J-A19019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AMBER WILKINSON                            :
                                               :
                       Appellant               :   No. 1885 MDA 2017

       Appeal from the Judgment of Sentence Entered November 2, 2017
      In the Court of Common Pleas of Luzerne County Criminal Division at
                        No(s): CP-40-CR-0004406-2016


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 19, 2018

        Appellant Amber Wilkinson appeals from the judgment of sentence

imposed following her conviction of driving under the influence 1 (DUI)—

general impairment at a non-jury trial. Appellant raises sufficiency and weight

of the evidence claims. Appellant also asserts that the trial court improperly

permitted a police officer to testify regarding the administration of field

sobriety tests when a different officer had administered the tests. We affirm.

        On August 22, 2016, at approximately 4:00 p.m., Appellant was

operating a vehicle near the intersection of Kidder and Mundy Streets in

Wilkes-Barre. Appellant drove through an intersection and hit the front end

of another vehicle, ripping off its front bumper. N.T., 9/27/17, at 6.




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1   75 Pa.C.S. § 3802(a)(1).
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        Wilkes-Barre    City    Police   Officer   Sara   Chmielewski   immediately

responded to a report of the accident. Id. at 5. Officer Chmielewski spoke

with Appellant and noticed that Appellant’s speech was slow and slurred and

that Appellant’s eyes were “glossy” and red. Id. at 7-8. Appellant admitted

that she was driving and had taken muscle relaxers “in the last day.” Id. at

7, 9.

        Officer Chmielewski requested that Acting Sergeant Corey Dumont

come to the location to conduct field sobriety tests.2            Once he arrived,

Sergeant Dumont asked Wilkinson to perform tests while Officer Chmielewski

observed from several feet away. Id. at 8, 15. Appellant performed poorly

on the field sobriety tests as demonstrated by her lack of balance and inability

to count her steps correctly. Id. at 9. Appellant was unable to blow into a

portable breath test device properly despite being instructed on how to do so.

Id. at 10.     Appellant told the police to “just take [her] in already.”       Id.

Appellant was transported to the hospital, where she refused to have her blood

drawn, and from there she was transported to the police station. Id. at 11,

22-23.

        Appellant was charged with DUI—general impairment, and a non-jury

trial was held on September 27, 2017. Officer Chmielewski testified for the

Commonwealth, and, in relevant part, described Appellant’s poor performance

____________________________________________


2Officer Chmielewski was not certified to perform field sobriety tests, although
certification was not required to administer the tests. See N.T. at 14.



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during the field sobriety tests. Appellant’s counsel did not object.3 See id. at

8-9. Sergeant Dumont did not testify at trial.

       Appellant testified that she did not believe the accident was her fault

because the light was green when she went through the intersection. Id. at

18. Appellant stated that she had taken one prescribed muscle relaxant the

evening before, but suggested that it would not affect her ability to drive

because she takes it and uses heavy machinery at work while on the

medication.     Id. at 20, 22.       Appellant also stated that she had difficulty

completing the field sobriety tests because her sciatica was “acting up” and

“the sun was glaring in [her] eyes.”           Id. at 21.   Appellant’s mother also

testified, stating that she knows what Appellant looks like while intoxicated

and that Appellant was not intoxicated when she picked her up from the police

station around 8:00 p.m. the day of the incident. Id. at 26-27.

       The trial court found Appellant guilty of DUI—general impairment. On

November 2, 2017, the court sentenced Appellant to forty-eight hours to six

months of incarceration.4


____________________________________________


3 Appellant’s counsel did object when Officer Chmielewski testified that
Appellant took the breath test twice. The trial court overruled the objection
because the Commonwealth was not seeking to introduce any results through
the testimony, but merely the fact that Appellant was unable to complete the
test. See N.T. at 10.

4 Appellant was not subject to an enhanced sentence for her refusal of a blood
test.



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       Appellant filed a timely notice of appeal.5 Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant raises the six issues, which we have reordered as follows:

       1. Whether the [trial c]ourt erred in not ruling that the evidence
          was insufficient as a matter of law to establish [Appellant’s]
          guilt beyond a reasonable doubt on the charges[.]

       2. Whether the [trial c]ourt erred in not finding that [Appellant]
          was innocent as a matter of law as the Commonwealth did not
          meet its burden of proof that [Appellant] operated her motor
          vehicle while impaired[.]

       3. Whether the [trial c]ourt erred in finding [Appellant] guilty of
          the criminal charges because the [c]ourt’s verdict was based
          on insufficient evidence and/or was against the weight of the
          evidence[.]

       4. Whether the evidence submitted at trial by the Commonwealth
          was insufficient as a matter of law to establish [Appellant’s]
          guilt beyond a reasonable doubt on the charges[.]

       5. Whether the [t]rial [c]ourt improperly admitted into evidence
          and then relied in error upon responding Officer Chmielewski’s
          testimony as to the methods and manner of the administration
          of the [f]ield [s]obriety [t]ests by certified Acting Sergeant
          Corey Dumont, and in permitting Officer Chmielewski to testify
          as to the conclusions of the officer who administered them, but
          who was not present in [c]ourt and subject to the cross-
          examination of [Appellant.]

       6. Whether the [t]rial [c]ourt improperly permitted Officer
          Chmielewski to express an opinion as to the methods and
          manner of the administration of the [f]ield [s]obriety [t]ests by
          Acting Sergeant Corey Dumont, who did not testify at [t]rial[.]
____________________________________________


5The thirtieth day after sentencing fell on December 2, 2017, a Saturday.
See Pa.R.A.P. 903(a). Therefore, Appellant’s notice of appeal, filed Monday,
December 4, 2017, was timely. See 1 Pa.C.S. § 1908.




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Appellant’s Brief at 4-5.

       Appellant’s first four issues challenge the sufficiency and weight of the

evidence.6     Appellant asserts that Officer Chmielewski did not observe

Appellant driving. Id. at 24. Appellant also argues that Officer Chmielewski

did not establish she was intoxicated.           See id. at 24-26.    Specifically,

Appellant contends that the officer did not explain how she knew Appellant’s

speech was slurred when the officer had never heard her speak before. Id.

at 24.    Appellant notes that that she had difficulties performing the field

sobriety tests because of a back injury and the sun being in her eyes. Id. at

24-25. Further, Appellant argues that the trial court “ignored the testimony

of [] Appellant and her [m]other and convicted [her]” of DUI—general

impairment. Id. at 26. Appellant also asserts that “at the [t]rial below, no

testimony had been proffered to establish that alcohol was the cause of

[Appellant’s] alleged impaired ability to drive safely.” Id. at 27.

       It is well-settled that

       [t]he 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
____________________________________________


6 To the extent Appellant raises a challenge to the weight of the evidence, this
issue is waived because Appellant raised it for the first time in her Rule
1925(b) statement. See Pa.R.Crim.P. 607(A) (providing that a claim that a
verdict is against the weight of the evidence must be raised in a motion for a
new trial); Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).


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      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 [trier]
      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.

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation

omitted), appeal denied, 165 A.3d 895 (Pa. 2017).

      Section 3802(a)(1) defines DUI—general impairment as follows: “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. §

3802(a)(1) (emphasis added).        Accordingly, the Commonwealth has the

burden of proving “(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 or her incapable of safe

driving.” Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003).

      Regarding the type, quantum, and quality of evidence necessary to

prove a violation of DUI—general impairment, we note the following:

      Section 3802(a)(1), like its predecessor [DUI statute], is a general
      provision and provides no specific restraint upon the
      Commonwealth in the manner in which it may prove that an


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       accused operated a vehicle under the influence of alcohol to a
       degree which rendered him incapable of safe driving . . . . 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. . . . 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) remains on the inability of the
       individual to drive safely due to consumption of alcohol—not on a
       particular blood alcohol level.

Commonwealth v. Eichler, 133 A.3d 775, 790 (Pa. Super. 2016), appeal

denied, 161 A.3d 791 (Pa. 2016) (citation omitted). We note that “classic

signs of intoxication[ include] red, glassy eyes and slurred, slow speech.”

Commonwealth v. Teems, 74 A.3d 142, 147 (Pa. Super. 2013).

       At the outset, we note that there was ample evidence that Appellant

was driving, especially considering that Appellant admitted she was operating

the vehicle involved in the accident. N.T. at 7. Thus, the first element of the

offense of DUI—general impairment was satisfied. See Smith, 831 A.2d at

638.

       As to the second element of DUI—general impairment, requiring that

Appellant was operating the vehicle while under the influence, we note that

Officer Chmielewski responded to the scene shortly after receiving a report

that the accident occurred. Upon arriving, the officer immediately observed

signs that Appellant had consumed alcohol that impaired her ability to drive.



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In particular, the evidence that the Commonwealth properly proffered to show

that Appellant was impaired by alcohol included that Appellant had slurred

speech, red, glossy eyes, and lacked an ability to balance. See Eichler, 133

A.3d at 790; Teems, 74 A.3d at 147.          These indicia of intoxication support

an inference that Appellant was impaired by alcohol consumption. Tucker,

143 A.3d at 964.         Accordingly, the Commonwealth satisfied the second

element of DUI—general impairment such that Appellant is not entitled to

relief.

          Appellant’s final two issues regarding Officer Chmielewski’s testimony

are related and we address them together. Appellant asserts that the trial

court improperly allowed Officer Chmielewski to “express an opinion as to the

methods and manner of administration of the [f]ield [s]obriety [t]ests by

Acting Sergeant Corey Dumont, and to testify as to Acting Sergeant Dumont’s

conclusions.” Id. at 19. Appellant further argues that “[b]ecause it required

specialized knowledge, Officer Chmielewski’s testimony was inadmissible as

‘lay opinion,’” and “Officer Chmielewski could not have testified as an expert

in this case [because] Officer Chmielewski was not ‘qualified’ as an expert[.]”

Id. at 21 (citing Pa.R.E. 701, 702).

          Initially, we note that this issue is waived because of the failure of

counsel to object at trial to Officer Chmielewski’s observations regarding

Appellant being off balance and failing to count her steps properly during the

field sobriety tests. See Pa.R.A.P. 302(a). Additionally, Appellant failed to

include this issue in her concise statement.           See Commonwealth v.

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Barnhart, 933 A.2d 1061, 1066 n.10 (Pa. Super. 2007) (citation omitted)

(indicating that an appellant’s failure to include an issue in a Pa.R.A.P. 1925(b)

statement results in waiver of the issue).

      Even if this issue were not waived, Officer Chmielewski did not testify

as an expert and was permitted to provide lay testimony on the subject of

Appellant’s signs of intoxication.

      In general,

      [t]he standard of review employed when faced with a challenge to
      the trial court’s decision as to whether or not to admit evidence is
      well settled. Questions concerning the admissibility of evidence
      lie within the sound discretion of the trial court, and a reviewing
      court will not reverse the trial court’s decision absent a clear abuse
      of discretion. Abuse of discretion is not merely an error of
      judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations

omitted).

      Pennsylvania Rule of Evidence 702 provides:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

         (a) the expert’s scientific, technical, or other specialized
         knowledge is beyond that possessed by the average
         layperson;

         (b) the expert’s scientific, technical, or other specialized
         knowledge will help the trier of fact to understand the
         evidence or to determine a fact in issue; and

         (c) the expert’s methodology is generally accepted in the
         relevant field.

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Pa.R.E. 702. Pennsylvania Rule of Evidence 701 provides:

       If a witness is not testifying as an expert, 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.       A layperson is permitted to testify to certain indicia of

intoxication. See Commonwealth v. Ragan, 652 A.2d 925, 928 (Pa. Super.

1995) (noting that “non-expert testimony is admissible to prove intoxication

where such testimony is based upon the witness’ observation of the

defendant’s acts and speech and where the witness can opine as to whether

the defendant was [intoxicated]”).7

       Here,    the   Commonwealth         was     not   required   to   qualify   Officer

Chmielewski as an expert in order for her to testify to her own observations

of Appellant’s failure to follow instructions. Moreover, Officer Chmielewski did

not testify that Appellant was considered to be under the influence specifically

for failing a field sobriety test or that Appellant had failed any of the tests.

Rather, the officer testified to indicia of intoxication to which a layperson is

permitted to testify, including Appellant’s slurred speech, red, glossy eyes,


____________________________________________


7 We may rely on case law predating the enactment of the Pennsylvania Rules
of Evidence to the extent the case law does not contradict the
rules. Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super.
2010).

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and inability to maintain her balance. See id. Accordingly, the trial court did

not err in permitting Officer Chmielewski’s testimony on this subject.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2018




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