J-S09021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SUSAN RUTH KELLY                           :
                                               :
                       Appellant               :   No. 2275 EDA 2019

      Appeal from the Judgment of Sentence Entered December 14, 2018
      In the Court of Common Pleas of Carbon County Criminal Division at
                        No(s): CP-13-CR-0000116-2016


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                                   Filed May 5, 2020

        Susan Ruth Kelly appeals from the judgment of sentence, entered in the

Court of Common Pleas of Carbon County, following her convictions for driving

under the influence (DUI)—controlled substance1 and careless driving2 at a

non-jury trial. Upon careful review, we affirm.

        The Honorable Joseph J. Matika summarized the relevant facts and

procedural history of the case as follows:

        On April 12, 2015, at approximately 2:33 P.M., Officer Tyler Meek
        (hereinafter “[Officer] Meek”) was dispatched to the McDonald’s
        parking lot in Mahoning Township, Carbon County, Pennsylvania
        for a motor vehicle accident. [Officer Meek observed damage to


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(2).

2   75 Pa.C.S.A. § 3714(a).
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        a red Mini-Cooper driven by Kelly and another vehicle, and
        concluded Kelly’s vehicle struck the other vehicle.]

        [Officer Meek also noticed that Kelly] appeared confused and
        disoriented,4 had very glossy eyes and had trouble standing
        without holding onto her vehicle.5 [In determining whether to
        contact a Drug Recognition Expert (D.R.E.), Officer Meek initiated
        some field tests. Kelly nearly fell over several times during that
        testing. Upon completing his investigation, Officer Meek believed
        it was necessary to contact a D.R.E. and he transported Kelly to a
        local hospital to meet with one.]
           4On cross-examination, [Officer] Meek elaborated on Kelly’s
           confusion by stating that she [neither knew] what time it
           was nor what day it was.
           5At no time during the course of the investigation did Kelly
           ever express that she had a medical condition that caused
           her to have balance issues.

                                          ***

        Corporal Shawn Noonan (hereinafter “[Corporal] Noonan”) of the
        Pennsylvania State Police, a D.R.E., also testified at trial. After
        being qualified as such, he testified regarding the twelve[-]step
        process to determine if a person is capable of safely operating a
        motor vehicle while under the influence of a controlled substance
        and then testified as to how he initiated these twelve steps in this
        case.   [One of the steps he utilized involved three tests:
        Horizontal Gaze Nystagmus (HGN) test, Vertical Gaze Nystagmus
        (VGN) test, and lack of convergence test.]

        [Corporal] Noonan also testified that [as] part of his D.R.E. report,
        he interviews the person being administered the [exam]. After
        properly [M]irandizing[3] Kelly, he elicited the following
        information: 1) Kelly took a Xanax before leaving the house for
        tooth pain; 2) Kelly took Hydrocodone earlier in the morning that
        day; 3) that she struck the other vehicle from behind as she was
        unable to stop after [the other vehicle] had started and abruptly
        stopped; and 4) the date of the incident was Sunday and the
        [then-]present time was 1:00 P.M.7 [Corporal] Noonan also
        testified to various observations he made of Kelly which were part
____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

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      of the D.R.E. exam including: lethargy, reddening of conjunctiva,
      an impaired perception of time, general confusion, constricted
      pupils and the lack of reaction to a light stimuli. [Corporal]
      Noonan explained that each of these observations, based upon his
      training and experiences, can be conditions caused by the use of
      a central nervous system depressant such as Xanax or a narcotic
      analgesic such as Hydrocodone.
         7 The time of the interview of Kelly by [Corporal] Noonan
         was 3:00 P.M. and [the incident occurred on] a Monday, not
         a Sunday.

                                         ***

      Kelly also took the witness stand. [] On the date in question, she
      testified that around 6:00 A.M., she took a Xanax and a Vicodin.10
         10   Vicodin is the generic name for Hydrocodone.

                                         ***

      [At the conclusion of the trial,] this [c]ourt found Kelly guilty of
      the [charges against her]. [Subsequently], Kelly was sentenced
      on the D.U.I. charge to a period of six (6) months in the County
      Intermediate Punishment Program with sixteen (16) days in a
      Qualified Restrictive Intermediate Punishment Program (home
      electronic monitoring). Various conditions were also placed on
      this sentence. On the [c]areless [d]riving charge, Kelly was
      sentenced to a $25.00 fine and costs.

Trial Court Opinion, 06/02/19, at 1-7 (some footnotes omitted).

      Following sentencing, Kelly filed post-sentence motions, which were

denied. This timely appeal follows, in which Kelly raises the following claims

for our review:

      (1)     Whether the [t]rial [c]ourt erred by allowing a police officer,
              who[] was not offered as an expert witness, to testify to his
              opinion on whether [] Kelly was impaired by her prescription
              medications to the point where she could not drive safely?

      (2)     Whether the [t]rial [c]ourt erred by allowing testimony on
              any performance on the HGN, VGN, or lack of convergence
              field sobriety tests without evidence that these tests have
              gained general acceptance in the scientific community?

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Appellant’s Brief, at 4.

      Kelly first claims the trial court erred when it allowed Officer Meek to

“opine that she was impaired by her medications to the point where she could

not drive safely.” Appellant’s Brief, at 9. At trial, the Commonwealth offered

Officer Meek as a lay witness. During Officer Meek’s testimony, Kelly objected

to the following Commonwealth question on the grounds that it elicited an

expert opinion:

      Q. [BY MR. GREEK]: Okay, [a]nd based upon your education,
      your training and experience with suspected drivers being under
      the influence of a controlled substance and your observations of
      the Defendant at the time that you had her out of the vehicle, do
      you have an opinion whether she was under the influence of a
      controlled substance at the time you had contact with her?

      MR. MOTTOLA: I would object to an expert conclusion, Your
      Honor.

      MR. GREEK: I think I laid a foundation on how many times he has
      seen individuals that he suspected and how many arrests he
      made.

      THE COURT: Well, I believe that based on his training and
      experience, he does not need to be an expert to render such an
      opinion. As a police officer, he has that ability, or else he wouldn’t
      be making arrests. Overruled.

      Q. [BY MR. GREEK]: Do you have an opinion on whether she was
      under the influence of a controlled substance at the time that you
      had contact with her?

      A. Yes, I feel she was and she was incapable of safe driving due
      to that.

N.T. Trial, 8/14/18, at 13.

      Our standard of review for challenges to admissibility of evidence is well-

settled: “The admissibility of evidence is a matter for the discretion of the


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trial court and a ruling thereon will be reversed on appeal only upon a showing

that the trial court committed an abuse of discretion.” Commonwealth v.

Poplawski, 130 A.3d 697, 716 (Pa. 2015) (quoting Commonwealth v.

Sherwood, 982 A.2d 483, 495 (Pa. 2009)). “An abuse of discretion may not

be found merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Id. The admissibility of lay opinion testimony is governed by

Pennsylvania Rule of Evidence 701 (Opinion Testimony by Lay Witnesses).

      Rule 701 states:

      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.   Additionally, lay witnesses may testify to someone’s readily

observable physical condition or appearance that does not require medical

training. Commonwealth v. Gause, 164 A.3d 532, 538 (Pa. Super. 2017).

      At trial, Officer Meek testified that he personally observed Kelly and that

she appeared confused, had very glossy eyes, and had trouble standing

without holding onto her vehicle. He further testified that Kelly nearly fell over

several times when he attempted to administer standard field sobriety tests.



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The Commonwealth’s questioning of Officer Meek did not elicit his opinion of

whether Kelly was incapable of driving safely because she was under the

influence. Rather, the Commonwealth’s question simply inquired as to Officer

Meek’s opinion of whether Kelly was under the influence of a controlled

substance at the time he observed her. This Court has previously held that

such questioning is permissible.         See Commonwealth v. DiPanfilo, 993

A.2d 1262, 1267-69 (Pa. Super. 2010) (holding lay witnesses may testify as

to their opinion that individual was under influence of cocaine and opiates

because their intoxicating effects are widely and commonly understood)3;


____________________________________________


3Kelly testified that she ingested both prescription Xanax and Vicodin in the
hours prior to her vehicle collision.       Kelly relies on our opinion in
Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa. Super. 2010) to support
her claim that:

       The intoxicating effects of cocaine and opiates, like the
       intoxicating effects of alcohol, are more widely and commonly
       understood such that an ordinary person could conclude that a
       person was under the influence of these substances [whereas] the
       side-effects of prescription drugs may not be widely or publicly
       known, particularly when they are used to treat an underlying
       medical condition.

See Appellant’s Brief, at 12 (emphasis added).

In DiPanfilo, we relied on our now-reversed decision in Commonwealth v.
Griffith, 985 A.2d 230 (Pa. Super. 2009), wherein we drew a distinction
between the well-known intoxicating effects of cocaine, opiates, and alcohol,
and the effects of prescription drugs, in deciding whether expert witnesses
were required, as a matter of sufficiency of the evidence, to sustain the
appellant’s DUI conviction. DiPanfilo, 993 A.2d at 1267. Our holding that
experts were required for sufficiency purposes was overruled just one year



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Commonwealth v. Neiswonger, 488 A.2d 68, 69 (Pa. Super. 1985)

(holding testimony by non-experts on whether person is intoxicated is

admissible).

       Here, Officer Meek testified from his own observations and perceptions

of Kelly’s appearance and actions, informed by his training and experience.

That testimony was helpful in understanding Officer Meek’s testimony and in

determining a fact in issue, and it was not based upon any scientific, technical,

or other specialized knowledge. See Gause, supra; Pa.R.E. 701. Therefore,

the trial court did not abuse its discretion by admitting Officer Meek’s lay

opinion testimony pursuant to Pa.R.E. 701. See Poplawski, supra.

       Next, Kelly challenges the admission of Corporal Noonan’s testimony.

Corporal Noonan testified as to his observations while administering the HGN,

the VGN, and the lack of convergence tests on Kelly. At trial, Kelly objected

to any testimony relating to her performance on those tests. The trial court

____________________________________________


later by our Supreme Court in Commonwealth v. Griffith, 32 A.3d 1231 (Pa.
2011). In reversing, our Supreme Court stated:

       We do not believe that the Superior Court’s division of drugs into
       prescription versus non-prescription categories is warranted or
       helpful in the interpretation or application of subsection
       3802(d)(2) or in the determination of whether an expert witness
       should be called. Pursuant to our general standard, a need for
       expert testimony arises when the jury is confronted with factual
       issues whose resolution requires knowledge beyond the ken of the
       ordinary layman.

Id. at 1239 (internal quotations and citations omitted). We do not find Kelly’s
distinction between prescription and non-prescription drugs useful or
persuasive in the instant case.

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overruled Kelly’s objection, but prevented Corporal Noonan from testifying as

to his ultimate conclusions on those tests, thus limiting his testimony to his

observations and perceptions during his administration of the tests. Corporal

Noonan’s relevant testimony proceeded as follows:

      THE COURT: I am going to allow Corporal Noonan to testify
      regarding what he observed, but not his ultimate conclusions on
      the HGN, VGN or lack of convergence.

                                         ***

      Q. [BY MR. GREEK]: Did you have the opportunity as part four of
      your eye examination to observe Susan Kelly's eyes?

      A. I did.

      Q. And can you comment on what you observed with regard to
      her and her eyes and her ability to follow a stimulus while you
      were performing the evaluation?

      A. Yes, I am trying to say this without saying other stuff. A
      precursor for later tests is to ensure that a person is able to follow
      my finger as I slowly move it back and forth, side to side. In this
      case, my finger was the stimulus. I raised it in front of her face
      and asked her if she could follow my finger as I moved it back and
      forth, from side to side. She was unable to follow it. Her eyes
      were jerky and they quickly returned to the center position.

N.T. Trial, 8/14/18, at 38-39.

      Kelly relies on our decisions in Commonwealth v. Apollo, 603 A.2d

1023 (Pa. Super. 1992) and Commonwealth v. Stringer, 678 A.2d 1200

(Pa. Super. 1996), to support her claim that “without scientific foundation, the

Commonwealth cannot present any evidence on a defendant’s performance

on the HGN.” Appellant’s Brief, at 20. Kelly further reasons that because the

VGN and lack of convergence tests are similarly scientific in nature to the HGN,


                                      -8-
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no evidence on any of these three tests is admissible at trial, and consequently

she is entitled to a new trial. Id. at 20-23. We find that this evidence was

admitted in error, but that it was harmless error.

      In Apollo, we held it was not an abuse of discretion for the trial court

to exclude testimony relating to the results of an HGN test because the expert

testimony did not “establish general acceptance in the scientific community of

the HGN test.” Apollo, 603 A.2d at 1027-28.          In Stringer, we stated,

“Pennsylvania law requires that an adequate foundation be set forth

establishing that HGN testing is generally accepted in the scientific

community, including the medical science field of ophthalmology.” Stringer,

678 A.2d at 1203.

      Here, the Commonwealth failed to establish any foundation setting forth

whether the HGN, VGN, or lack of convergence tests are generally accepted

in the scientific community. Therefore, Corporal Noonan’s testimony relating

to the results of Kelly’s performance on those tests was admitted in error.

See Stringer, supra.

      On the Stringer facts—where additional evidence of guilt beyond the

HGN was lacking—we held that the necessary foundation was missing and that

there was reversible error where the trial court admitted the HGN test results

through the expert’s testimony. Id.

      In Stringer, in holding that the admission was not harmless error, we

stated:




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      [U]nlike [Commonwealth v. Miller, 532 A.2d 1186 (Pa. Super.
      1987)], the trial court’s error was not harmless since no other field
      sobriety tests were administered, and appellant refused to submit
      to a blood alcohol content test. Accordingly, we reverse the
      judgment of sentence and remand this case for a new trial
      consistent with this opinion.

Id. (emphasis added).

      By contrast, in Miller we found there was harmless error when an expert

was permitted to testify regarding the results of an HGN test. Miller, 532

A.2d at 1190. In Miller, we stated:

      Even though the admission into evidence of the results of the HGN
      test was error, we believe that the error was harmless since there
      was sufficient other evidence to sustain the jury's verdict that
      appellant was guilty of driving under the influence of alcohol.
      [Both Officer Duck and Officer Bruno testified that appellant had
      bloodshot eyes, smelled of alcohol, had slurred speech, was
      boisterous and agitated, and drove erratically.] Officer Bruno also
      testified that appellant was unable to successfully perform three
      field sobriety tests [and] that appellant was able to successfully
      complete the recitation-of-alphabet test only after two attempts.
      In light of the testimonial evidence of appellant’s intoxication, the
      admission into evidence of the results of the HGN test was
      harmless error. We find that the arresting officers’ observations
      of appellant, as well as appellant’s performance on the other field
      sobriety tests, established a sufficiently independent basis for the
      jury’s verdict that appellant was guilty of driving under the
      influence of alcohol.

Miller, 532 A.2d at 1190 (quotations and citations omitted; emphasis added);

see also Commonwealth v. Boerner, 407 A.2d 883 (Pa. Super. 1979)

(holding error in admitting breathalyzer evidence due to improper expert

certification harmless in light of overwhelming testimonial evidence of

appellant’s intoxication.)




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      We find that the instant facts are on all fours with Miller, and are

distinguishable from those in Stringer. Here, Officer Meek testified that he

encountered Kelly’s vehicle and, from his observations, determined that Kelly

collided into the other vehicle. Officer Meek also testified that Kelly did not

know the date, time, or day of the week and that Kelly appeared confused,

had very glossy eyes, and that she had trouble standing without holding onto

her vehicle. Officer Meek further testified that Kelly nearly fell over several

times when he attempted to administer standard field sobriety tests.        In

addition, Corporal Noonan testified that Kelly had a significant inability to

estimate time and that he observed Kelly’s body swaying forward to backward

about an inch.   Corporal Noonan further testified that Kelly was unable to

successfully perform the finger-to-nose test on the first try, and that she did

not tilt her head back as far as requested, but was able to perform that test

on five subsequent attempts. In light of the substantial testimonial evidence

of Kelly’s impairment, the admission into evidence of the results of the HGN

test was harmless error. We find that the observations by Officer Meek and

Corporal Noonan of the scene of the accident, of Kelly, and of Kelly’s

performance on the other field sobriety tests, established a sufficient

independent basis for the verdict. See Miller, supra.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/05/2020




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