J-A32004-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JASON PAUL SCHROCK, :
:
Appellee : No. 841 MDA 2017
Appeal from the Order Entered May 10, 2017
in the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000775-2016
BEFORE: OTT, DUBOW, and STRASSBURGER,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED JANUARY 10, 2018
I agree with the Majority that, under Commonwealth v. Gause, 164
A.3d 532 (Pa. Super. 2017), the Commonwealth is entitled to no relief from
this Court regarding the testimony of Trooper Frantz that the droopy eyelids
and pale complexions of Schrock and Rock were indicative of opiate use.
Majority Memorandum at 12. Such testimony is based upon specialized
scientific knowledge beyond the ken even of laypersons familiar with
marijuana users. Further, because he was not offered as an expert witness,
I agree that Trooper Frantz was properly precluded from testifying as to his
training in becoming a drug recognition expert.
However, I would reverse the trial court’s order insofar as it precluded
Trooper Frantz’s testimony that he smelled the odor of narcotics and that the
*Retired Senior Judge assigned to the Superior Court.
J-A32004-17
paraphernalia found in Rock’s kit was used to inject drugs, as I believe that
testimony falls within Rule 701 rather than Rule 702. One does not apply an
expert methodology using scientific, technical, or other specialized knowledge
to identify the source of a particular aroma. Any lay person who has smelled
an odor in the past can identify it when smelling it again. Indeed, in Gause,
this Court distinguished the expert opinion that eyelid tremors are associated
with marijuana use from “the typical and obvious indicia of marijuana use,
such as the distinct odor of burnt marijuana….” Gause, 164 A.3d at 539.
Similarly, Trooper Frantz required no scientific or technical training
beyond the ken of an ordinary layperson to know that narcotics users often
keep a kit of tools to facilitate drug consumption. Anyone who is familiar with
drug users gains this knowledge through personal observations, and Trooper
Frantz has familiarity with drug users. “A witness may state relevant facts
known to him, because of experience, even though he is not regarded as an
expert whose opinion would be admissible on a hypothetical inquiry.”
Commonwealth v. Worrell, 419 A.2d 1199, 1202 (Pa. Super. 1980)
(internal quotation marks and citation omitted) (holding, in prosecution for
receipt of a stolen automobile transmission, that trooper “did not testify as an
expert nor was his testimony expert testimony in the traditional sense” when
he tesfied that the VIN had been ground off of a vehicle’s frame, and that the
front end of the vehicle was from a different model).
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J-A32004-17
Therefore, I would affirm in part and reverse in part the order disposing
of Schrock’s motion in limine.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/18/2018
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