Com. v. Nestor, T.

J-S37036-23

2024 PA Super 70

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS W. NESTOR :
:
Appellant : No. 460 EDA 2023

Appeal from the Judgment of Sentence Entered February 13, 2023
In the Court of Common Pleas of Chester County
Criminal Division at CP-15-CR-0002107-2022

BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.

OPINION BY MURRAY, J.: FILED APRIL 10, 2024

Thomas W. Nestor (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of driving under the influence of a

controlled substance (DUI), driving on roadways laned for traffic, and careless

driving.1 We affirm.

The trial court recounted the following factual history:

On August 15, 2021, Trooper [Nathan] Zimmerman was
working the 2 p.m. to 10 p.m. shift. At approximately 10:00 p.m.,
he and another trooper[, Trooper Nicholas Hornbaker,] had just
finished a call in the southern end of Chester County and were
driving their [respective] patrol vehicles back to the barracks on
State Route 896 northbound because it was the end of their shift.
While en[ ]route, Trooper Zimmerman noticed a yellow work truck
in front of him failing to maintain its lane of travel. Route 896 is
a two[-]lane road, and [the truck] was swerving both to the left
and the right[,] crossing the center line on the left and the white
fog line on the right. Trooper Zimmerman’s observations caused
concern, so he activated his [Motor Vehicle Recording system
____________________________________________

1 75 Pa.C.S.A. §§ 3802(d)(2), 3309(1), 3714(a).
J-S37036-23

(MVR)]. He continued to observe similar behavior after the MVR
was activated. When the MVR is activated, it tracks [] and records
a number of seconds [of footage taken prior to the activation].
The sound starts on the recording[] at the time that the MVR
button is pressed. The video recorded approximately four to five
minutes of [Appellant] driving before Trooper Zimmerman
initiated the stop.

After the MVR was activated, Trooper Zimmerman noted
four times that the truck crossed the center line and nine times
that it crossed the white fog line. During one of the times that the
vehicle crossed the fog line, the entire vehicle crossed the line and
was completely outside of the lane of travel. The road in that area
was curvy, with hills and oncoming traffic. These factors played a
role in [Trooper Zimmerman’s] decision to stop the vehicle. He
had observed the vehicle for approximately two miles before he
made the decision to activate the MVR.

Trial Court Opinion, 4/24/23, at 4-5 (citations to record omitted).

Trooper Zimmerman continued driving behind Appellant’s vehicle until

he identified a safe place to conduct a traffic stop. After Trooper Zimmerman

activated his emergency lights, Appellant pulled into a gas station parking lot.

Trooper Hornbaker also stopped in the parking lot to assist with the stop.

Once the truck stopped, Trooper Zimmerman called out the
traffic stop on his radio so that dispatchers would know what they
were doing. He could see the truck operator making erratic
movements inside the cab and could tell that he was on his
cellphone. Trooper Zimmerman could see the driver in the truck’s
left mirror, and based on his facial expressions and the way he
was moving, the driver appeared very agitated.

Trooper Zimmerman walked up to the driver’s side of the
truck, identified himself as a state trooper, and asked [Appellant]
… to step out of the vehicle. He did this based on [Appellant’s]
level of agitation and his impression that [Appellant] did not plan
to stop the truck when the trooper wanted him to do so. When
[Appellant] got out of the truck, he appeared very agitated and
upset. Trooper Zimmerman asked [Appellant] to hang up his
phone call and walk toward the front of his patrol vehicle. These

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are the instructions given anytime [police] ask a person to exit a
vehicle.

After he exited the vehicle, [Appellant] still seemed
agitated. As the trooper tried to briefly explain the reason for the
stop, [Appellant] immediately started making excuses as to why
he did nothing wrong. [Appellant] was very excitable and used “a
lot” of hand gestures. [Appellant] was extremely talkative and
acted in [a] way the trooper would not expect someone to act
after they were pulled over. [At trial,] Trooper Zimmerman was
asked [by the Commonwealth], “[D]id you talk to [Appellant]
specifically about the reason for the stop, which was the vehicles
[sic] leaving the lanes of travel?” He responded as follows:

Yes. I had [Appellant] come back to the front of my car. I
… tried to, first off, explain why I had stopped him and then
tr[ied to] ask him some questions about why that might
have been happening. [Appellant] made a lot of different
statements about the fact that he had been working a long
day. He kept telling me different people that I could call to
verify that he had been working at a certain place and how
long he had been working. I was under the impression that
there was something a little bit more going on based on
[Appellant’s] actions. I tried to ask him a little bit about any
alcohol or drug use. He denied alcohol use and drug use,
but he would become [] more agitated and more upset
anytime I tried to question him about any wrongdoing.

Id. at 6-8 (citations to record and footnote omitted).2

Trooper Zimmerman also observed that Appellant’s eyes were dilated:

[Appellant] was under the bright lights of the gas station parking
lot, and pupils normally constrict in bright lights. [Appellant’s]
pupils were not constricted[,] but instead were enlarged as if he
was in the dark. [Appellant’s] pupils also did not constrict when
the trooper shined his flashlight into [Appellant’s] eyes.
____________________________________________

2 During his non-jury trial, Appellant testified that he was not under the
influence of any drugs on the date of the stop. N.T., 11/2/22, at 90-91.
Appellant also testified about his work schedule that day, id. at 91, 93-96;
the difficulties he had steering the truck he had borrowed from a friend, id. at
92, 101-02; and an injury in his left leg, id. at 100-01.

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Id. at 8.

Trooper Zimmerman asked Appellant to submit to standard field

sobriety tests “based on [Appellant’s] actions, mood swings, agitation,

excessive or extreme talkativeness, and numerous complaints of dry mouth.”

Id. at 9 (citation to record omitted). Appellant initially refused, but eventually

agreed. Id. at 10.

The standard field sobriety tests that Trooper Zimerman had
[Appellant] complete were the horizontal gaze nystagmus test,
the walk and turn test, and the one-leg stand test. … Trooper
Zimmerman testified that the tests were not evaluated on a pass-
fail system, but were used to identify indicators of impairment.
During the instructional phase, the trooper always looks to see if
the person being tested starts too early or is unable to maintain
the instructional position.

Prior to starting the walk and turn test, Trooper Zimmerman
asked [Appellant] if he had physical problems or health issues that
would interfere with the performance of the tests. He explained
to [Appellant] that he would be doing a walking test. [Appellant]
stated that he had issues with the meniscus in his left knee and
stated that it only hurts when he sits down. Trooper Zimmerman
proceeded with the test.

During the instructions for the walk and turn test,
[Appellant] was unable to maintain his instructional position as
the trooper explained and demonstrated the test to him. During
the walking phase, there are six indicators that [Trooper
Zimmerman] looks for: missing heel to toe steps, stepping off the
line, raising arms for balance, conducting an improper turn, and
stopping. In this case, as he began the test, [Appellant]
immediately raised his arms for balance. [Appellant] stumbled
and staggered while trying to get started a couple of times, and[,
according to Trooper Zimmerman,] those actions were indicators
of starting and stopping the test.

[Appellant] also stepped off the line and raised his arms for
balance. Once [Appellant] finally got his footing[,] he took the
incorrect number of steps on the first set of steps. He did an

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improper turn, stopped again, and had difficulty resetting his feet.
[Appellant] stumbled forward a step or so and stepped back a
couple of times before starting the second set of nine steps.
[Appellant] raised his arms for balance and stepped off the line on
the return steps. Once [Appellant] started having some issues
during the test, he started talking about the pain in his knee.

Id. at 10-11 (citations to record omitted).

During the one-leg stand test, Appellant was able to stand on one leg

without swaying. Id. at 12. Appellant was unable to keep his arms flat against

his sides. Id.

Next, Trooper Zimmerman administered Advance Roadside
Impaired Driving Enforcement (ARIDE) tests, in which Trooper
Zimmerman had received specialized training.

The first ARIDE test administered to [Appellant] was the lack
of convergence test. Trooper Zimmerman testified that the
subject is supposed to stand still and move only his eyes [as the
trooper] moves a pen around [the subject’s] face and brings it
close to his nose. [Trooper Zimmerman] looks to see if the
subject’s pupils converge as the pen comes close to his nose. The
trooper did not note a lack of convergence on [Appellant], so there
were no indicators of impairment on that test.

The next test that was administered was the Modified
Romberg Balance Test, where the subject tilts his head back,
closes his eyes, and estimates the passage of thirty seconds.
[Trooper Zimmerman] timed the test using a stopwatch. The
indicators include the internal clock estimation, tremors in the
eyelids or extremities, and swaying of the body. When [Appellant]
completed this test, he estimated the passage of thirty seconds in
approximately 35 seconds. Trooper Zimmerman testified that
pursuant to the ARIDE manual, five seconds over is not
necessarily an indicator of any kind of impairment. The trooper
did not note any swaying in [Appellant], but his eyelids had severe
tremors and his arms and hands were twitching.

Id. at 12-13 (citations to record omitted).

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Trooper Zimmerman arrested Appellant for suspected DUI – controlled

substance, based on his observations of Appellant during the standard field

sobriety and ARIDE tests, as well as Appellant’s behavior during the stop.

Appellant refused to submit to chemical testing.

In July 2022, the Commonwealth charged Appellant, via criminal

information, with the aforementioned offenses.3 After a non-jury trial, the

trial court convicted Appellant of all offenses. On February 13, 2023, the trial

court sentenced Appellant to 72 hours to 6 months in prison. The court also

ordered Appellant to pay fines and costs, complete Alcohol Highway Safety

School, undergo a CRN evaluation, and submit to a drug and alcohol

evaluation and complete recommended treatment.

Appellant timely appealed. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

Appellant raises the following issues for review:

1. Did the trial [c]ourt err in admitting and relying on opinion
evidence from a lay witness regarding the influence of a drug
without an adequate basis in training and experience, and without
an adequate factual basis?

2. Was the trial evidence insufficient to establish beyond a
reasonable doubt that [A]ppellant operated a vehicle while under
the influence of a drug?

3. Was the trial evidence insufficient to establish beyond a
reasonable doubt that [Appellant] operated a vehicle while
impaired by a drug?
____________________________________________

3 The criminal information indicated a penalty enhancement for Appellant’s
refusal of testing. Information, 7/29/22.

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Appellant’s Brief at 2.

In his first issue, Appellant argues the trial court erred by allowing

Trooper Zimmerman to testify as to his belief, based on his training and

experience, that Appellant was impaired by a controlled substance. Id. at 10.

Appellant contends Trooper Zimmerman was not a qualified expert and could

not “offer either his ‘impression’ or his opinion that [Appellant’s] twitches

established his use of a stimulant, as opposed to some other cause.” Id. at

11.4

We address this issue mindful of our standard of review:

Questions concerning the admissibility of evidence are within the
sound discretion of the trial court and we will not reverse a trial
court’s decision concerning admissibility of evidence absent an
abuse of the trial court’s discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or
partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused[,] and it is the duty of the appellate court
to correct the error.

Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation

omitted).

____________________________________________

4 Appellant does not cite the Pennsylvania Rules of Evidence pertaining to
opinion testimony by lay and expert witnesses. See Pa.R.A.P. 2119(a)
(providing the argument shall include “such discussion and citation of
authorities as are deemed pertinent.”).

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Pennsylvania Rule of Evidence 701 governs the admission of opinion

testimony by lay witnesses:

If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

Pa.R.E. 701. “Generally, lay witnesses may express personal opinions related

to their observations on a range of subject areas based on their personal

experiences that are helpful to the factfinder.” Commonwealth v. Berry,

172 A.3d 1, 3-4 (Pa. Super. 2017). “[L]ay testimony is intended to describe

something that jurors otherwise had not been able to experience for

themselves, by drawing upon the sensory and experiential observations that

the witness made firsthand.” Commonwealth v. Rose, 172 A.3d 1121, 1131

(Pa. Super. 2017) (citing United States v. Kilpatrick, 798 F.3d 365, 379

(6th Cir. 2015)).5

____________________________________________

5 Because Pa.R.E. 701 is identical to Federal Rule of Evidence 701, see Pa.R.E.

701, Comment, Pennsylvania courts have used federal court decisions
interpreting F.R.E. 701 as a guide in interpreting Pa.R.E. 701. See Rose, 172
A.3d at 1130. Although this Court is not bound by decisions of intermediate
federal appellate courts, we may look to them for guidance. Id. (citing
Commonwealth v. Ragan, 742 A.2d 390, 396 (Pa. 1999)).

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As the Third Circuit has stated, “the reliability of lay opinion testimony

should be assessed in light of the witness’s relevant specialized knowledge

and experience.” United States v. Savage, 970 F.3d 217, 286 (3d Cir.

2020). Further, in distinguishing between specialized lay witness testimony

under F.R.E. 701 and expert testimony under F.R.E. 702, the Savage Court

noted:

[w]hen a lay witness has particularized knowledge by virtue of her
experience, she may testify—even if the subject matter is
specialized or technical—because the testimony is based on the
layperson’s personal knowledge rather than on specialized
knowledge within the scope of Rule 702. Thus, as long as the
technical components of the testimony are based on the lay
witness’s personal knowledge, such testimony is usually
permissible under Rule 701.

Id. (quoting United States v. Fulton, 837 F.3d 281, 301 (3d Cir. 2016))

(emphasis added; footnote, paragraph break and quotation marks omitted).

Pennsylvania courts have generally agreed with federal courts that a

witness with the requisite observations and experience may offer a lay opinion

to establish DUI – controlled substance impairment under section 3802(d)(2).

In Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011), the Pennsylvania

Supreme Court rejected a blanket rule that the Commonwealth introduce

expert testimony to establish drug impairment. The Court held instead, “[t]he

need for expert testimony in a []section 3802(d)(2) prosecution must be

evaluated on a case-by-case basis, taking into account … the nature and

overall strength of the Commonwealth’s evidence….” Id. at 1239. The

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Griffith Court rejected the need for expert testimony because, under the

circumstances of that case, other evidence of impairment was present. See

id. at 1240. In particular, a citizen witnessed Griffith’s hazardous driving; a

veteran police officer observed that Griffith had “difficultly standing, [was] off

balance, and she was constantly having to catch herself on her vehicle”; her

hands were shaking; and she was unable to perform field sobriety tests. Id.

at 1233, 1240 (some punctuation omitted). Thus, under circumstances where

“[a]n experienced police officer closely observed [Griffith’s] behavior,

demeanor, unsteadiness, and inability to perform field sobriety tests,” and

Griffith “admitted taking one prescription medication in the morning[,]” the

Court affirmed a section 3802(d)(2) conviction in the absence of expert

testimony. Id. at 1240.

This Court has also held section 3802(d)(2) does not require expert

testimony where the totality of the circumstances, including an experienced

officer’s observations, prove the driver was under the influence of a controlled

substance. See Commonwealth v. Spence, 290 A.3d 301, 309-10 (Pa.

Super. 2023) (concluding evidence was sufficient to sustain a section

3802(d)(2) conviction without expert testimony, where the appellant led a

trooper on a high-speed chase; the trooper smelled marijuana emanating from

the appellant’s vehicle; the appellant admitted to smoking marijuana prior to

driving; and the appellant performed inadequately on field sobriety tests);

Commonwealth v. DiPanfilo, 993 A.2d 1262, 1268 (Pa. Super. 2010)

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(concluding evidence was sufficient to sustain a section 3802(d)(2) conviction

without expert testimony, where an eyewitness saw the appellant drive onto

a sidewalk and hit a handicapped sign; a veteran officer observed the

appellant’s lethargic behavior, slurred speech, and particularly grey skin; and

appellant slowly jogged away from the responding officer before tripping into

a stairwell).

To support his claim that Trooper Zimmerman gave improper expert

testimony, Appellant relies on Commonwealth v. Gause, 164 A.3d 535 (Pa.

Super. 2017) (en banc). In Gause, a police officer stopped the appellant’s

vehicle after observing that the vehicle lacked illuminated taillights. Id. at

535. Although the appellant admitted he had consumed one beer, he did not

fumble while providing his license and registration; his speech was

not slurred; and he had no difficulty with balance and coordination

(notwithstanding portions of the field sobriety tests that the appellant

completed with varying levels of success). Id. The officer also administered

the Romberg test, which she administers for suspected marijuana use. Id.

During the test, she observed the appellant’s eyelids tremoring. Id. The

officer did not testify that she smelled marijuana or otherwise observed

evidence of recent marijuana use. See id. at 539.

At trial, the officer in Gause opined that based on the eyelid tremors,

the appellant was under the influence of marijuana. Id. at 536. This Court,

sitting en banc, held that the officer’s testimony was inadmissible. Id. at 539;

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see also id. (“[I]t is eminently clear that attributing body or eyelid tremors

to marijuana use requires specialized knowledge within the scope of Pa.R.E.

702.”). Significantly, there was no additional evidence pointing to

marijuana use by the appellant, i.e., an admission by the appellant, the

odor of marijuana emanating from the car or his person, or physical evidence

suggesting recent marijuana use. Id. at 538-39. Therefore, although the

officer “could testify as to her observations of an apparent physical

condition[,] a qualified expert [wa]s required to provide the connection

between the symptoms observed and the drug allegedly influencing the

[appellant’s] driving.” Id. at 539.

Thus, Pennsylvania Courts, including Gause, recognize the need for

expert testimony must be evaluated on “a case-by-case basis, taking into

account not just the specific drug at issue … but also the nature and overall

strength of the Commonwealth’s evidence.” Id. at 538 (quoting Griffith, 32

A.3d at 1239). In fact, the Gause Court reiterated the Supreme Court’s

holding in Griffith: “[E]xpert testimony is not necessary to establish

impairment under []section 3802(d)(2) where there exists other independent

evidence of impairment.” Id. (quoting Griffith, 32 A.2d at 1239). Thus, our

decision in Gause did not alter the general principle that the need for expert

testimony in a section 3802(d)(2) case requires a case-by-case factual

analysis.

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Based on our review of the certified record and trial court opinion in this

matter, we find Gause distinguishable due to the presence of “other

independent evidence of [Appellant’s] impairment.” See Gause, 164 A.3d at

538. The totality of Trooper Zimmerman’s observations, taking into account

his relevant training and experience, permitted the admission of his lay

opinion under Pa.R.E. 701.

Trooper Zimmerman relied on several personal observations, upon

which the trial court subsequently credited, in opining Appellant was under

the influence of a “drug or combination of drugs” that rendered him incapable

of safe driving. See Trial Court Opinion, 4/24/23, at 13-14, 27, 30, 34-35.6

Trooper Zimmerman personally observed Appellant’s driving for

approximately two minutes before he activated his MVR. N.T., 11/2/22, at

14-15. “The [MVR] recorded approximately four to five minutes of

[Appellant’s] driving before Trooper Zimmerman initiated the stop.” Trial

Court Opinion, 4/24/23, at 5. While driving behind Appellant, Trooper

Zimmerman observed Appellant’s vehicle swerving and crossing both the

center and fog lines multiple times. N.T., 11/2/22, at 14-15. Trooper

____________________________________________

6 We emphasize that the trial court made clear credibility determinations,
which we will not usurp on appeal. See Commonwealth v. Perrin, 291 A.3d
337, 346 (Pa. 2023) (explaining a factfinder has the “sole authority to make
determinations as to witness credibility.”). The trial court found Trooper
Zimmerman’s testimony “extremely credible.” Trial Court Opinion, 4/24/23,
at 27. By contrast, the court found Appellant’s “testimony that his difficulty
driving … was due to his unfamiliarity with the truck” was “simply not
credible.” Id. at 28; see also id. at 29 (stating Appellant “lacks credibility”).

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Zimmerman’s testimony and the MVR confirm Appellant displayed “very major

issues with safety and maintaining that lane of travel.” Id. at 16; Trial Court

Opinion, 4/24/23, at 5. Further, having reviewed the MVR, the trial court

determined Appellant’s driving “was actually extremely hazardous.” Trial

Court Opinion, 4/24/23, at 27. The trial court also noted the MVR captured

Appellant’s very upset, agitated, and excitable demeanor upon being stopped.

Id. at 7; see also N.T., 11/2/22, at 18-20; id. at 24 (highlighting Appellant’s

mood swings and complaints of dry mouth). The trial court also noted that

Appellant was very talkative, and upon exiting the vehicle, began to make

excuses for being unable to maintain the lane of travel. Trial Court Opinion,

4/24/23, at 7. In addition, Trooper Zimmerman testified that Appellant’s

pupils were dilated and did not respond to a flashlight despite the bright lights

in the parking lot. N.T., 11/2/22, at 23, 28.7

Trooper Zimmerman testified he conducted field sobriety tests and

ARIDE testing, having been trained in, and having experience with, both. See

N.T., 11/2/22, at 11-12; see also id. at 32 (Trooper Zimmerman explaining

he is trained to look for indicators of impairment, but not to make pass/fail

conclusions regarding the tests). During this testing, Trooper Zimmerman

observed several indicators of impairment on the walk and turn test, one

indicator of impairment on the one-leg stand test, and no indicators of

____________________________________________

7 Trooper Zimmerman specifically testified that Appellant did not smell like
alcohol, and Appellant denied alcohol consumption. See N.T., 11/2/22, at 23.

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impairment on the lack of convergence test. See id. at 32-36. On the

Modified Romberg Balance test, Appellant displayed eyelid tremors and severe

hand tremors. Id. at 36, 40, 52.

Trooper Zimmerman then testified,

[b]ased on the totality of everything I saw, from [Appellant’s]
driving, to my contact with him, to my testing with him, I was
under the impression that he was not safe to drive a vehicle and
that he was under the – he was being affected by some sort of
illegal substance.

Id. at 41-42 (emphasis added). Contrary to Appellant’s assertion, Trooper

Zimmerman did not reach his conclusion based on eye and hand tremors

alone. Rather, Trooper Zimmerman relied on the totality of his observations,

including Appellant’s mood swings, dilated pupils, ongoing complaints of dry

mouth, general excitability and agitation, difficulty in performing field sobriety

tests, and indicators displayed during the ARIDE tests. See id.; see also

Trial Court Opinion, 4/24/23, at 4 (noting Trooper Zimmerman’s experience

in conducting field sobriety tests over 100 times), 35 (referencing Trooper

Zimmerman’s training and experience).

Critically, unlike the officer in Gause, “Trooper Zimmerman did not

voice an opinion as to which controlled substance he suspected [Appellant]

had ingested….” Trial Court Opinion, 4/24/23, at 34. Cf. Gause, 164 A.3d at

539 (concluding the officer’s opinion that eyelid tremors resulted from

marijuana use required specialized knowledge and was thus inadmissible as

lay opinion). Rather, Trooper Zimmerman opined that Appellant was impaired

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by a stimulant.8 N.T., 11/2/22, at 42. As the trial court observed, “Trooper

Zimmerman testified that based on his training, experience, and numerous

prior interactions with impaired individuals, he believed [Appellant] was acting

consistent with someone that was impaired by a controlled substance

stimulant.” Id. at 34-35.9

Upon careful review, we conclude the trial court did not err or abuse its

discretion by admitting Trooper Zimmerman’s lay opinion that Appellant was

under the influence of a stimulant, which impaired his ability to safely operate

____________________________________________

8 The term “stimulant” encompasses a variety of substances and refers to the

effect of the drug. As the Drug Enforcement Agency has reported, stimulants
speed up the body’s systems, and high-dose use of stimulants is frequently
associated with, among other symptoms, agitation, hostility, and aggression.
See https://www.dea.gov/sites/default/files/2020-06/Stimulants-2020.pdf
(last accessed Mar. 21, 2024). Additionally, the Alcohol and Drug Foundation
has stated, “stimulants are a class of drugs that speed up messages traveling
between the brain and body.” https://adf.org.au/drug-facts/stimulants/ (last
accessed Mar. 21, 2024). “Stimulants include caffeine, nicotine,
amphetamines and cocaine.” Id. The symptoms of heavy use include, inter
alia, anxiety, tension, tremors, and seizures. Id.

9 Finally, we recognize that Appellant refused a blood test. As this Court has
stated,

we cannot ignore the fact that [the a]ppellant refused a blood test.
Appellant seems to take the position that: (1) expert testimony is
always necessary in illegal-drug cases; [and] (2) the
Commonwealth did not produce an expert…. [T]he flaw in this
argument is that it would permit cocaine users (and presumably
other illegal drug users) to drive under the influence of those
drugs and avoid prosecution entirely simply by refusing a blood
test. We refuse to countenance this absurd result.

DiPanfilo, 993 A.2d at 1268 (footnote omitted).

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the vehicle. Trooper Zimmerman’s opinion was based on his observations and

informed by his training and experience as a police officer. Under the totality

of these circumstances, expert testimony was not necessary to support

Appellant’s section 3802(d)(2) conviction. Therefore, Appellant is not entitled

to relief on his first claim.

In his second and third issues, Appellant challenges the sufficiency of

the evidence supporting his DUI conviction. We address these claims

together. Appellant asserts the Commonwealth failed to establish that he

operated a vehicle while under the influence of a drug. Appellant’s Brief at

12. Appellant points out that troopers did not observe drugs in his vehicle.

Id. at 13-14. According to Appellant, the trial court’s reliance on Trooper

Zimmerman’s opinion in finding that Appellant was under the influence of a

stimulant was manifestly improper. Id. at 14.

Appellant also argues there was insufficient evidence to establish that

he operated a vehicle while impaired by a controlled substance. Id. Appellant

emphasizes his inconsistent performance on the field sobriety tests. Id. at

14-15. He further states, “the reliability of the walk-and-turn test could have

been affected by [his] leg injuries.” Id. at 14. Appellant claims his failure to

maintain a single lane while driving, without more, did not sufficiently

establish that he was impaired. Id. at 15.

When reviewing sufficiency challenges, we adhere to the following:

The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light

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most favorable to the verdict winner, this is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated[,] and all evidence actually received must be
considered. Finally, the finder of fact[,] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.

Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011)

(citation omitted).

Appellant was convicted under Section 3802(d)(2) of the Vehicle Code,

which provides:

(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:

***

(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the individual’s
ability to safely drive, operate or be in actual physical control
of the movement of the vehicle.

75 Pa.C.S.A. § 3802(d)(2).

This Court has explained,

Section 3802(d)(2) does not require that any specific amount or
specific quantity of the drug be proven in order to successfully
prosecute under that section. Rather, the Commonwealth must

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simply prove that, while driving or operating a vehicle, the
accused was under the influence of a drug to a degree that
impaired his or her ability to safely drive that vehicle.

Commonwealth v. Hutchins, 42 A.3d 302, 307 (Pa. Super. 2012) (emphasis

in original; citations and quotation marks omitted). Under Section

3802(d)(2), a drug need not be detectable in a defendant’s body. Griffith,

32 A.3d at 1237. Further, expert testimony is not required to establish that

a defendant’s inability to drive safely was caused by a drug or combination of

drugs. Id. at 1238. “Instead, impairment evidence should be drawn from the

totality of the factual circumstances.” Commonwealth v. Spence, 290 A.3d

301, 309 (Pa. Super. 2023). “Rather than insist on proof that may lie

exclusively within Appellant’s own bloodstream, which he refused to provide,

we will instead turn to the totality of the Commonwealth’s direct and

circumstantial evidence.” DiPanfilo, 993 A.2d at 1268.

Instantly, the trial court explained,

it is clear to this [c]ourt that there was more than sufficient
evidence to establish that [Appellant] drove under the influence
of the controlled substance that rendered him incapable of safe
driving. First, there is no dispute that [Appellant] was driving the
vehicle on the night in question. Second, it is clear based on the
testimony of [Trooper Zimmerman] and the [c]ourt’s viewing of
the MVR that [Appellant] was incapable of safe driving. The only
question is whether controlled substances caused [Appellant’s]
inability to safely operate the vehicle, and the Commonwealth
met its burden by proving this element through
circumstantial evidence.

… The combination of the [MVR] and Trooper Zimmerman’s
extremely credible testimony established [Appellant] was under
the influence of a controlled substance that rendered him
incapable of safe driving.

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J-S37036-23

Despite [Appellant’s] argument that his driving was safe
because he would move away from the center lanes when
oncoming vehicles were approaching, his driving was actually
extremely hazardous. Trooper Zimmerman observed
[Appellant’s] vehicle as he was headed back to the barracks after
the end of his shift. The trooper observed [Appellant] failing to
maintain his lane of travel, swerving left over the center line and
right over the fog line severely enough that the trooper became
concerned and activated his MVR. After the MVR was activated,
the truck crossed the center line four times and the white fog line
nine times. During one of the times the truck crossed the fog line,
the entire vehicle crossed over the line and was completely outside
the lane of travel. It was nighttime and the roadway was curvy
and hilly. Oncoming traffic was present at the time. Because of
the location, Trooper Zimmerman was unable to stop [Appellant]
as soon as he wanted to do so because stopping on a curve or a
hill would have been dangerous to [Appellant], himself, and [the]
motoring public. …

[Appellant’s] testimony that his difficulty driving the truck
and swerving was due to his unfamiliarity with the truck and a
recent steering box replacement, is simply not credible. Just like
on the MVR[,] where [Appellant] started making excuses as to
why he did nothing wrong and telling the trooper whom he should
be contacting on [Appellant’s] behalf, [Appellant’s] testimony at
trial appeared to be a litany of excuses that was not supported by
evidence. …

[Appellant’s] excuses continued throughout the field
sobriety tests, beginning when he was not doing well on the walk
and turn test[,] and his excuses can be heard in the MVR. Prior
to starting the tests, Trooper Zimmerman asked [Appellant] if he
had any physical problems or health issues that would interfere
with the performance of the tests, including a walking test.
[Appellant] stated that he had meniscus [sic] in his left knee that
only hurts when he is seated. However, at the time of trial,
[Appellant] testified that “the consistency of the leg is I could be
walking for 100 yards and at 101 yards, it could give out.”
[Appellant] lacks credibility.

During the walk and turn test, [Appellant] immediately
raised his arms for balance, stumbled and staggered a couple of
times while trying to get started, stepped off the line, took extra

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J-S37036-23

steps, did an improper turn, stopped again, had difficulty resetting
his feet, stumbled forward a step or two, stepped back a couple
of times before starting the second set of return steps, raised his
arms for balance again, and stepped off the line on the return
steps. Prior to starting the test, [Appellant] is observed getting
out of the truck and walking around the parking lot with no limping
or leg issues observed. Once [Appellant] began the test and could
not perform properly[,] he can be heard blaming his performance
on his alleged knee issues.

[Appellant] performed well on the one-leg stand test, except
he failed to keep his arms at his side as instructed. During the
Modified Romberg Balance test, [Appellant] estimated the
passage of thirty seconds in approximately thirty-five seconds,
had severe eyelid tremors, and had twitching hands. In addition
to the hazardous driving and the test indicators, there were
other factors within the totality of the circumstances that
supported the sufficiency of the evidence for [Appellant’s]
conviction.

[Appellant] was very agitated and upset when he exited the
truck. He immediately started making excuses, and became more
agitated and upset when [Trooper Zimmerman] tried to question
him. [Appellant] gave the trooper a list of people to call to vouch
for him, including the Oxford [m]agistrate…. Based on his training
and experience, Trooper Zimmerman testified that [Appellant]
was not acting in a way he expected someone to act when pulled
over. At first [Appellant] denied drug and alcohol use, but later
stated that marijuana may be found in his system as he used it
within thirty days.

In addition to the above, [Appellant’s] physical appearance
was [] evidence that he was under the influence of a controlled
substance. [Appellant’s] eyes were dilated under the bright lights
of the gas station parking lot and his pupils did not constrict when
Trooper Zimmerman shined his flashlight directly in [Appellant’s]
eyes. [Appellant’s] demeanor including mood swings, his multiple
complaints of dry mouth while at the stop, and his refusal of the
blood test[10] were additional factors noted in the totality of the
____________________________________________

10 Vehicle Code section 1547(e) provides:

(Footnote Continued Next Page)

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J-S37036-23

circumstances. Trooper Zimmerman testified that based on his
training, experience, and numerous prior interactions with
impaired individuals, he believed [Appellant] was acting
consistent with someone that was impaired by a controlled
substance stimulant.

Trial Court Opinion, 4/24/23, at 27-30 (footnote and emphasis added;

brackets and citations to record omitted).

We discern no error. The trial court found Trooper Zimmerman credible,

and Appellant not credible. See LaBenne, 21 A.3d at 1289 (“[T]he finder of

fact[,] while passing upon the credibility of witnesses and the weight of the

evidence produced, is free to believe all, part or none of the evidence.”);

Commonwealth v. Andrulewicz, 911 A.2d 162, 166 (Pa. Super. 2006)

(stating “it is for the fact finder to make credibility determinations”). Our

review confirms that the evidence, viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient for the trial court, as finder

of fact, to determine that Appellant operated a vehicle while under the

____________________________________________

(e) Refusal admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other violation of
this title arising out of the same action, the fact that the defendant
refused to submit to chemical testing as required by subsection
(a) may be introduced into evidence along with other testimony
concerning the circumstances of the refusal. No presumptions
shall arise from this evidence but it may be considered along with
other factors concerning the charge.

75 Pa.C.S.A. § 1547(e).

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influence of a controlled substance to a degree which impaired his ability to

drive safely. Thus, there is no merit to Appellant’s sufficiency challenges.

Judgment of sentence affirmed.

Judge Sullivan joins the Opinion.

P.J.E. Bender files a Dissenting Opinion.

Date: 4/10/2024

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