J-S03024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOAN HELDIBRIDLE
Appellant No. 922 WDA 2016
Appeal from the Judgment of Sentence Dated May 18, 2016
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000157-2014
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED MAY 12, 2017
Appellant Joan Heldibridle appeals from the judgment of sentence
imposed after she was convicted of driving under the influence and two
summary traffic offenses. We affirm.
Appellant was arrested on October 17, 2013, and subsequently
charged with two provisions of the Vehicle Code prohibiting driving under the
influence of alcohol, 75 Pa.C.S. § 3802: specifically, Section 3802(a)(1),
which prohibits driving after imbibing sufficient alcohol to render an
individual incapable of safely driving; and Section 3802(a)(2), which
prohibits driving after imbibing sufficient alcohol to cause a blood alcohol
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*
Retired Senior Judge assigned to the Superior Court.
J-S03024-17
concentration between 0.08 and 0.10.1 Appellant was also charged with
disregarding a single traffic lane, careless driving, failing to wear a seatbelt,
and public drunkenness.2
At a bench trial held on March 30, 2016, Trooper Scott Urban testified
as follows: on the night of October 17, 2013, he was on patrol in the area of
State Route 22 eastbound at State Route 219 in Cambria County. In that
capacity, he stopped Appellant after he saw her leave her lane three times
and then swerve within her lane. As he approached Appellant’s car, Trooper
Urban smelled alcohol. Appellant was not wearing a seatbelt. Trooper
Urban asked Appellant if she had been drinking, and she responded that she
had. Appellant told the trooper that she had been eating chicken wings, and
that was probably why she had been driving poorly. N.T., 3/30/16, at 6-10,
23.
Trooper Urban administered field sobriety tests, specifically the
horizontal gaze nystagmus (HGN) test,3 the one-legged stand, and the nine-
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1
This was Appellant’s second DUI offense.
2
75 Pa.C.S. §§ 3309(1), 3714(a), 4581(a)(2)(ii), and 18 Pa.C.S. § 5505.
3
Appellant objected to admission of evidence regarding the HGN test on the
ground that the test had been “disproven” and therefore was inadmissible.
See N.T., 3/30/16, at 12. The trial court did not expressly sustain or
overrule the objection. The court acknowledged that because this was a
bench trial and the objection went to the admissibility of proffered evidence,
“I can disregard it if --.” N.T., 3/30/16, at 12. Defense counsel then
interrupted and said, “I understand. I just wanted to make sure I make the
objection because I don’t know if I’m precluded if I don’t object to it.” Id.
(Footnote Continued Next Page)
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step walk and turn. Appellant failed all of these tests. Appellant told the
trooper that she was used to wearing high heels and had trouble with the
sobriety tests because she was wearing flat shoes. Trooper Urban tried four
times to administer a portable breath test, but Appellant was unable or
unwilling to cooperate. When Trooper Urban tried to arrest Appellant, she
fled over an embankment. Trooper Urban returned Appellant to the police
car and took her to Conemaugh Memorial Medical Center, where she
consented to a blood draw. Testing of the blood sample revealed a blood
alcohol concentration of 0.084. N.T., 3/30/16, at 10-23.
Trooper Urban’s dashboard camera recorded the events leading up to
Appellant’s arrest. That video was displayed by the Commonwealth and
offered into evidence by Appellant. See N.T., 3/30/16, at 9, 18-20, 32, 49;
Ex. D-1. After watching the video at trial, Trooper Urban testified that
Appellant appeared to have slurred speech. N.T., 3/30/16, at 29.
Gwen Yutzy, the medical laboratory technician who tested Appellant’s
blood sample, testified regarding Conemaugh Medical Center’s “chain of
custody” form, Commonwealth Ex. C. She testified that the form stated that
phlebotomist Dave Rich drew the specimen from Appellant at 11:31 p.m.
and gave it to Yutzy at 11:46 p.m. Appellant objected to testimony
_______________________
(Footnote Continued)
As discussed in the text, counsel made no other objection to admissibility of
the test.
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regarding Rich’s actions, “unless he’s here to testify.” 4 The Commonwealth
argued that Exhibit C was a business record, and the trial court overruled
Appellant’s objection. N.T., 3/30/16, at 59-62. Yutzy also testified
regarding Commonwealth Exhibit D, a computer printout of the results of
Appellant’s blood test. Appellant objected based on a lack of foundation;
that objection was overruled. Id. at 63-64.
After Yutzy’s testimony, the Commonwealth moved for admission of
Exhibits A, B, C, and D (Chemical Testing Warnings form; Conemaugh
Medical Center blood draw form; Conemaugh Medicolegal Specimen
Transmission Record (chain of custody form); and lab test results).
Appellant objected. When asked the basis for the objection, Appellant
responded: “Chain of custody, Your Honor. Objection to the chain of custody
as to offering – although it’s been testified to, unless – and if he’s resting,
they haven’t offered the person who drew the blood.” N.T., 3/30/16, at 79.
The trial court overruled the objection and explained that chain of custody
goes toward the weight of the evidence, rather than its admissibility. Id.
The Commonwealth then rested.
Appellant testified in her own defense. She admitted that when she
stopped on her way home from work to pick up food, she drank “some”
alcohol. She denied being intoxicated. She said that immediately before
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4
Dave Rich did not testify at trial.
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she was stopped her box of wings had started to slide off the passenger
seat, and when she reached over to grab it, she turned the steering wheel.
She testified that the smell in her car was of garlic and barbeque sauce, not
alcohol. She also contended that because she was wearing flip-flops while
driving, and she was used to wearing shoes with high heels, she was
uncomfortable standing outside of the car. She admitted that she fled after
Trooper Urban told her she was under arrest, but said she only went about
ten feet. N.T. 3/30/16, at 87-100.
The trial court found Appellant guilty of DUI under Section 3802(a)(1)
(incapable of driving safely), failing to drive within a single traffic lane, and
failing to use a seatbelt. The court found Appellant not guilty of DUI under
Section 3802(a)(2) (alcohol concentration between 0.08 and 0.10), careless
driving, and public drunkenness.
On May 18, 2016, the trial court sentenced Appellant to five days to
six months’ confinement, with the five days to be served on house arrest,
followed by automatic parole. On June 17, 2016, Appellant filed a timely
notice of appeal. On appeal, Appellant raises the following issues, as stated
in her brief:
Whether the trial court committed reversible error in admitting
evidence of Appellant’s performance on the horizontal gaze
nystagmus (HGN) test?
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Whether the trial court committed reversible error in admitting
testimony and evidence of Appellant’s blood alcohol
concentration?
Appellant’s Brief at 6.5
Both of Appellant’s issues challenge evidentiary rulings made by the
trial court. Our standard of review for such evidentiary claims is deferential:
The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation
marks and citations omitted), cert. denied, 137 S. Ct. 92 (2016).
HGN Test
In her first issue, Appellant argues that the trial court erred in
admitting Trooper Urban’s testimony regarding her performance on the HGN
test because the Commonwealth did not establish an adequate foundation.
Specifically, she claims the Commonwealth did not offer testimony that
“HGN testing had gained general acceptance in the scientific community,
particularly in the field of medical science represented by ophthalmology.”
Appellant’s Brief at 20 (quoting Commonwealth v. Stringer, 678 A.2d
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5
We note with disapproval that although the reproduced record contains a
copy of the trial court’s opinion, Appellant failed to append a copy of the
opinion to her brief, as required by Pennsylvania Rule of Appellate Procedure
2111(b).
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1200, 1202 (Pa. Super.), appeal denied, 686 A.2d 1310 (Pa. 1996)).
Appellant asserts that the admission of evidence regarding the HGN test was
not harmless because the other evidence of her guilt was not overwhelming.
This issue is waived.
Our rules of appellate procedure provide that “[i]ssues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). “This requirement bars an appellant from raising
‘a new and different theory of relief’ for the first time on appeal.”
Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super.) (citation
omitted), appeal denied, 425 MAL 2016 (Pa. Nov. 22, 2016). The
Supreme Court of Pennsylvania has explained the rationale behind this
principle:
Requiring a timely specific objection to be taken in the trial court
will ensure that the trial judge has a chance to correct alleged
trial errors. This opportunity to correct alleged errors at trial
advances the orderly and efficient use of our judicial resources.
First, appellate courts will not be required to expend time and
energy reviewing points on which no trial ruling has been made.
Second, the trial court may promptly correct the asserted error.
With the issue properly presented, the trial court is more likely
to reach a satisfactory result, thus obviating the need for
appellate review on this issue. Or if a new trial is necessary, it
may be granted by the trial court without subjecting both the
litigants and the courts to the expense and delay inherent in
appellate review. Third, appellate courts will be free to more
expeditiously dispose of the issues properly preserved for
appeal. Finally, the exception requirement will remove the
advantage formerly enjoyed by the unprepared trial lawyer who
looked to the appellate court to compensate for his trial
omissions.
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Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 116-17 (Pa. 1974)
(footnotes omitted).
At trial, Appellant did object to admission of the HGN test, but her
objection was not based on lack of foundation. Rather, Appellant’s objection
was that the HGN test is never admissible because the test “has been
disproven.” See N.T., 3/30/16, at 12 (“But the nystagmus test has been
disproven, and I don’t believe it’s admissible even for a nonjury trial”).6
Thus, rather than arguing that there was a lack of a foundation that, if
provided, would permit admission of the evidence, she argued, apparently as
a matter of law, that the test is never admissible at all. See id. Because
Appellant did not make an objection at trial based on lack of foundation, her
argument of that issue on appeal is waived. See Phillips, 141 A.3d at 522;
Coffey v. Minwax Co., 764 A.2d 616, 622 (Pa. Super. 2000) (foundation
objection waived where the appellant objected at trial, but did not inform the
court that the objection was based on a lack of foundation).
BAC Evidence
In her second issue, Appellant argues that the trial court erred in
admitting evidence regarding her blood alcohol concentration (BAC) because
this evidence contained inadmissible hearsay and was “foundationally
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6
Appellant did not provide citations to Pennsylvania authority under which
the HGN test was “disproven” or declared inadmissible as a matter of law,
and she has not continued to advance that argument on appeal.
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infirm.” Appellant’s Brief at 24. Although the trial court explicitly stated
that its finding of guilt was “independent of blood alcohol testing results,”
Trial Ct. Op., 7/28/16, at 7, Appellant argues that this alleged error was not
harmless because “[w]hen the trial court heard evidence that Appellant’s
BAC was measured at .084, it certainly weighed that evidence against her.”
Appellant’s Brief at 27. We disagree.
“The trial court will be reversed only if an error in the admission of
evidence contributed to the verdict.” Commonwealth v. McFadden, 156
A.3d 299, 309 (Pa. Super. 2017). In a bench trial, the trial court, acting as
the fact-finder, “is presumed to know the law, ignore prejudicial statements,
and disregard inadmissible evidence.” Id. (citation omitted). “Thus we will
not assume that a verdict rendered by a jurist was influenced by
[inadmissible evidence;] rather it must be demonstrated by the record that
the verdict was indeed the product of that corrupt source.”
Commonwealth v. Harvey, 526 A.2d 330, 333 (Pa. 1987) (emphasis in
original). Here the trial court has explicitly stated that the verdict was not a
product of the blood testing results, and Appellant has provided no evidence
to the contrary. Therefore, even if the BAC evidence was improperly
admitted, we presume that the trial court in this bench trial disregarded it in
reaching its verdict and will not reverse on that basis. See McFadden, 156
A.3d at 309; Harvey, 526 A.2d at 333.
Appellant’s reliance on Commonwealth v. Leighty, 693 A.2d 1324,
1329 (Pa. Super. 1997), in which this Court presumed that the jury weighed
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inadmissible evidence of the defendant’s BAC, is misplaced. Critically, unlike
this case, Leighty involved a jury trial. See Harvey, 526 A.2d at 333
(stating that if verdicts were rendered by lay jury, they could not stand, but
affirming because verdicts were rendered by judge).
Accordingly, having discerned no reversible error, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2017
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