J-A05002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
      Appellee

                   v.

TAMIKA NEAL,

      Appellant                                     No. 612 EDA 2014


          Appeal from the Judgment of Sentence January 23, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0010824-2013


BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                FILED APRIL 06, 2015

      For the following reasons, I am compelled to register my dissent to the

disposition reached by the learned Majority.   Indeed, there is no question

that the admission and exclusion of evidence is within the sound discretion

of the trial court and will not be reversed on appeal absent an abuse of

discretion.   Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super.

2003). The basic requisite for the admissibility of any evidence in a case is

that it be competent and relevant.    Id.   Though relevance has not been

precisely or universally defined, the courts of this Commonwealth have

repeatedly stated that evidence is admissible if, and only if, the evidence

logically or reasonably tends to prove or disprove a material fact in issue,

tends to make such a fact more or less probable, or affords the basis for or
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supports a reasonable inference or presumption regarding the existence of a

material fact. Id.

      Furthermore, a police officer who has perceived a defendant’s

appearance and acts is competent to express an opinion as to the

defendant’s state of intoxication and ability to safely drive a vehicle.

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000).                   In

addition, we have long held that performance of field sobriety tests is

admissible where the performance is reflective of ordinary signs of

intoxication discernable to a lay person.   Commonwealth v. Ragan, 652

A.2d 925, 928 (Pa. Super. 1995). Tests that allow an ordinary observer to

form an opinion as to whether an individual is intoxicated based upon that

individual’s coordination and concentration as demonstrated by his or her

acts and speech are admissible.       Commonwealth v. Drake, 681 A.2d

1357, 1359 (Pa. Super. 1996).

      My review of the certified record reflects that Appellant proceeded to a

non-jury trial held on December 4, 2013. The only testimony presented by

the Commonwealth was that of Police Officer Daniel Kennard of the

Philadelphia   Police   Department.     Officer   Kennard   testified   that   at

approximately 3:00 a.m. on February 26, 2012, he observed Appellant’s

vehicle disregard a red traffic signal. N.T., 12/4/13, at 6, 9. Officer Kennard

explained that he pulled Appellant over for the moving vehicle violation, and

when he came into contact with Appellant he smelled alcohol and noticed



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that she had slurred speech and bloodshot eyes. Id. at 10. Officer Kennard

testified that it was his opinion that Appellant could not operate a motor

vehicle safely based upon her condition. Id. at 12. The officer then stated

that based upon his observations he took Appellant into custody. Id. at 14.

        My review of the certified record further reflects that during cross-

examination Officer Kennard admitted that he has no training in DUIs. Id.

at 17. Later, when defense counsel asked Officer Kennard why the officer

did not give Appellant a field sobriety test the Commonwealth objected to

the question, and the trial court sustained the objection. Id. at 21. During

the subsequent sidebar, the trial court stated, “He’s not qualified to give

that. I can draw the inference, but he’s not qualified for that.” Id.

        Although the trial court stated it could “draw the inference,” in my

view, the reason for the lack of a field sobriety test could reasonably tend to

disprove a material fact in issue, i.e., whether Appellant was incapable of

safely driving her vehicle.      Therefore, because such evidence could be

dispositive of whether Appellant was incapable of safely driving, I believe the

trial   court   should   have   permitted   Appellant’s   counsel   to   question

Officer Kennard regarding the lack of any field sobriety tests. Accordingly, I

am left to conclude that the trial court abused its discretion in excluding the

evidence and respectfully register my dissent.




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