J-S20013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JO LEE DIDYOUNG                            :
                                               :
                       Appellant               :   No. 1201 MDA 2017

              Appeal from the Judgment of Sentence July 5, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005487-2016


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

DISSENTING MEMORANDUM BY OTT, J.:                         FILED JULY 06, 2018

        While I agree with the Majority that Didyoung’s brief is undistinguished,

this appeal from a DUI conviction is not a complex matter and I believe

Didyoung’s argument regarding sufficiency of the evidence is nonetheless

discernable. Accordingly, I would not find that argument waived. Moreover,

I believe the argument has merit and would reverse the conviction. 1             The

underlying facts of this matter are as follows:
____________________________________________


1   Our standard of review for a claim of insufficient evidence is as follows:

        In reviewing a sufficiency of the evidence claim, we must
        determine whether the evidence admitted at trial, as well as all
        reasonable inferences drawn therefrom, when viewed in the light
        most favorable to the verdict winner, are sufficient to support all
        elements of the offense. Additionally, we may not reweigh the
        evidence or substitute our own judgment for that of the fact
        finder. The evidence may be entirely circumstantial as long as it
        links the accused to the crime beyond a reasonable doubt.
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       On June 12, 2017, Didyoung was convicted of violating 75 Pa.C.S. §

3802(d)(2), which states:

       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.

75 Pa.C.S. § 3802(d)(2).2

       To sustain a conviction under this section, the Commonwealth must

prove the defendant was (1) operating a vehicle, (2) under the influence of a

drug, and (3) the drug caused the person to be so impaired that the person

was incapable of driving safely.




____________________________________________




Commonwealth v. Gorman, 183 A.3d 1035, 1037 (Pa. Super. 2018)
(citations omitted).

2 The drug in question was Xanax. Didyoung was originally charged with
violating 75 Pa.C.S. § 3802(a)(1) regarding alcohol, and (d)(1), regarding any
amount of Schedule I drugs, or Schedule II or III drugs (that were not
medically prescribed) or metabolite thereof, in the bloodstream. Those
charges were dismissed by a different magisterial district judge at a prior
preliminary hearing. The current charge was subsequently filed and bound
for trial.




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       In her Pa.R.A.P. 1925(a) opinion, the trial judge related the following

facts she relied upon in convicting Didyoung.

              Here, Officer Christopher Sacks of the Muhlenberg Township
       Police Department credibly testified that on April 9, 2016, at
       approximately 3:17 a.m., he was on patrol in the area of
       Tuckerton Road in Berks County, Pennsylvania. Officer Sacks
       observed [Didyoung’s] vehicle traveling west on Tuckerton Road,
       and a portion of the vehicle crossed over the center portion of the
       roadway,[3] which forced Officer Sacks to swerve to the right to
       avoid a collision. Officer Sacks turned around and initiated a
       traffic stop. When he made contact with [Didyoung], Officer Sacks
       noticed that she appeared lethargic and very tired.

             Officer Sacks asked [Didyoung] if she was okay, and
       [Didyoung] simply stared at him for several seconds. Officer
       Sacks again asked [Didyoung] if she was okay and if she needed
       an ambulance. [Didyoung] replied that she was on Xanax. Officer
       Sacks then asked [Didyoung] to get out of her vehicle. Officer
       Sacks credibly testified that [Didyoung] had a problem with her
       motor skills and depth perception, and that when she reached for
       the door handle it was several inches away from where her fingers
       were located.

              Officer Sacks, who has been a law enforcement officer for
       twenty years, received standard DUI training, and also attended
       the advanced recognition of impaired driving program offered by
       the Pennsylvania State Police. In the advanced recognition class,
       Officer Sacks received training on how to detect whether
       individuals are under the influence of drugs that affect the central
       nervous system [CNS]. Officer Sacks testified that he has come
       into contact with people who were under the influence of
       controlled substances before in his work as a police officer.

             Officer Sacks asked [Didyoung] to perform various field
       sobriety tests. On the walk-and-turn test, [Didyoung] exhibited
       seven out of a maximum of eight clues. [Didyoung] also showed
       signs of impairment during the one-leg stand and finger-to-nose
       tests. Accordingly, Officer Sacks concluded that [Didyoung] was
____________________________________________


3 Officer Sacks also testified there were no lines painted on the roadway
denoting lanes of travel. See N.T. Trial 6/12/2017 at 14.

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J-S20013-18


       not capable of safely operating a motor vehicle, took her into
       custody, and transported her to the DUI Processing Center.
       Officer Sacks’s testimony, taken alone, was sufficient to support
       [Didyoung’s] conviction.

Trial Court Opinion, 9/25/2017, at 4-5.

       The evidence related by and relied upon by the trial court demonstrated

that Didyoung had been operating a vehicle, had taken Xanax at some point

prior to operating the vehicle, and failed several field sobriety tests. However,

upon inspection, I believe the evidence fails to prove beyond a reasonable

doubt that whatever impairment Didyoung suffered was caused by the Xanax.

Without proof of that material fact, the conviction is infirm.

       While Officer Sacks testified he had taken some advanced DUI courses

from the Pennsylvania Police, which included some discussion of central

nervous system depressants, Officer Sacks was not certified as a drug

recognition officer. N.T. Trial, 6/12/17, at 24. He had Didyoung perform only

one field sobriety test that was designed to detect CNS depressant use. Id.

at 6. The test was similar to a HGN test.4 Id. However, Officer Sacks could

not confirm that the test was recognized and accepted by the scientific

community, so the result of the test was excluded from evidence. Id. at 8.

____________________________________________


4HGN stands for horizontal gaze nystagmus. The results of this test as indicia
of intoxication are currently inadmissible in Pennsylvania courts.       See
Commonwealth v. Stringer, 678 A.2d 1200 (Pa. Super. 1996);
Commonwealth v. Apollo, 603 A.2d 1023 (Pa. Super. 1992); and
Commonwealth v. Moller, 523 A.2d 1186 (Pa. Super. 1987).




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Further, Officer Sacks was disqualified from relating any of the observed

indicia of impairment to the use of a CNS depressant. Id. at 13. Finally, there

is no indication in the record that the effects of CNS depressants in general,

or Xanax in particular, are so well known that they may be related to specific

observable behavior by a lay person.5

       In light of the above, and accepting the evidence in the light most

favorable to the Commonwealth as verdict winner, as we are required to do,

I believe the link between Didyoung’s use of Xanax and her inability to operate

her vehicle safely is too tenuous to support her conviction.        Therefore, I

respectfully dissent.




____________________________________________


5 In Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011), our Supreme
Court held there was no hard and fast rule requiring expert testimony to relate
the inability to drive safely to the allegedly intoxicating agent. Rather, such a
decision was to be undertaken on a case-by-case basis. Here, unlike every
other case we reviewed, including Griffith, the observing police officer was
precluded from linking the use of the drug to the inability to safely operate
the vehicle. Therefore, there is a lack of even lay testimony actually linking
the alleged cause to the effect.

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