J   -E03002-16
                                   2017 PA Super 160


COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                              Appellee

                         v.

ARTEE LINARD MAURICE GAUSE

                              Appellant                   No. 151 MDA 2015


           Appeal from the Judgment of Sentence December 2, 2014
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0008850-2013

BEFORE:        BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J.,
               STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.

OPINION BY LAZARUS, J.:                                     FILED MAY 24, 2017

        Artee Linard Maurice Gause appeals from the judgment of sentence,

entered in the Court of Common Pleas of York County, following his

convictions of driving under the influence of alcohol or controlled substance

("DUI")    -   general impairment,' DUI     -   controlled substance,2 and driving


'   75 Pa.C.S.A.   §   3802(a)(1). Section 3802(a)(1) provides:

        (a) General impairment. --
                (1) An individual may not drive, operate or be in actual
                physical control of the movement of a vehicle after
                imbibing a sufficient amount of alcohol such that the
                individual is rendered incapable of safely driving, operating
                or being in actual physical control of the movement of the
                vehicle.
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without stop lights (brake lights)     in   violation of period for requiring lighted

lamps.3     After careful review, we vacate the judgment of sentence and

discharge Gause.

        The trial court summarized the facts of this case as follows.

        [O]n September 25, 2013, at around 1:20 in the morning,
        Officer [Erika] Eiker encountered a vehicle lacking illuminated
        taillights. [4] During the ensuing stop, the officer asked [Gause]
        for his license and registration and questioned where [Gause]
        was coming from. [Gause] provided the requested items without
        any fumbling and informed the officer that he was traveling from
        a friend's home[.]      Officer Eiker smelled alcohol and [Gause]
        stated that he had consumed one 12 -ounce can of beer.
        [Gause] then completed field sobriety tests with varying levels of
        success.[5] On cross-examination, defense counsel elicited from
(Footnote Continued)

2   75 Pa.C.S.A.   §   3802(d)(2). Section 3802(d)(2) 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.
3   75 Pa.C.S.A.   §   4302(a)(1).

4At the hearing on Gause's omnibus pretrial motion, Officer Eiker stated that
Gause's brake lights were functioning, but not his taillights. N.T. Omnibus
Pretrial Hearing, 7/29/14, at 15.

5  Officer Eiker stated that she directed Gause to perform certain standard
field sobriety tests. The tests included the Horizontal Gaze Nystagmus
(HGN), walk and turn, one -leg stand, and the Romberg balance tests. Gause
showed no impairment on the HGN test. On the walk -and -turn, he showed
some impairment. On the one -leg stand, Gause did not show sufficient clues
for DUI impairment. On the Romberg balance test, while directed to close
(Footnote Continued Next Page)


                                            -2
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        Officer Eiker that during the encounter she neither smelled nor
        saw marijuana. Moreover, the officer testified that [Gause's]
        speech was not slurred and that, outside of the field sobriety
        tests, [Gause's] balance and coordination were fine. Officer Eiker
        went on to testify that she gives the Romberg Test when she
        suspects marijuana usage because she associates eyelid
        tremors, as in this case, with marijuana usage.          [T]hough.   .   .


        [Gause] submitted himself to a drug recognition evaluation, he
        refused chemical testing.

Trial Court Opinion, 4/16/15 at 5-6 (citations to record omitted).

        Following trial,   a   jury convicted Gause of the aforementioned charges.
The trial court merged the DUI convictions for sentencing purposes and

sentenced Gause to         a   term of      5   years of intermediate punishment, including

45 days to be served in county prison and 90 days of house arrest, and

imposed      a   $1,500 fine, plus costs of prosecution.          On the summary offense

of driving without brake lights, the court imposed                a   $25 fine, plus the costs

of prosecution.        Gause filed post -sentence motions, which the trial court

denied. This timely appeal followed.

        Gause raises the following issues for our review:

        1.    Whether Officer Eiker's opinion testimony that body
        tremors and eyelid tremors are indicative of marijuana
        impairment should have been excluded?


(Footnote Continued)

his eyes and lean slightly backward, Gause misjudged the passing of 12
seconds for 30 seconds, but there was no testimony that this indicated
impairment. See N.T. Omnibus Pretrial Hearing, 7/29/14, at 10-14; N.T.
Trial, 10/9/14, at 72. Additionally, at trial, Officer Eiker stated that she did
ask Gause if he had any physical limitations and he told her that "he had
been shot in one of his legs    ten years ago[.]" Id. at 68.
                                    .   .   .




                                                   -3
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        2.    Whether Officer Eiker should have been denied the ability
        to testify as to her opinion that body tremors and eyelid tremors
        are indicative of marijuana impairment when the trial court ruled
        prior to the beginning of trial that the Commonwealth's
        witnesses could not render an opinion?
        3.    Whether Officer Eiker's and Officer George's testimony
        regarding eyelid and body tremors should have been excluded
        even if they did not render an opinion because the testimony
        was irrelevant without their opinion?
        4.     Whether there was insufficient evidence to support the
        [j]ury's finding of guilt on count 2, DUI-[c]ontrolled [s]ubstance,
        because the Commonwealth failed to present sufficient evidence
        that Mr. Gause was incapable of safely operating an automobile
        because of drug consumption?
        5.     Whether there was insufficient evidence to support the
        [j]ury's finding of guilt on count 1, DUI, [g]eneral [i]mpairment,
        when Officer George testified that he had excluded alcohol as a
        factor of impairment?
        6.    Whether the [j]ury's verdict as to count 2 is against the
        weight of the evidence when there was no testimony as to the
        drug(s) that Mr. Gause was supposedly impaired by?
        7.    Whether the verdict as to count 1 is against the weight of
        the evidence when Officer George had specifically excluded
        alcohol impairment?

Appellant's Brief at 6-7.

        Gause first argues that the trial court committed reversible error when

it permitted Officer Eiker to offer her opinion that eyelid and body tremors

are indicative of marijuana impairment.           We agree.      Officer Eiker's lay

opinion was incompetent and the trial court should have excluded it as

inadmissible under Pennsylvania Rule of Evidence 701.

         Prior to the start of trial, the court ruled that Officer Eiker could testify

to her observations of body and eyelid tremors "but not to any conclusions


                                         -4
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as to what those   tremors signified." N.T., 10/9/14, at 13. During trial, the

court reversed its earlier ruling and, over defense counsel's objection,

permitted Officer Eiker to attribute Gause's body and eyelid tremors to

marijuana impairment. Officer Eiker testified that, in her opinion, Gause was

under the influence of      a   controlled substance, and that she formed this

opinion, in part, on body and eyelid tremors:

     Q: [B]ased on your training, your experience, your education,
     your observations of [Gause], performance on those tests, did
     you form an opinion at the time of your contact with [Gause]
     whether or not you believed he was impaired?
     A: Yes. At the time of my contact with him, just, you know, the
     totality of everything, you know, his behavior, the body tremors,
     the eyelid tremors, the clues on the walk and turn, you know, his
     poor perception of time with the Romberg balance test, and also
      the very strong presence of eyelid tremors during that test.

Id. at 75-76 (emphasis added).           On re -direct, Officer Eiker testified   that "if

they have tremors   in   the eyelids, it's   a   general indicator that the individual,

you know, has ingested marijuana          [.]" Id.   at 103.

      Gause submitted to        a   drug evaluation test, performed by Officer Scott

George.   Officer George also administered the Romberg balance test; this

time, Gause estimated the passage of 30 seconds at the 19 -second point.

Id. at 116-117. During the           Romberg balance test, Gause exhibited eyelid

and body tremors.    Office George testified: "When his eyes were closed, he

had distinct and sustained eyelid        tremors[.]" Id.       He also administered the

walk and turn test and the one -leg stand test.            Gause passed the one -leg

stand test, but stepped off the imaginary line in the walk and turn test.

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Officer George acknowledged that Gause's leg injury could affect his ability

to perform the walk and turn test and the one -leg stand test, and thus could

affect the reliability of those tests.     Id. at 131-32.          Officer George stated

that he believed Gause was "impaired by both          a   drug and the alcohol that he

had in his    system[,]" id. at 120, but acknowledged on cross-examination
that Gause was not over the legal limit of          .081'6 and also    acknowledged his

preliminary hearing testimony that "if        a   subject   is   impaired by alcohol, we

don't do drug evaluations at that point[.]" Id. at 124-25.

        The trial court recognized in its Pa.R.A.P. 1925(b) opinion that it was

error to admit Officer Eiker's opinion testimony as to whether body tremors

and eyelid tremors are indicative of marijuana usage, and that it was error

to alter the pretrial ruling that precluded that opinion during trial. The court

stated:

        Turning to Officer Eiker's opinion testimony that [Gause] was
        marijuana impaired, we immediately observe that the Superior
        Court has very clearly stated that there is "a need for expert
        testimony in the area of marijuana." Commonwealth v.
        DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010). However,
        in [DiPanfilo], the Superior Court also said that expert
        testimony is not required in every marijuana case. Id. This
        dichotomy was clarified in a footnote, which states the following:
           [I]f   apolice officer stopped a driver who was driving
           erratically, and the driver then rolled down his window and
           greeted the officer through a cloud of marijuana smoke,
           showing the typical signs of heavy marijuana use, it would
           be difficult to imagine that expert testimony would be


6
    No chemical   testing was performed.


                                         -6
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           necessary to establish the link between erratic driving and
           the driver's marijuana use.
        Id. at   n. 5.


Trial Court Opinion, 4/16/15, at 5.             The trial court went on to observe,

correctly, that an expert    is   required to render an opinion as to marijuana

impairment unless the circumstances are so telling of recent marijuana use

as to form a clear connection between marijuana use and impairment.                  Id.
The court also observed, again correctly, that the facts presented in the

instant case were within the DiPanfilo holding that an expert             is   necessary

to present conclusions to         a   jury about the effects of marijuana          on a

defendant. The court stated:


        By the officer's own testimony, the facts of our case do not align
        with, nor closely resemble, the hypothetical sketched out by the
        DiPanfilo [C]ourt in [its] footnote. In the officer's candid and
        credible testimony, we did not hear evidence of erratic driving or
        hear about billowing marijuana smoke. With the exception of his
        eyelid tremors and some failure at field sobriety tests, the officer
        did not testify about anything else that would indicate marijuana
        usage so recent as to obviate the necessity of an expert to
        explain whether [Gause] would have been under the influence of
        marijuana.

Trial Court Opinion, supra at 7.

        Our standard of review is well settled:        "The admissibility of evidence

is a   matter for the discretion of the trial court and      a   ruling thereon will be

reversed on appeal only upon          a   showing that the trial court committed an

abuse of discretion."     Commonwealth v. Poplawski, 130 A.3d 697, 716
(Pa. 2015) (citation omitted).            Pursuant to Pennsylvania Rule of Evidence

                                             - 7 -
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701, Opinion Testimony by Lay Witness, lay witness 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 (emphasis added).               Our cases further hold that lay witnesses

may        testify to      someone's      readily     observable     physical     condition        or

appearance that does not require medical training.                      Commonwealth v.
Counterman, 719 A.2d 284                 (Pa. 1998).       Cf.   Commonwealth v. Jones,
121 A.3d 524 (Pa. Super. 2015) (police officer's smelling burnt marijuana

emanating from defendant's vehicle during traffic stop provided reasonable

grounds to request chemical testing).

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

Pennsylvania Supreme Court declined "to read into subsection 3802(d)(2)                            a

mandatory            requirement   for    expert testimony         to   establish          that   the

defendant's inability to drive safely was caused by ingestion of                  a   drug, even

if it is   a     prescription drug, or drug combination."         Id. at 1238.        In   Griffith,
the criminal complaint was based on an eyewitness's account Griffith driving

in a       reckless and dangerous manner,              a   police officer's observations of

Griffith, including her failure to pass three field sobriety tests, and blood

tests indicating the presence of Diazepam (valium) and nordiazepam. Id. at

1233.          Additionally, Griffith acknowledged that she had taken                 a     different

                                              - 8 -
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prescription medication, specifically, Soma 350, on the morning of the

incident, and police found prescription pill bottles for Soma in the open

center console of Griffith's vehicle. Id.

        The    Griffith Court stated: "Depending                 on the specific facts and

circumstances, expert testimony may be helpful, or perhaps even necessary,

to prove causation under subsection                  3802(d)(2)[.]" Id. (emphasis added).
Accordingly, the question of whether expert testimony is necessary in such

cases "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 1239. In     essence, the Court

determined that expert testimony is not necessary to establish impairment

under subsection 3802(d)(2) where there exists other independent evidence

of impairment.       In our opinion, the facts and circumstances of the case

before us clearly fall within the "expert testimony necessary" classification.

        Notably, the Commonwealth provided no evidence that Gause had

recently ingested marijuana.              On the        contrary, Officer Eiker testified that

Gause had stopped at       a   lighted intersection, with his headlights and turn

signal properly activated, and that she stopped him after he had turned and

she saw that his taillights were not illuminated.                 N.T. Jury Trial,   10/9/14, at
84-85.7       Officer Eiker testified that when she activated her lights, Gause



  We have viewed Officer Eicker's dashboard camera video, which confirms
these observations.


                                                   -9
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properly signaled and pulled over immediately to the curb. Gause provided

his license, registration and proof of insurance without fumbling.      Id. at 85-
87.    There was no evidence that an odor of marijuana emanated from his

person or from his vehicle at the time he was stopped.        Id. at   88.    There

was no testimony that Gause's eyes were bloodshot.         Nor did Officer Eiker

testify that she discovered any physical evidence of recent marijuana usage.
Further, there was no admission from Gause that he had recently smoked

marijuana, nor was there eyewitness testimony to establish recent ingestion

of marijuana.

        Rather, to support its case, the Commonwealth presented Officer

Eiker's testimony that Gause exhibited "eye tremors," in particular when his

eyes were closed during the Romberg balance test.         Although Officer Eiker

could testify as to her observations of an apparent physical condition,            a

qualified expert   is   required to provide the connection between the symptoms

observed and the drug allegedly influencing the defendant's driving.            See

DiPanfilo, supra; see also Commonwealth v. Allison, 703 A.2d                 16 (Pa.

1997) (lay witness could not testify regarding "split and opened" condition of

complainant's hymen in absence of qualified expert testimony to explain

significance of these personal observations);      Commonwealth v. Yanoff,
690 A.2d 260 (Pa. Super. 1997) (murder defendant attempted to elicit

objectionable opinion by asking police officer whether victim had appeared

to be under influence of drugs; officer had not been qualified to render such

opinion);   Commonwealth v. Yedinak, 676 A2d 1217, 1222                (Pa. Super.

                                        - 10 -
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1996) (Beck, J., dissenting) ("[A]fter            a   proper foundation has been laid,       a

lay witness may testify as to his or her observations. However,                  a   qualified

expert       is        required to provide the connection between the symptoms

observed and the drug allegedly influencing the defendant's driving.").

        It    is       clear to this Court that Officer Eiker's observation of "eyelid

tremors"          is   not the typical and obvious indicia of marijuana use, such as the

distinct odor of burnt marijuana emanating from the person or the vehicle.

Further, it is eminently clear that attributing body or eyelid tremors to

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

702.     Unlike staggering, stumbling, glassy or bloodshot eyes, and slurred

speech, the "ordinary signs of intoxication discernable by               a   layperson," eye

tremors are not an ordinary sign of ingestion of               a   controlled substance, in

particular, marijuana.              As the trial court acknowledged, Officer Eiker's

testimony as to her observations did not obviate the necessity of an

expert to explain whether "eye tremors," or "body tremors," would indicate
that someone was under the influence of marijuana and that this impaired
his ability to safely drive, in violation of section 3802(d)(2).8                    See Di



8  Officer Eiker acknowledged on cross-examination that there are other
causes of eye tremors. N.T. Trial, supra at 105.         According to the Mayo
Clinic, eye tremors, or eye twitches, are also an indication of stress, bright
light, caffeine excess, fatigue, irritation of the eye surface or inner eyelids,
physical exertion, smoking, wind and alcohol use. Additionally, eye tremors
can also be caused by various medical conditions, including dry eyes,
glaucoma, blepharitis, corneal abrasion, and Tourette's syndrome. See
(Footnote Continued Next Page)
J   -E03002-16



Panfilo, supra; cf. Commonwealth v. Jones,           121 A.3d 524 (Pa. Super.

2015) (as matter of first impression, police officer's smelling strong, distinct

odor of burnt marijuana emanating from vehicle during traffic stop provided

reasonable grounds, by itself, to request chemical testing); Commonwealth

v.    Etchison, 916 A.2d 1169       (Pa. Super.   2007).    Because it required

specialized knowledge, Officer Eiker's testimony was inadmissible as "lay

opinion." See Pa.R.E. 701.9

        The trial court, however, determined that this was harmless error.

The trial court stated that it did "not believe that defense counsel, in this

case, relied to his detriment on our pretrial ruling.      Rather than   a   finding

that there was prejudice, at most, we believe there may have been harmless
error." Trial Court Opinion, 4/16/15, at 10-11.     We disagree.

        Officer Eiker's testimony regarding body and eye tremors was central

to the Commonwealth's case pertaining to marijuana impairment, as it was

the only factor she attributed to marijuana impairment.            Without expert

testimony to explain   a   connection, if any, the jury was permitted to engage

in    speculation that the observation of eye tremors indicates marijuana


(Footnote Continued)

http://www.rnayoclinic.org/synnptonns/eye-twitching/basics/causes/synn-
20050838 (last visited 3/20/2017).
9
  We do not address the issue of whether Officer Eiker could have testified
as an expert in this case. Officer Eiker was not "qualified" as an expert
pursuant to the Pennsylvania Rules of Evidence, which is required prior to
admissibility. See Pa.R.E. 702. That issue, therefore, is not before us.


                                       - 12 -
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impairment, or, at the least, ingestion.                     We cannot characterize this as

harmless.       See Commonwealth v. Williams, 573 A.2d 536, 538-39 (Pa.

1990) ("Error      is   considered to be harmless where: (1) the error did not

prejudice the defendant or the prejudice was de minimis; or (2) the

erroneously admitted evidence was merely cumulative of other, untainted

evidence which was substantially similar to the erroneously admitted

evidence; or (3) the properly admitted and uncontradicted evidence of guilt

was so overwhelming and the                   prejudicial effect of the error was so

insignificant by comparison that the error could not have contributed to the

verdict."), citing Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978).
See also Commonwealth v. Brennan, 696 A.2d 1201, 1203 (Pa. Super.

1997) ("Harmless error exists where the appellate court                              is   convinced

beyond    a   reasonable doubt that the erroneously admitted evidence could not

have contributed to the verdict.          If there         is a   reasonable probability that an

error may have contributed to the verdict, the error                          is   not harmless.")

(internal citations omitted).

        We conclude, therefore, that the trial court erred in admitting Officer

Eiker's lay opinion testimony and this error was not harmless.                        Without this

testimony, the evidence, even viewed in the light most favorable to the

Commonwealth as verdict winner, did not support                           a   conviction of DUI -

controlled substance. In fact, there was               a   total lack of proof that Gause was

under the influence of      a   drug to   a   degree that his ability to safely drive was

impaired.      Thus, the conviction under subsection 3802(d)(2) cannot stand.

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

(we view evidence admitted at trial in light most favorable to verdict winner

to determine whether fact -finder could find every element of crime beyond

reasonable doubt).

        Additionally, we agree with Gause's argument that the evidence does

not support   a   conviction under subsection 3802(a)(1).

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there 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.

LeBenne,     21 A.3d at 1289.

        Section 3802(a)(1) of the Vehicle Code provides:

        An individual may not drive, operate or be in actual physical
        control of the movement of a vehicle after imbibing a sufficient
        amount of alcohol such that the individual is rendered incapable
        of safely driving, operating or being in actual physical control of
        the movement of the vehicle.


                                       - 14 -
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75 Pa.C.S.A.     §   3802(a)(1) (emphasis added). In order to prove          a   violation

of this section, the Commonwealth must show:              (1) that the defendant was

the operator of      a   motor vehicle and (2) that while operating the vehicle, the

defendant was under the influence of alcohol to such            a   degree as to render

him incapable of safe driving.         Commonwealth v. Palmer, 751 A.2d 223,
228     (Pa.   Super.       2000).     To    establish   the   second    element,     the

Commonwealth must show that alcohol has

           substantially impaired the normal mental and physical
           faculties required to safely operate the vehicle.
           Substantial impairment, in this context, means a
           diminution or enfeeblement in the ability to exercise
           judgment, to deliberate or to react prudently to changing
           circumstances and conditions. Evidence that the driver
           was not in control of himself, such as failing to pass a field
           sobriety test, may establish that the driver was under the
           influence of alcohol to a degree which rendered him
           incapable of safe driving, notwithstanding the absence of
           evidence of erratic or unsafe driving.

Id. (citations   and footnote omitted).

        As noted above, Officer Eiker stated          that she did detect the odor of
alcohol when she questioned Gause, and that he readily acknowledged he

had consumed a 12 -ounce Coors Light beer about a half hour earlier.                  She

also acknowledged that Gause was cooperative and did not exhibit the

typical indicators of alcohol impairment; there was no evidence of erratic

driving, slurred speech, difficulty in handing over required documents, and

no    inability to stand without support.            Officer Eiker stated that Gause

answered her questions appropriately and correctly. Additionally, as far as


                                            - 15 -
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the "vehicle in motion" and "personal contact" phases, two of the three

phases for determining general impairment, Officer Eiker testified that she

did not notice any signs of impairment.          N.T. Trial,      supra at 89-90. The
final phase, the field sobriety tests, yielded inconsistent results; however,

both Officer Eiker and Officer George recognized that the reliability of those

tests could be affected by leg injuries, such as Gause's.

        Officer George testified that Gause was not "alcohol impaired," and he

acknowledged that he would not perform            a    drug evaluation if, in fact,     a

subject    is   alcohol -impaired.   Yet, Officer George testified that at the

conclusion of his evaluation, he believed Gause was "impaired by both a

drug and the alcohol that he had in his system." N.T. Jury Trial, 10/9/14, at

120 (emphasis added).

        We have evaluated the entire record, and, viewing the evidence in the

light most favorable to the Commonwealth, we conclude the Commonwealth

did not meet its burden of proving beyond          a   reasonable doubt that Gause

was under the influence of alcohol to such             a    degree as to render him

incapable of safe driving.       Palmer, supra.            The evidence pertaining to

marijuana should have been excluded, and after Office George stated that

Gause was not "alcohol impaired," his conclusion that Gause was impaired

by "both    a   drug and alcohol" is not supported by the record and must fail.

Therefore, the evidence was insufficient to support           a   finding of DUI -general

impairment under the statute. Cf. Commonwealth v. Segida, 985 A.2d at

880 (circumstantial evidence sufficient to establish guilt for DUI -general

                                        - 16 -
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impairment where defendant admitted to police officer at scene of one -

vehicle accident that he had been drinking at local club and was driving

when he lost control of his vehicle, officer smelled strong odor of alcohol

coming from defendant's person and his breath, defendant performed very

badly on field sobriety tests, blood alcohol test at hospital revealed very high

blood alcohol content of 0.326 percent, and officer opined that "due to traffic

on the road" it was   "doubtful" that accident had occurred two or three hours
or even ten minutes prior to his arrival on scene); Commonwealth v.

Teems, 74 A.3d 142, 146 (Pa. Super. 2013) (evidence of guilt sufficient

under section 3802(a)(1) where officer responding to call reporting disabled

vehicle observed defendant sitting in driver's seat of vehicle, in lane of

traffic, depressing brakes, car had lost its tires, defendant could not recall if

he struck anything or when or where accident might have occurred, officer

noticed strong odor of alcohol from defendant, defendant had red, glassy

eyes and slurred speech, defendant failed to blow properly into portable

alcohol breath test machine, and blood test at hospital revealed that he had

BAC of    .143); Commonwealth Feathers, 660 A.2d 90 (Pa. Super. 1995)

(defendant's glassy eyes, slurred speech, odor of alcohol, inability to stand

without support and failure of field sobriety tests was sufficient to support
DUI conviction);    Commonwealth v. Kowalek, 647 A.2d 948             (Pa. Super.

1994) (defendant's bloodshot eyes, slurred speech, strong odor of alcohol,

difficulty   in producing   driver's license and registration and failure of field

sobriety tests deemed sufficient to support DUI conviction).        We conclude,

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therefore, that the evidence was also insufficient to convict Gause under

subsection (a)(1).

        Based    on our disposition   of Gause's first five claims, we find it

unnecessary to address Gause's final two issues challenging the weight of

the evidence.

        Judgment of sentence vacated. Appellant    is   discharged.

Judgment Entered.




J    seph D. Seletyn, Es   .


Prothonotary


Date: 5/24/2017




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