J-A31001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JOSEPH J. COLLIER                       :
                                         :   No. 1022 EDA 2017
                    Appellant

           Appeal from the Judgment of Sentence March 8, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008179-2016


BEFORE:    PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 04, 2018

      This is an appeal from the judgment of sentence entered in the Court of

Common Pleas of Philadelphia County following Appellant Joseph J. Collier’s

conviction at a bench trial on the charge of driving while under the influence

of alcohol (“DUI”), 75 Pa.C.S.A. § 3802(a)(1).     After a careful review, we

affirm.

      The trial court has set forth, in part, the procedural history underlying

this appeal as follows:

            [Appellant] was charged by way of Bill of Information with
      [DUI]-second offense. These charges stemmed from an incident
      that occurred on October 28, 2014, during which Appellant[’s
      vehicle] was stopped and [Appellant was] then arrested by a
      Pennsylvania state trooper after the trooper observed Appellant’s
      vehicle fail to stay within its lane over a distance of a mile and
      [the trooper] observed indicia of intoxication.



____________________________________
* Former Justice specially assigned to the Superior Court.
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               On August 11, 2016, following the grant of Appellant’s
        motion to suppress the results of his blood/alcohol test, he was
        tried [in the] Municipal Court of Philadelphia. At the conclusion of
        the trial, the [Municipal Court] found Appellant guilty of the above
        offense. On September 7, 2016, [the Municipal Court] sentenced
        Appellant to [a] term of incarceration of five days to six months.
        Appellant thereafter sought a trial de novo in the Court of Common
        Pleas of Philadelphia County. The case was assigned. . .for trial,
        and on February 1, 2017, [Appellant proceeded to] a waiver
        trial[.]

Trial Court Opinion, filed 4/25/17, at 1-2.

        At trial, the Commonwealth conceded that the results of Appellant’s

blood alcohol test had been previously suppressed, and the Commonwealth

indicated it was presenting a sole witness, Trooper Michael Laurendeau.1 N.T.,

2/1/17, at 3-4. Trooper Laurendeau testified that, on October 28, 2014, he

was working the midnight shift from 10:00 p.m. to 6:00 a.m. when, as part

of his tour of duty, he traveled to the area where I-95 meets Columbus Avenue

in Philadelphia.     Id. at 5-6.     The following exchange occurred on direct-

examination between the assistant district attorney and Trooper Laurendeau

as to what he observed at this location:

        Q: Trooper, starting at the beginning, can you tell us what first
        brought your attention to [Appellant]?
        A: I noticed a vehicle that was a white Dodge Ram van, traveling
        southbound down 95. I observed the vehicle [ ] make a few
        erratic movements, crossing not only out of its lane of travel into
        other adjacent lanes without using the changing lane signal, but
        also over into the shoulder.
        Q: Trooper, how many times would you say [Appellant] crossed
        the solid white line?

____________________________________________


1   Appellant presented no witnesses at trial.

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     A: I can’t recall exactly how many. I do know that before he
     pulled off of the highway, he crossed the entire gore area.
     Q: The entire what? Say that again.
     A: The gore area. So it’s the white lines that make a point before
     an off-ramp.
     Q: So basically when you’re going to the right to get off or going
     straight to the highway, it’s that sort of “V” area?
     A: Correct.
     Q: So [Appellant] went into that area?
     A: Correct.
     Q: Tell us what happened next.
     A: I followed him off of 95, onto Columbus Boulevard where I
     initiated a traffic stop on the vehicle and made contact with the
     operator of the vehicle, [Appellant], who is sitting next to counsel.
            I let him know that the reason for the stop was for the
     erratic lane movements. He told me that he was eating a granola
     bar, and that’s why he swerved out of his lane several times.
           I let him know that I smelled a heavy scent of alcohol
     emanating from the vehicle, and asked if he would step out of the
     vehicle to perform a series of standardized field sobriety tests, to
     which he agreed.
           Upon speaking to [Appellant] outside of the vehicle, I
     continued to notice a heavy odor of alcoholic beverages coming
     from his person and breath. His pupils were dilated and glassy.
           At that point I ran through HGN, which is horizontal gaze
     nystagmus, which he showed all signs of impairment. I asked him
     if he was able to perform the walk and turn and the one-legged
     stand. He told me that due to an ankle injury, he wouldn’t be able
     to perform either test.
           At that time[,] I believed him to be under the influence of
     alcohol, [and] I placed him under arrest. And I went to the PDU
     where he consented to a blood draw.
     Q: Trooper, I will stop there. Trooper, around what time in the
     morning was this when you made all of these observations?
     A: I can’t recall the exact time. I want to say it was around 2
     o’clock in the morning.
           THE COURT: At 2:00 a.m.?


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              THE WITNESS: Yeah, some time around there.
       Q: What about 1:20 in the morning? Does that sound about right?
       A: Yes.
       Q: Trooper, can you tell us, you said the only test you were able
       to conduct was the field sobriety test—the HGN test. Can you tell
       us exactly what the test is and how you know that it indicated a
       sign of impairment?
              [DEFENSE COUNSEL]: Objection.
              THE COURT: Overruled.
           [DEFENSE COUNSEL]: It’s not admission [sic] under
       Commonwealth vs. Stringer.[2]
       Q: Can you tell us about that?
       A: What the HGN test is, is it’s horizontal gage [sic] nystagmus.
              THE COURT: It’s what?
             THE WITNESS: Horizontal Gaze Nystagmus. [I]t is [ ] an
       involuntary jerking of the eye, which is caused by impairment. He
       showed all signs, which is maximum deviation, which is all the
       way out to the shoulders 108 degrees, prior to 45, which is at the
       shoulder, and also the lack of smooth pursuit.
       Q: So the lack of smooth pursuit and onset before 45 degrees; is
       that right?
       A: Correct.



____________________________________________


2In Commonwealth v. Stringer, 678 A.2d 1200, 1201-02 (Pa.Super. 1996),
this Court held the following:
             HGN test results have been deemed scientific evidence
       based on the scientific principle that alcohol consumption causes
       nystagmus.      Therefore, an adequate foundation must be
       presented prior to admission of HGN test results.
                                       ***
             Admissibility of the evidence depends upon the general
       acceptance of its validity by those scientists active in the field to
       which the evidence belongs [.]
(citations and quotation omitted) (italics in original).



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      Q: So, basically, this is the test where you take the finger and his
      eyes tick as you basically go out and around his peripheral vision;
      is that fair?
      A: Yes.
      Q: You said that [Appellant] said that he couldn’t do the one-
      legged stand or the walk and turn, the second and third of the
      three tests because of an ankle injury. Did you notice visibly
      anything wrong with his ankle that evening?
      A: No.
      Q: That’s all I have.

Id. at 6-10 (footnote added).

      On cross-examination, Trooper Laurendeau clarified that, as he followed

Appellant’s vehicle, he saw the vehicle touch the line “a few times and it was

not only into an adjacent lane, but also into the shoulder.” Id. at 11. The

trooper indicated he observed the vehicle actually go onto the shoulder of the

road. Id.      Further, he indicated that he observed Appellant’s vehicle drive

over the gore area (where the shoulder meets and comes to a point) when

Appellant exited onto Washington Avenue. Id. at 12. Trooper Laurendeau

admitted that Appellant was cooperative, he did not stumble, his clothes were

tidy, and Appellant seemed to understand the conversation. Id. at 14.

      The following relevant exchange occurred between the trooper and the

trial court:

      THE COURT: You said he had a strong smell of alcohol?
      THE WITNESS: Correct.
      THE COURT: How did his eyes appear?
      THE WITNESS: His pupils were dilated and glassy. I also noticed
      that he had glitter on his face. I didn’t know where that came
      from.

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       THE COURT: How long do you think you were behind him on
       Washington, going on the shoulder?
       THE WITNESS: At least a mile.
       THE COURT: A mile?
       THE WITNESS: At least a mile.

Id. at 15.

       At the conclusion of the testimony, the trial court convicted Appellant of

DUI under Subsection 3802(a)(1), and following a sentencing hearing on

March 8, 2017, noting this was Appellant’s second DUI offense, the trial court

sentenced Appellant to five days to ten days in prison, to be followed by six

months’ probation.        This timely appeal followed, and all Pa.R.A.P. 1925

requirements have been met.

       Appellant argues that the trial court erred in admitting Trooper

Laurendeau’s testimony regarding Appellant’s performance on the HGN test

because the Commonwealth did not establish an adequate scientific

foundation.3 In this regard, he suggests that Trooper Laurendeau’s testimony

that Appellant’s involuntary jerking of the eye was caused by impairment “has

no foundation in science to back [it] up.” Appellant’s Brief at 11. Further, he

avers the trial court’s error in this regard does not constitute “harmless error.”

       In reviewing challenges to the trial court’s evidentiary rulings, our

standard of review is as follows:


____________________________________________


3 Appellant adequately preserved his claim by making a proper objection at
trial. See Pa.R.E. 103(a)(1).

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      [T]he admissibility of evidence is a matter addressed to the sound
      discretion of the trial court and. . .an appellate court may only
      reverse upon a showing that the trial court abused its discretion.
      An abuse of discretion is not a mere error in judgment but, rather,
      involves    bias,   ill  will,  partiality,   prejudice,  manifest
      unreasonableness, or misapplication of law.

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (en banc)

(quotations omitted).

      Further, if

      it is determined that the trial court erred in admitting the
      evidence, the inquiry becomes whether the appellate court is
      convinced beyond a reasonable doubt that such error was
      harmless. Harmless error exists where: (1) the error did not
      prejudice the defendant or the prejudice was de minimis; (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.

Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1998)

(citations omitted). “The Commonwealth bears the burden to prove beyond

a reasonable doubt that the error did not contribute to the verdict.”

Commonwealth v. Jacoby, ___ Pa. ___, 170 A.3d 1065, 1085 (2017)

(citation omitted).

      As Appellant suggests on appeal, this Court, noting that case authority

prohibits evidence based on scientific principles without a showing that the

methodology is generally accepted by experts in the field to which the principle

belongs, has held that the “HGN test rests on the belief that the consumption

of certain substances increases a rapid involuntary oscillation of the

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J-A31001-17


eyeballs[,]” and absent a “showing that experts in the field accept[ ] the

premise that the substance in question, alcohol, caused exaggeration of eye

twitches[,]” the evidence is inadmissible as substantive proof of guilt. See

Commonwealth v. Weaver, 76 A.3d 562, 566-67 (Pa.Super. 2013),

affirmed, 629 Pa. 313, 105 A.3d 656 (2014) (per curiam order).

         However, assuming, arguendo, Appellant is correct that the trial court

improperly permitted Trooper Laurendeau to testify concerning the results of

the HGN test, we conclude the Commonwealth has met its burden of proving

the error did not contribute to the verdict, and, thus, constituted harmless

error.

         In the case sub judice, the trial court judge specifically stated in its

opinion that the court “sitting as fact-finder, did not consider the results of the

HGN test in reaching its verdict.” Trial Court Opinion, filed 4/25/17, at 5.

Thus, as the Commonwealth argues, there is no indication that the admittance

of Trooper Laurendeau’s testimony concerning the HGN test prejudiced

Appellant or, alternatively, any prejudice suffered by Appellant was de

minimis. See Robinson, supra. Appellant, nevertheless, speculates that the

trial court did, in fact, consider the HGN test results in rendering its verdict.

However, we decline to delve further into this issue based solely on Appellant’s

speculation and conjecture.

         Moreover, we conclude that any error in the admittance of the HGN test

results was harmless because the uncontradicted evidence of guilt was so


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overwhelming that any “prejudicial effect of the [possible] error was so

insignificant by comparison that [it] could not have contributed to the verdict.”

Robinson, ___ Pa. at ___, 721 A.2d at 350.

      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.

75 Pa.C.S.A. § 3802(a)(1).

      In order to convict a defendant of DUI—general impairment, “the

Commonwealth [must] prove the following elements: the accused was driving,

operating, or in actual physical control of the movement of a vehicle during

the time when he or she was rendered incapable of safely doing so due to the

consumption of alcohol.” Commonwealth v. Segida, 604 Pa. 103, 985 A.2d

871, 879 (2009). With regard to the second element, our Supreme Court has

stated:

      The types of evidence that the Commonwealth may proffer in a
      subsection 3802(a)(1) prosecution include but are not limited to,
      the following: the offender’s actions and behavior, including
      manner of driving and ability to pass field sobriety tests;
      demeanor, including toward the investigating officer; physical
      appearance, particularly bloodshot eyes and other physical signs
      of intoxication; odor of alcohol, and slurred speech. Blood alcohol
      level may be added to this list, although it is not necessary and
      the two hour time limit for measuring blood alcohol level does not
      apply. . . .The weight to be assigned these various types of
      evidence presents a question for the fact-finder, who may rely on
      his or her experience, common sense, and/or expert testimony.
      Regardless of the type of evidence that the Commonwealth
      proffers to support its case, the focus of subsection 3802(a)(1)

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      remains on the inability of the individual to drive safely due to
      consumption of alcohol-not on a particular blood alcohol level.

Id.

      Here, the record shows that Appellant engaged in unsafe driving when,

over the course of a mile, he “cross[ed] not only out of [his] lane of travel into

other adjacent lanes without using the changing lane signal, but also over into

the shoulder[,]” several times. N.T., 2/1/17, at 6-7. Further, in exiting I-95,

he crossed over the white lines that form a “V” between the highway and exit

ramp. Id. Evidence of his intoxication at this time was demonstrated by the

“heavy” smell of alcohol emanating from his vehicle, body, and breath, as well

as his dilated, glassy pupils.   This evidence, as the trial court noted based on

Trooper Laurendeau’s testimony, constituted “clear indicators of alcohol

impairment.” Trial Court Opinion, filed 4/25/17, at 5. See Segida, supra.

Further, although he had no visible ankle injury, Appellant reported to the

trooper that he could not perform certain field sobriety tests, including the

one-legged stand and the walk and turn, due to an ankle injury.

      Based on the aforementioned, even absent the evidence concerning the

HGN test results, the Commonwealth’s evidence overwhelmingly showed that

Appellant was under the influence of alcohol to a degree that rendered him

incapable of safe driving at the time Trooper Laurendeau stopped his vehicle.




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See id. Thus, given this overwhelming evidence, any error in the trial court’s

admittance of the HGN test results was harmless.4

       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2018




____________________________________________


4 We note that Appellant argues on appeal that the evidence was insufficient
to sustain his conviction for DUI under Section 3802(a)(1). However, in
consideration of the overwhelming evidence of guilt, even absent the HGN test
results, we find no merit to Appellant’s sufficiency of the evidence claim. See
Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010) (setting
forth our standard of review in sufficiency of the evidence claims).

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