J.A22031/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
CURTIS LEE FYE,                             :
                                            :
                          Appellant         :     No. 2148 MDA 2013


           Appeal from the Judgment of Sentence November 4, 2013
               In the Court of Common Pleas of Centre County
              Criminal Division No(s).: CP-14-CR-0000255-2013

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 24, 2014

        Appellant, Curtis Lee Fye, appeals from the judgment of sentence

entered in the Centre County Court of Common Pleas following a bench trial

and his convictions for driving under the influence—general impairment1

(“DUI”) and two summary offenses not at issue. Appellant claims the court

erred by permitting the Commonwealth to introduce evidence of his prior

DUI charge and his performance on the horizontal gaze nystagmus (“HGN”)

test and challenges the sufficiency of evidence. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
J. A22031/14


      We adopt the facts as set forth by the trial court. See Trial Ct. Op.,

1/20/14, at 3-6.    The court found Appellant guilty and sentenced him on

November 4, 2013, to six months’ intermediate punishment.           Appellant

timely   appealed   and timely   filed   a court-ordered Pa.R.A.P. 1925(b)

statement.

      Appellant raises the following issues on appeal:

         Did the trial court err in permitting the Commonwealth to
         present evidence of [Appellant’s] prior DUI charge at trial?

         Did the trial court err in permitting the Commonwealth to
         present evidence regarding [Appellant’s] performance on
         the HGN test during trial?

         Did the trial court err in finding that the Commonwealth
         had presented sufficient evidence to prove beyond a
         reasonable doubt that [Appellant] was intoxicated to the
         extent that he was incapable of driving safely?

Appellant’s Brief at 4.

      We summarize Appellant’s arguments for all of his issues. Appellant

suggests the court erred by permitting the Commonwealth to introduce

evidence of his prior DUI offense as set forth in his driving record.     He

acknowledges that the Commonwealth introduced his driving record solely

for the purposes of identification but maintains identification was not at

issue. Appellant opines the court also erred by allowing the Commonwealth

to introduce his performance on the HGN test. He states that prior to trial,

he successfully moved to prevent the Commonwealth from introducing the

HGN test.    Appellant maintains the Commonwealth “violated the spirit” of



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the court’s ruling on his pretrial motion by presenting the officer’s testimony

without reference to the HGN test. Id. at 15. Finally, Appellant challenges

the sufficiency of evidence for his DUI conviction.           In response, the

Commonwealth countered, inter alia, that it never introduced evidence of

the HGN test until Appellant opened the door by specifically cross-examining

the police about it. We hold Appellant is not entitled to relief.

      The standard of review for a challenge to the sufficiency of evidence is

de novo, as it is a question of law. Commonwealth v. Sanford, 863 A.2d

428, 431 (Pa. 2004).

            [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007)

(citations and quotation marks omitted). “When reviewing the sufficiency of

the evidence, an appellate court must determine whether the evidence, and

all reasonable inferences deducible from that, viewed in the light most

favorable to the Commonwealth as verdict winner, are sufficient to establish

all of the elements of the offense beyond a reasonable doubt.” Id. at 1237.

      Appellant was convicted under the following driving under the

influence statute:

         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.

75 Pa.C.S. § 3802(a)(1).          In order to be found guilty 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, 985 A.2d 871, 879 (Pa. 2009). Furthermore,

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

Id. Finally, the “admission of evidence is a matter vested within the sound

discretion of the trial court, and such a decision shall be reversed only upon




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a showing that the trial court abused its discretion.”      Commonwealth v.

Reid, 811 A.2d 530, 550 (Pa. 2002) (citation omitted).

      Instantly, after careful consideration of the parties’ briefs, the certified

record, and the decision of the Honorable Jonathan D. Grine, we affirm on

the basis of the trial court’s decision. See Trial Ct. Op. at 1-6 (holding court

admitted Appellant’s driving record for identification purposes only; even if

such admission was erroneous, error was harmless given this was bench

trial; Commonwealth did not reference HGN in its case in chief; Appellant

opened door to HGN test results on cross-examination; even if erroneous,

admission of HGN test results was harmless error as court did not consider

HGN test results in determining whether Appellant was guilty; and record

was sufficient to establish Appellant’s guilt). Accordingly, having discerned

no abuse of discretion or error of law, we affirm the judgment of sentence.

See Segida, 985 A.2d at 879; Ratsamy, 934 A.2d at 1235-36; Reid, 811

A.2d at 550.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2014




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McKenrick                                                                                                                  1/,1/,
Dunkle
                IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                                                  CRIMINAL DIVISION

            COMMONWEALTH OF PENNSYLVANIA                         )
                         Plaintiff,                              )
                    v.                                           )       No. CP-14-CR·Z55-Z0 13
                                                                 )
                                                                                                                  .....,
            CURTIS LEE FYE,                                      )
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                                   Defendant.                    )

            Attol'l1ey for Plaintiff:                                    Daniel C. McKendri~k?!f§q. <::>
            Attol'l1eyfor Defendant:                                     Jason Dunkle, Esq.:,:;!=   ~
                                                                                              ~;2~(_~           ~
                                                                                                                ,J:'"

                    OPINION IN RESPONSE TO MATTERS COMPLAINED OF ON APPEAL0:>

                    Presently before this COUl1 is an appeal filed by Curtis Lee Fye (hereinafter "Appellant.")

            After a non-jury trial on September 3, 2013, Appellant was found guilty of one count of

            Exceeding 55 MPH in Other Loc. by 12 MPH, 75 Pa.C.SA §3362(a)(2); one count of Turning

            Movements and Required Signals, 75 Pa.C.S.A. §3334(a) and one count ofDUI: General

            Impairment, 75 Pa.C.S.A. 3802(a)(1). Appellant was found not guilty of one count of Careless

            Driving, 75 Pa.C.SA §3714(a). Appellant was sentenced on November 4,2013.

                   Appellant presents three matters complained of on appeal: I) tllis Court erred in

            permitting the COlmnonwealth to present evidence of Defendant's prior DUI charge at trial; 2)

            this Court erred in permitting the Commonwealth to present evidence regarding the Defendant's

            performance on the HGN test during trial; and 3) this COUl1 erred in finding that the

            Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that Appellant

            was intoxicated to the extent he was incapable of driving safely. Appellant does not contest his

            conviction under 75 Pa.C.SA §3362(a)(2) or hls conviction under 75 Pa.C.S.A. §3334(a). The

            COUl1 will address each matter presented by Appellant in turn.

               I. Evidence of Appellant's Prior DUI Charge

               The COl1ll1lonwealth attempted to present evidence of Appellant's prior DUI charge at trial in


000 ORD OS
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 several ways. Initially, the Commonwealth offered Appellant's driving record, which noted his

 previous DUI charge, for identification purposes and as evidence that Defendant had previously

submitted to a blood test. The COutt provisionally accepted the record for identification

purposes only, indicating that if Appellant should testify and indicate his reason for refhsing the

blood test was a fear of needles, the Court may consider admitting evidence of his previous DUI

for the limited purpose of showing he had previously submitted to a blood test. However,

Defendant did not testify, and this Court ultimately accepted the driving record for purposes of

identification only.

    The Commonwealth also attempted to introduce the criminal information from Appellant's

previous DUI on rebuttal. However, this Court sustained Appellant's objection and did not

accept the information into evidence.

    As a generalmle, evidence of prior criminal activity by a defendant is inadmissible.

Commonwealth v. Kenny, 474 A.2d 313, 317 (Pa.Super. 1984). There are several circumstances

under which evidence of prior criminal activity may be admissible, including motive, intent,

absence of mistake or accident, common scheme, or identity. Ie!. None of these circumstances

were present in the instant case, however, and the Court therefore did not accept the proffered

evidence of Appellant's prior Dur into the record, with the exception of Appellant's driving

record, which was only admitted for the purposes of identification.

    Even if this Court erred in permitting the Commonwealth to present the evidence, the error

was harmless. The instant trial was a non-jury trial, with this Court sitting as the finder of fact.

Pelillsylvania COutts have consistently held that 'Judicial fact finders are capable of disregarding

most prejudicial evidence." See Commonwealth v. Council, 421 A.2d 623, 625 (Pa. 1980);

Commonwealth v. Seigrist, 385 A.2d 405 (Pa.Super. 1978); Commonwealth v. Stokes, 421 A.2d

240 (Pa.Super. 1980). This COutt, although it heard limited testimony on Appellant's prior DUr,

did not consider that evidence when determining his guilt or innocence in the instant matter and
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therefore did not err.

    II. HGNTest

    Horizontal Gaze Nystagmus ("HGN") test results have been deemed scientific evidence by

Pennsylvania cOUl1s, and therefore require an adequate foundation prior to their admissibility.

Commonwealth v. Stringer, 678 A.2d 1200 (Pa.Super. 1996). In the instant case, Appellant

claims tIllS Court erred in permitting the Commonwealth to present evidence regarding

Appellant's performance on the HGN test during the non-jury trial. The Court disagrees.

    Initially, the Court notes that Appellant filed a Motion in Limine to preclude admission of

Appellant's performance on the HGN tests, which this COUl1 granted, with the provision that the

Commonwealth was permitted to present evidence of Appellant's swaying during the

administration of the test, as swaying or lack thereof is not a result of the HGN test.

    During the Commonwealth's case in chief, Trooper Buchheit testified only that he "noticed a

slight sway whenever I was performing a test on him, that his head was circling." Trooper

Buchheit did not testify to which test he was performing (although he was referring to the HGN

test, as it was the only test he performed on Appellant), and did not refer to any nystagmus

demonstrated by Appellant. No reference was made to Appellant's actual results on the HGN

test until Appellant raised the issue on cross-examination with questions about the "pinging"

demonstrated by Appellant during the administration of the HGN test. On redirect, the

Commonwealth asked Trooper Buchheit to clarify what he meant by "pinging." Appellant,

therefore, raised the issue of his performance on the HGN test, and opened the door to the

limited redirect questions by the Commonwealth.

   Even if tIllS COUl1 erred in permitting Appellant to pursue this line of questiOillng, or in

permitting the Commonwealth to redirect, it was a harmless error, as this Court did not consider

any nystagmus demonstrated by Appellant in determining whether he was intoxicated to the

point where he could no longer safely operate a vehicle. The C0U11 did consider Appellant's
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 swaying during the administration of the test, but maintains this was not an error as swaying is

 not a result of the HGN test as contemplated by current jurisprudence and therefore requires no

 foundation prior to its admission.

    III.       75 Pa.C.S.A. 3802(a)(1)

    Appellant argues insufficient evidence to convict Appellant of75 Pa.C.S.A. §3028(a)(I)

existed. The Court disagrees. When reviewing a sufficiency of the evidence claim, the evidence

and all reasonable inferences drawn therefrom must be reviewed in the light most favorable to

the Commonwealth, as the prevailing party. Commonwealth v. Teems, 74 A.3d 142, 144

(Pa.Super. 2013). The trial court is free to believe all, part, or none of the evidence presented. Id,

144-45. When attempting to prove general impairment under §3802(a)(I), the Commonwealth

may proffer numerous types of evidence, included but not limited to: "the offender's actions and

behavior, including manner of driving ... physical appearance, pmiicularly bloodshot eyes and

other physical signs of intoxication; [and] odor of alcohol. .. " Id at 145. Fmiher, the weight to be

assigned to these various types of evidence presents a question for the fact finder, who may rely

on his or her experience, common sense, andlor expeli testimony." Id. Regardless of the type of

evidence tendered by the Commonwealth, the focus of the inquiry under §3802(a)(I) should be

the ability or inability of the individual in question to drive safely due to the consumption of

alcohol. Id.

    In the instant case, Trooper Buchheit testified his attention was first attracted by Appellant's

failure to use a turn signal when entering the interstate. Trooper Buchheit then followed

Appellant and observed his speed fluctuate between 50 mph and 70 mph multiple times. When

Trooper Buchheit was able to get a consistent clock on Appellant's speed with his speedometer,

Appellant was traveling at 67 mph in a posted 55 mph zone. At tltis point, Trooper Buchheit

initiated a traffic stop. When Trooper Buchheit approached the vehicle, he testified he smelled a

strong odor of an alcoholic beverage coming from the interior. He also noticed Appellant's eyes
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were bloodshot and glassy. Because there was another individual in the vehicle, Trooper

Buchheit asked Appellant to exit the vehicle. Appellant complied, and once Appellant was

separated from the passenger and the vehicle itself, Trooper Buchheit could clearly smell the

odor of an alcoholic beverage on Appellant's breath. Trooper Buchheit asked Appellant ifhe

had been drinking recently and Appellant indicated he had not been, but stated someone had

poured alcohol on his jacket. When questioned as to where he was coming from, Appellant

stated he was coming from Stover's Tea Room, a bar establishment in Milesburg, Permsylvania.

At this point, Trooper Buchheit asked Appellant to submit to the standard field sobriety tests.

Appellant refused, giving various reasons. During the encounter, Trooper Buchheit attempted

twice to administer the HGN test. During the second attempt, Appellant began to sway slightly.

At this point, Trooper Buchheit testified he made the determination that Appellant was incapable

of safe driving and placed him in custody.

    Trooper Buchheit testified the indicators displayed by Appellant, that is, his failure to use an

appropriate tUI'll signal, his fluctuating speeds, his glassy and bloodshot eyes, the odor of alcohol

on his breath, and the swaying he demonstrated during the administration of the HGN test were

all indicative of Appellant's failure to operate a vehicle safely due to his consumption of alcohol.

Trooper Buchheit noted driving is a divided attention skill and often, when an individual is under

the influence, they are unable to divide their attention when driving. For example, an impaired

driver may be able to focus on keeping his or her vehicle in between the lines on the road, but

then may be unable to perform other tasks required while driving safely, such as keeping a

constant speed, using appropriate signals, watching the sides of the road, paying attention to

other vehicles, etc. Trooper Buchheit testified that failure to use appropriate signals and

fluctuations in speed are two such clues which can alert an officer that an individual operating a

vehicle may be impaired.

   This Comi was satisfied with Trooper Buchheit's testimony. Although Appellant told

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Trooper Buchheit that someone had spilled alcohol on his jacket, Trooper Buchheit testified he

could clearly smell the strong odor of an alcoholic beverage coming from Appellant's breath as

he spoke to him. The odor of the alcoholic beverage emanating from Appellant's breath, his

swaying during the administration of the HGN test, and his glassy, bloodshot eyes led Trooper

Buchheit and the Court to conclude that Appellant had consumed alcohol. Appellant's failure to

use appropriate signals and fluctuating speed combined with the above indicators led Trooper

Buchheit and this Court to conclude that Appellant was under the influence of alcohol to such a

degree that he was incapable of properly dividing his attention in order to safely operate his

vehicle.

       For the reasons above, the Court respectfully requests that its decision remain

undisturbed.

                                                                      p ,
                                                             BY THE COURT:.
                                                               ,?~,~O/~~f
DATE: January')~ 2014                                        Jonathan D. Grine, Judge




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