J-S80003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    VAUGHN DANTE TYNER                         :
                                               :
                      Appellant                :   No. 3780 EDA 2016

          Appeal from the Judgment of Sentence September 15, 2016
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003314-2016

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED JANUARY 14, 2019

       Vaughn Dante Tyner’s appeal from the judgment of sentence of

seventy-two hours to six months of imprisonment, plus community service,

fines, and costs, after he was convicted of driving under the influence

(“DUI”), returns to this Court following remand.1 We affirm.

       The trial court summarized the underlying facts as follows.

             On February 19, 2016, Trooper [Tyrone] Bradley was
       working the 11 pm to 7 am shift along with his partner Trooper
       Woody. Trooper Bradley was patrolling I-95 southbound in a
       marked state police vehicle, when he observed a red mustang in
       the middle lane, traveling at [a] high rate of speed in the area of
       Exit 3, which is located in Chester, Delaware County,
       Pennsylvania.    Further, Trooper Bradley observed that the
       vehicle weaved within its lane of travel before crossing over the
       dotted white lines with the passenger-side tires, and then began
____________________________________________


1 On May 5, 2018, this Court remanded for the filing of new briefs. The
additional briefing was completed when the Commonwealth filed its brief on
November 5, 2018.
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     driving in between the middle and right lanes. Trooper Bradley
     followed the vehicle and clocked it going 83 miles per hour in a
     55 mile[-]per[-]hour zone.1
           ______
           1   [The Commonwealth offered into evidence] a
           Pennsylvania Department of Transportation, the Bureau of
           Motor Vehicles certificate of speedometer accuracy.
           [Trooper Bradley] further explained that his vehicle’s
           speedometer was tested and calibrated on September 2,
           2015.

            Trooper Bradley subsequently noticed the red mustang,
     which was still traveling at a high-rate of speed, cross the white
     line a second time. At this time Trooper Bradley activated his
     lights and sirens and initiated a traffic stop on South I-95 at mile
     marker 0.3, which is located in Lower Chichester Township,
     Delaware County, Pennsylvania. The driver complied by pulling
     over.

           Next, Trooper Bradley, along with Trooper Woody
     approached the red mustang. Trooper Bradley approached the
     driver, who[m][sic] he learned to be [Appellant], and introduced
     himself as a Pennsylvania State Trooper. Trooper Bradley asked
     Appellant for his driver’s license, registration, and insurance
     card, while proceeding to explain to Appellant his reasoning for
     pulling him over. Trooper Bradley observed that Appellant did
     not appear to be focused when locating the requested
     documents.     Moreover, Appellant asked Trooper Bradley to
     repeat the documents needed.

           While speaking with Appellant, Trooper Bradley detected
     an odor of alcohol on his breath. Additionally, Trooper Bradley
     detected a strong odor of burnt marijuana coming from within
     the vehicle, and observed that Appellant’s eyes were bloodshot,
     red, glassy, and that his pupils were dilated. When asked about
     the odor of marijuana, Appellant stated that there was no
     marijuana in the vehicle, but that he had smoked it in the car
     with some friends earlier that evening. When asked if he had
     consumed any alcoholic beverages that evening, Appellant
     stated that he had one tequila sunrise and then one double-shot
     of rum and coke.

           At this point, Trooper Bradley asked Appellant to exit the
     vehicle to perform standardized field sobriety tests. Trooper


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       Bradley started with the horizontal gaze nystagmus test. Next,
       Trooper Bradley asked Appellant to perform the walk-and-turn
       test. In regard to the walk-and-turn test, while giving Appellant
       the instructions, Trooper Bradley observed that Appellant visibly
       swayed, [and] could not keep his balance. During the first series
       of [nine] steps, Trooper Bradley observed that Appellant lost his
       balance, did not walk in a straight line, raised his arms, did not
       touch heel-to-toe, and completed an improper turn. On the
       second series of steps, there was no heel-to-toe, Appellant
       raised his arms for balance, did not walk in a straight line, and
       did not count aloud as instructed.

             Next, Trooper Bradley conducted the on[e]-legged stand
       test. Again, he walked through the instructions with Appellant.
       During the test, Trooper Bradley observed that Appellant visibly
       swayed, put his foot down several times, could not keep his
       balance and raised his arms. At this point, Trooper Bradley
       stopped the administration of the field sobriety tests.

             Based on Trooper Bradley’s observations of Appellant on
       the road, his contact of Appellant’s person, Appellant’s
       performance on the field sobriety tests, and Appellant’s
       admission to consuming alcohol and smoking marijuana, Trooper
       Bradley believed that Appellant was incapable of safe driving and
       placed him under arrest for driving under the influence.

Trial Court Opinion, 3/6/17, at 2-4 (citations omitted).

       Appellant proceeded to a non-jury trial on DUI—general impairment,

75 Pa.C.S. § 3802(a)(1), and DUI—controlled substance (impairment), 75

Pa.C.S. § 3802(d)(2),2 as well as several summary offenses. The trial court




____________________________________________


2The Commonwealth had originally charged Appellant with a violation of 75
Pa.C.S. § 3802(d)(1)(iii) (DUI—controlled substance (metabolite)), but did
not proceed on that count after the trial court excluded blood test results
under Birchfield v. North Dakota, 136 S. Ct. 2160 (2016).



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found Appellant guilty of both DUI charges.3          Appellant was sentenced as

indicated above, and filed a timely post-sentence motion. After its denial,

Appellant filed a timely notice of appeal, and both Appellant and the trial

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

       In this Court, Appellant’s counsel filed an application to withdraw and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                    We denied

counsel’s application to withdraw and remanded for counsel to file an

advocate’s brief upon the determination that Appellant was able to make a

non-frivolous argument that the evidence was insufficient to sustain his DUI

convictions in light of this Court’s decision in Commonwealth v. Gause,

164 A.3d 532 (Pa.Super. 2017) (en banc).

       On October 22, 2018, after we granted three extensions of time to do

so, Appellant filed the new brief late.          Therein, he framed the following

questions for our review.

              1)   Whether there was insufficient evidence to support
       the trial court’s finding of guilt on Count 1 — DUI-general
       impairment because the Commonwealth failed to present
       sufficient evidence that [Appellant] was incapable of safely
       operating a motor vehicle because of alcohol consumption?

             2)    Whether there was insufficient evidence to support
       the trial court’s finding of guilt on Count 4 — DUI-controlled
____________________________________________


3 Appellant was also convicted of exceeding the applicable speed limit by
twenty-eight miles per hour and fined accordingly. 75 Pa.C.S. § 3362(a)(2),
(c).



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      substances when the Commonwealth failed to present sufficient
      evidence that [Appellant] was incapable of operating a motor
      vehicle because of drug consumption?

            3)    Whether Trooper Bradley’s opinion testimony was
      improperly admitted as he was not qualified as an expert in
      either alcohol or drug consumption and their individual effects on
      the body.

Appellant’s brief at 5 (unnecessary capitalization omitted).

      The following principles apply to Appellant’s sufficiency claims.

Evidentiary sufficiency is a question of law and “our standard of review is de

novo and our scope of review is plenary.”      Commonwealth v. Williams,

176 A.3d 298, 305 (Pa.Super. 2017).

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence admitted at trial and all reasonable
      inferences drawn therefrom, viewed in the light most favorable
      to the Commonwealth as verdict winner, were sufficient to prove
      every element of the offense beyond a reasonable doubt. [T]he
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be
      accorded to each witness’s testimony and to believe all, part, or
      none of the evidence. The Commonwealth may sustain its
      burden of proving every element of the crime by means of
      wholly circumstantial evidence. Moreover, as an appellate court,
      we may not re-weigh the evidence and substitute our judgment
      for that of the fact-finder.

Id. at 305-06.

      Appellant was convicted under the following provisions of the DUI

statute.

      (a) General impairment.—

            (1) An individual may not drive, operate or be in actual
            physical control of the movement of a vehicle after


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            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.

            . . . .

      (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.

      We have no hesitation in concluding that the evidence was sufficient to

prove that Appellant was impaired to the point that he was incapable of

driving safely.   Appellant, exceeding the speed limit by nearly thirty miles

per hour, weaved within his lane and outside of it. N.T. Trial, 8/15/16, at 9-

10.   Appellant had difficulty focusing when Trooper Bradley conducted the

traffic stop and asked for Appellant’s documentation. Id. at 11-12. When

asked to exit his vehicle, Appellant was slow, sluggish, and unsure of his

footing. Id. at 13. Further, Appellant failed the standardized field sobriety

tests. Id. at 15-16. Thus, the Commonwealth established the elements of

impairment and inability to drive safely.    See, e.g., Commonwealth v.

Mobley, 14 A.3d 887, 890 (Pa.Super. 2011) (holding impaired ability to




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drive safely was proven where the defendant failed field sobriety tests,

smelled of alcohol, and ran a stop sign with a police officer in plain view).

       However, the Commonwealth was also obligated to offer causation

evidence. Specifically, to meet its burden of proof under subsection (a)(1),

the Commonwealth was required to prove beyond a reasonable doubt that

Appellant consumed a sufficient amount of alcohol to cause his impairment.

Mobley, supra at 890. Likewise, to establish that Appellant was guilty of

violating subsection (d)(2), the Commonwealth had to prove that Appellant’s

inability to drive safely was caused by the influence of a drug or combination

of drugs.4     Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super.

2012).

       In proving the causation elements of the offenses, expert testimony is

not always needed; rather, the necessity for such evidence depends on the

specific facts of the case.     Commonwealth v. Griffith, 32 A.3d 1231, 1238

(Pa. 2011). “[A] police officer who has perceived a defendant’s appearance
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4  Our legislature has recognized that a person may be unable to drive safely
from a combination of alcohol and drugs where neither the alcohol nor drugs
alone caused substantial impairment. 75 Pa.C.S. § 3802(d)(3). See also
Commonwealth v. Plybon, 421 A.2d 224, 226 (Pa.Super. 1980) (“[A]
person may consume a small amount of alcohol which by itself would not
cause the person to violate [the DUI statute] and yet when combined with a
controlled substance would render that same person incapable of safe
driving in violation of [subsection (d)(3)].”).      Although Appellant was
charged with a subsection (d)(3) violation, and the evidence seemingly
supports a conviction under that subsection more strongly than under (a)(1)
or (d)(2), the Commonwealth without explanation declined to pursue the
subsection (d)(3) count at trial. See N.T. Trial, 8/15/16, at 3.



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and conduct is competent to express an opinion, in a prosecution for [DUI]

as to the defendant’s state of intoxication and ability to safely drive a

vehicle.” Commonwealth v. Butler, 856 A.2d 131, 137 (Pa.Super. 2004).

While testimony generally is required regarding marijuana impairment, it is

unnecessary where “the circumstances are so telling of recent marijuana use

as to form a clear connection between marijuana use and impairment.”

Gause, supra at 537.

      In this case, the only evidence of the amount of alcohol Appellant

consumed was his admission that he had one tequila sunrise and one double

rum and Coke at an undisclosed time before driving. N.T. Trial, 8/15/16, at

13.   There is no record evidence concerning the amount of marijuana

Appellant smoked; as for the timing, Appellant indicated that “he smoked

[marijuana] inside the vehicle with his friends earlier that night.”      Id.

However, at the time of the traffic stop, Trooper Bradley noticed both the

strong smell of burnt marijuana “coming from inside the vehicle,” and the

smell of alcohol “on [Appellant’s] breath and coming from within the

vehicle.”   Id. at 12.   The trooper observed that Appellant’s “eyes were

bloodshot, red, glassy, and his pupils were dilated.” Id. Further, the trooper

noted Appellant’s sluggishness and unsteadiness discussed above.

      Trooper Bradley was neither offered nor accepted as an expert

witness.    Indeed, although Trooper Bradley offered lay opinion testimony

that Appellant was incapable of unsafely driving, no opinion testimony of any



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kind was elicited from or offered by the trooper as to the cause of

Appellant’s impairment.    Trooper Bradley testified to having personal and

professional experience observing people under the influence of alcohol,

controlled substances, or both.    Id. at 6-8.   However, he did not indicate

what his experience has taught him about the observable signs of alcohol

impairment and impairment caused by controlled substances, or whether

there are indicia of impairment unique to one type of impairment or the

other. The full extent of Trooper Bradley’s opinion testimony was as follows:

      Based on my observations of him behind the steering wheel
      driving, unable to maintain lanes, his excessive speed[;] my
      contact with him, bloodshot eyes, glassy eyes, dilation of pupil,
      unable to walk, unsure of his footing[;] and basically his
      admissions of consuming alcoholic beverages and smoking
      marijuana[;] I believed that he was incapable of safe driving,
      and I placed him under arrest for driving under the influence.

Id. at 17.

      Appellant argues that the Commonwealth’s evidence failed to show

that Appellant used marijuana recently, and there was no indication that

marijuana or paraphernalia was in the car at the time of the traffic stop.

Appellant’s brief at 15.   Appellant contends that the finding that Appellant

was under the influence of marijuana to the degree that he could not safely

operate his vehicle cannot be based just upon the lingering odor in

marijuana in the car and his admission that he smoked it in the car earlier

that evening.   Id.   Appellant insists that, under these circumstances, the

Commonwealth was required to call an expert “to testify as to the effects



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marijuana has on the body and to show a clear connection between

marijuana and impairment.” Id. at 15-16. Along the same lines, Appellant

asserts that the evidence failed to show “a clear connection between alcohol

consumption and the ability to safely operate a motor vehicle.” Id. at 16.

      We find our resolution of the issue informed by this Court’s decision in

Gause, supra. In that case, when Gause was stopped for driving without

illuminated taillights, the officer smelled alcohol and Gause admitted to

having consumed beer.     Id. at 535.   Gause also exhibited eyelid tremors,

which the officer indicated was indicative of marijuana use.       Id. at 536.

Another officer who had administered sobriety tests opined that Gause was

impaired by both alcohol and marijuana. Id. at 537.

      On appeal, this Court examined Gause’s convictions under subsections

(a)(1) and (d)(2) of the DUI statute.        This Court first held that the lay

opinion testimony offered by the officers as to causation was improper. We

determined that, based upon the lack of physical evidence of marijuana use,

and “no admission from Gause that he had recently smoked marijuana,” the

officer’s “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[.]”   Id. at 539 (emphasis omitted).        This was because “[u]nlike

staggering, stumbling, glassy or bloodshot eyes, and slurred speech, ‘the

ordinary signs of intoxication discernable by a layperson,’ eye tremors are



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not an ordinary sign of ingestion of a controlled substance, in particular,

marijuana.” Id. at 539. Thus, we concluded that the Commonwealth failed

to prove that Gause “was under the influence of a drug to a degree that his

ability to safely drive was impaired.” Id. at 540.

      Further, this Court concluded that the record did not support a finding

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

incapable of driving safely.     Although the officers detected the odor of

alcohol when questioning Gause, and Gause admitted that he had one

twelve-ounce light beer, Gause “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.”     Id. at 541.    Accordingly, this Court vacated Gause’s

convictions under both subsections (d)(2) and (a)(1).

      The presence in the instant case of the circumstances notably absent

in Gause leads us to conclude that the evidence and all reasonable

inferences     therefrom,   viewed   in   the   light   most   favorable   to   the

Commonwealth as verdict-winner, was sufficient to sustain Appellant’s

convictions.    Unlike the defendant in Gause, Appellant did admit that he

had smoked marijuana that evening; Trooper Bradley did smell burnt

marijuana in Appellant’s vehicle; Appellant did drive unsafely; and Appellant

did exhibit ordinary signs of marijuana use discernable by a layperson,

namely glassy, bloodshot eyes, dilated pupils, and lack of focus in retrieving



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his paperwork. We conclude that, under the circumstances of this case, the

fact finder was able to ascertain the causation element through reasonable

inferences from Trooper Bradley’s lay testimony. See Commonwealth v.

Matthews, 389 A.2d 71, 73 (Pa. 1978) (“[C]ausation need not be

established by direct evidence but may follow from circumstantial evidence

of a reliable and persuasive nature.”); see also Commonwealth v.

DiPanfilo, 993 A.2d 1262, 1267 n.5 (Pa.Super. 2010) (“[I]if a police 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 necessary to establish the link

between the erratic driving and the driver’s marijuana use.”).

     Likewise, unlike the officers in Gause who expressly indicated that the

defendant did not show the usual signs of alcohol impairment, Trooper

Bradley smelled alcohol on Appellant’s breath and Appellant exhibited typical

indicia of alcohol impairment, namely glassy and bloodshot eyes, lack of

balance, stumbling, poor performance on sobriety tests such that Appellant

“was about to fall over.”   N.T. Trial, 8/15/16, at 15.   From this, the trial

court was able to conclude that Appellant’s alcohol consumption had caused

him to be impaired to the point that he was unable to drive safely.      See,

e.g., Commonwealth v. Hartle, 894 A.2d 800, 804–05 (Pa.Super. 2006)

(holding evidence sufficient to establish DUI—general impairment where the



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defendant “ran a stop sign, smelled of alcohol, had bloodshot and glassy

eyes, was unsteady on his feet, refused to perform field sobriety tests, and

refused a breath test”); Butler, supra at 136-37 (concluding evidence that

the defendant who had been driving erratically smelled of alcohol, had

bloodshot eyes and slurred speech, and was unable to stand, was sufficient

to establish the defendant’s alcohol impairment rendered him unable to drive

safely). Therefore, both of Appellant’s sufficiency challenges fail.

       Appellant’s final issue on appeal is that Trooper Bradley’s opinion

testimony was improperly admitted. See Appellant’s brief at 5. Appellant

did not make this objection at trial, and therefore waived the issue.5 See,

e.g., Commonwealth v. Whitaker, 878 A.2d 914, 920 n.3 (Pa.Super.

2005) (“To preserve a claim for review, the defendant must make a timely

and specific objection to the introduction of the challenged evidence at

trial.”). As such, Appellant’s final issue merits no relief.

       Judgment of sentence affirmed.

____________________________________________


5 In any event, to the extent that Trooper Bradley offered opinion evidence,
it was lay opinion testimony the likes of which this Court has held to be
admissible in similar circumstances. See Butler, supra at 137 (noting
officer observing DUI defendant is competent to opine as to intoxication and
driving ability); see also Commonwealth v. Davies, 811 A.2d 600, 603
(Pa.Super. 2002) (“A police officer may testify to his or her opinion as to a
suspect’s alcohol-induced intoxication and the suspect’s ability to drive safely
when the officer has observed the suspect’s appearance and acts. . . . We
find no basis upon which to distinguish opinion testimony of drug-induced
intoxication from opinion testimony of alcohol-induced intoxication where the
witness is personally familiar with the effects of narcotics.”) (cleaned up).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/19




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