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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



____________________________________________


*
    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-
____________________________________________


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)


                                           -2-
J-S03024-17



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.



                                            -3-
J-S03024-17



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


____________________________________________


4
    Dave Rich did not testify at trial.



                                           -4-
J-S03024-17



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?




                                      -5-
J-S03024-17


       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
____________________________________________


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).



                                           -6-
J-S03024-17



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.




                                     -7-
J-S03024-17



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


____________________________________________


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.



                                           -8-
J-S03024-17



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

                                      -9-
J-S03024-17


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




                                    - 10 -
