J-A31005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ARTEE LINARD MAURICE GAUSE

                            Appellant                  No. 151 MDA 2015


           Appeal from the Judgment of Sentence December 2, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0008850-2013


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                                  FILED MAY 05, 2016

        Appellant, Artee Linard Maurice Gause, appeals from the judgment of

sentence entered December 2, 2014, in the Court of Common Pleas of York

County, following his convictions of Driving Under the Influence (“DUI”) –

General Impairment, DUI – Controlled Substance, and Period for Requiring

Lighted Lamps.1 After careful review, we affirm.

        The trial court summarized the facts of this case as follows.

               [O]n September 25, 2013, at around 1:20 in the morning
        (Notes of Testimony, 10/9/14, at 64), Officer [Erika] Eiker
        encountered a vehicle lacking illuminated taillights. ([Id.] at 65-
        66). During the ensuing stop, the officer asked the Appellant for
        his license and registration and questioned where Appellant was
        coming from. ([Id.] at 67.) The Appellant provided the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1); 3802(d)(2); and 4302(a)(1), respectively.
J-A31005-15


      requested items without any fumbling ([id.] at 87) and informed
      the officer that he was traveling from a friend’s home[.] ([Id.] at
      67). Officer Eiker smelled alcohol and the Appellant stated that
      he had consumed one 12 ounce can of beer. ([Id.] at 67.) The
      Appellant then completed field sobriety tests with varying levels
      of success. ([Id.] at 67-73.) On cross examination, defense
      counsel elicited from Officer Eiker that during the encounter she
      neither smelled nor saw marijuana. ([Id.] at 88.) Moreover, the
      officer testified that Appellant’s speech was not slurred and that,
      outside of the field sobriety tests, Appellant’s balance and
      coordination were fine. ([Id.] at 90). Officer Eiker went on to
      testify that she gives the Romberg Test when she suspects
      marijuana usage because she associates eyelid tremors, as in
      this case, with marijuana usage. ([Id.] at 103.) … [T]hough the
      Appellant submitted himself to a drug recognition evaluation, he
      refused chemical testing. ([Id.] at 73-75.)

Trial Court Opinion, 4/16/15 at 5-6.

      Following a jury trial, Appellant was convicted of the aforementioned

charges. The trial court merged the DUI convictions for sentencing purposes

and sentenced Appellant to a term of 5 years of Intermediate Punishment,

including 45 days to be served in county prison and 90 days of house arrest,

and imposed a $1,500 fine, plus costs of prosecution. On the summary

offense of Period for Requiring Lighted Lamps, the court imposed a $25 fine,

plus the costs of prosecution. Appellant filed post-sentence motions, which

the trial court denied. This timely appeal followed.

      Appellant raises the following issues for our review.

      1. Whether Officer Eiker’s opinion testimony that body tremors
         and eyelid tremors are indicative of marijuana impairment
         should have been excluded?

      2. Whether Officer Eiker should have been denied the ability to
         testify as to her opinion that body tremors and eyelid tremors
         are indicative of marijuana impairment when the trial court



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         ruled prior to the beginning of trial that the Commonwealth’s
         witnesses could not render an opinion?

      3. Whether Officer Eiker’s and Officer George’s testimony
         regarding eyelid and body tremors should have been excluded
         even if they did not render an opinion because the testimony
         was irrelevant without their opinion?

      4. Whether there was insufficient evidence to support the
         [j]ury’s finding of guilt on count 1, DUI, General Impairment,
         when Officer George testified that he had excluded alcohol as
         a factor of impairment?

      5. Whether the verdict as to count 1 is against the weight of the
         evidence when Officer George had specifically excluded
         alcohol impairment?

      6. Whether there was insufficient evidence to support the
         [j]ury’s finding of guilt on count 2, DUI, Controlled Substance,
         because the Commonwealth failed to present sufficient
         evidence that Mr. Gause was incapable of safely operating an
         automobile because of drug consumption?

      7. Whether the [j]ury’s verdict as to count 2 is against the
         weight of the evidence when there was no testimony as to the
         drug(s) that Mr. Gause was supposedly impaired by?

Appellant’s Brief at 6-7 (renumbered for ease of disposition).

      Appellant first argues that the trial court committed reversible error

when it permitted Officer Eiker to offer her opinion that body and eyelid

tremors are indicative of marijuana impairment. See Appellant’s Brief at 15-

22. Prior to trial, Appellant filed a motion in limine to preclude Officer Eiker’s

opinion testimony regarding factors indicative of marijuana impairment. The

trial court granted Appellant’s motion to exclude such opinion testimony.

During trial, however, the trial court sua sponte reversed its earlier decision

and, over defense objection, permitted Officer Eiker to attribute Appellant’s

body and eyelid tremors to marijuana impairment. See N.T., Trial, 10/9/14


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at 76-77; 103. Appellant argues that the opinion offered by Officer Eiker

regarding his alleged marijuana impairment was beyond the purview of

permissible lay witness opinion.2 We disagree.

       “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa. Super. 2012) (internal citations omitted).

       Pursuant to Pennsylvania Rule of Evidence 701, Opinion Testimony

by Lay Witness, lay witness 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 lay person may testify to distinct facts observed by him

concerning the apparent physical condition or appearance of another.”

Commonwealth v. Counterman, 719 A.2d 284, 301 (Pa. 1998) (citation

omitted).



____________________________________________


2
  We note that Appellant only contests the admissibility of Officer Eiker’s
opinion testimony as it relates to marijuana impairment. Therefore, we
restrict our analysis of the admissibility of the testimony only as it pertains
to marijuana impairment, and not alcohol impairment.



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      This Court has long recognized that where the proper foundation is

laid, lay opinion as to whether a person is under the influence of narcotics is

admissible. See Commonwealth v. Yedinak, 676 A.2d 1217, 1221 (Pa.

Super. 1996) (“Although this Court has never addressed whether lay opinion

testimony is admissible to prove drug-induced intoxication, 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.”). Opinion testimony of

drug-induced intoxication will not be distinguished from opinion testimony of

alcohol-induced intoxication where the witness is personally familiar with the

effects of narcotics. See Commonwealth v. Davies, 811 A.2d 600, 603

(Pa. Super. 2002).

      Here, Officer Eiker was a four-year veteran of the York County

Regional Police Force and had received training in DUI testing and

impairment, as well as standardized field sobriety training. See N.T., Trial,

10/9/14 at 63. In her four years of experience, she has conducted over 200

DUI arrests. See id. at 64. Officer Eiker further testified that she was taught

during her DUI training that eyelid and body tremors are possible indicators

of marijuana usage. See id. at 105. Based on this training and experience,

Officer Eiker opined that the Appellant’s eyelid and body tremors was

indicative of marijuana ingestion. We find that because Officer Eiker’s

opinion was rationally based on her observations and perceptions at the




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scene and informed by her training and prior DUI arrests, the trial court did

not err in admitting the officer’s opinion testimony.

      Appellant argues, and the trial court agrees, that a line of cases

suggests that expert opinion is needed “in marijuana cases under subsection

3802(d)(2).” Appellant’s Brief at 18. Appellant primarily relies upon this

Court’s decisions in Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa.

Super. 2010), and Commonwealth v. Etchison, 916 A.2d 1169 (Pa.

Super. 2007), aff’d, 943 A.2d 262 (Pa. 2008). In DiPanfilo, a panel of this

Court relied upon this Court’s prior decision in Etchison for the proposition

that there is “a need for expert testimony in the area of marijuana.” 993

A.2d at 1267. However, the panel clarified that expert testimony is not

required in every DUI-drug case.; rather, prosecutors are permitted to

introduce any form of proof or relevant evidence of a defendant’s

impairment. See id.

      Although Appellant implies otherwise, we discern nothing in those

decisions that would remove the subject of marijuana use and the effects

thereof from the ken of properly founded lay witness testimony or that

would otherwise     undermine     the   validity of Officer   Eiker’s testimony

regarding her knowledge of factors indicative of marijuana impairment.

Therefore, this argument fails.




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       Appellant next contends that the trial court erred in sua sponte

reversing its pretrial ruling on the admissibility of Officer Eiker’s opinion

testimony.3 See Appellant’s Brief at 23-27. As discussed above, the trial

court’s decision to admit Officer Eiker’s opinion testimony at trial was

correct. Ergo, the pre-trial ruling prohibiting the testimony was invalid and

the trial court did not err by correcting its pre-trial ruling at trial.

       Appellant alternatively argues that the testimony regarding his eyelid

and body tremors should have been excluded without the opinion testimony,

as it was irrelevant without the opinion testimony. See Appellant’s Brief at

27-31. As we have already determined that the admission of Officer Eiker’s

opinion testimony was proper, her observations of Appellant’s eyelid and

body tremors were undoubtedly relevant. Therefore, this claim also fails.

       Appellant next challenges the sufficiency and weight of the evidence in

support of his conviction of DUI – general impairment. We review a

challenge to the sufficiency of the evidence as follows.

       The standard we apply when 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 circumstances
____________________________________________


3
  In support of his argument, Appellant erroneously cites case law pertaining
to the trial court’s ability to reverse its pre-trial suppression motion. Here,
the trial court’s pre-trial ruling precluded the opinion testimony; it did not
suppress it.



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      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. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused's guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      Conversely, a challenge to the weight of the evidence “concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal   that   a   guilty   verdict   shocks   one’s   sense   of   justice.”

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citation

omitted), appeal denied, 99 A.3d 925 (Pa. 2014).

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:




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        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Because the trial judge has had the opportunity to hear
        and see the evidence presented, an appellate court will
        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court’s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court’s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        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.

Id. at 1015-1016 (citation omitted).

     Appellant was convicted of DUI – general impairment, pursuant to 75

Pa.C.S.A. § 3802(a)(1), which provides as follows.

     (a) General impairment.—

     (1) 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.

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75 Pa.C.S. § 3802(a)(1). “[S]ubsection 3802(a)(1) is an ‘at the time of

driving’ offense, requiring that the Commonwealth 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).

       Appellant concedes that he was driving, operating or in actual physical

control of the movement of a vehicle. He contends, however, that the

evidence was insufficient to establish that he was incapable of safely driving

due to the consumption of alcohol.4 Appellant’s Brief at 35-38. In Segida,

our Supreme Court described the types of evidence that the Commonwealth

may offer to prove this element:

       Section 3802(a)(1), like its predecessor [statute], is a general
       provision and provides no specific restraint upon the
       Commonwealth in the manner in which it may prove that an
       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. Blood
       alcohol level may be added to this list, although it is not
____________________________________________


4
  Notably, Appellant does not contend that the police did not have probable
cause to arrest him under suspicion of DUI – general impairment, only that
the conviction was against the sufficiency and weight of the evidence
presented at trial.



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      necessary and the two[-]hour time limit for measuring blood
      alcohol level does not apply. Blood alcohol level is admissible in
      a subsection 3801(a)(1) case only insofar as it is relevant to and
      probative of the accused’s ability to drive safely at the time he or
      she was driving. 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.

985 A.2d at 879.

      In his brief, Appellant argues that he “was able to react prudently to

changing conditions, namely, he pulled over when the officer activated her

emergency lights and he did so appropriately.” Appellant’s Brief at 37.

Appellant further insists that he only exhibited indicators of impairment

during the ‘walk and turn’ field sobriety test, and not during the ‘one leg

stand’ test. Id. Despite Appellant’s attempt to portray the evidence in a light

favorable to his defense, we note that our relevant inquiry in conducting a

sufficiency analysis requires that we view the evidence in the light most

favorable to the verdict winner—the Commonwealth.

      When viewed in the proper light, we find that the evidence presented

at trial was sufficient to enable the factfinder to conclude that Appellant was

incapable of safely driving his vehicle due to the consumption of alcohol.

The totality of the circumstances and points of proof the Commonwealth

offered at trial establish that Officer Eiker smelled the odor of alcohol on

Appellant’s breath during the traffic stop. See N.T., Jury Trial, 10/9/14 at



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67. Based upon the officer’s observation, she asked Appellant to step out of

the vehicle in order to perform field sobriety tests. See id. Officer Eiker

testified that during the walk and turn test, she is trained to look for a total

of eight “clues” that indicate intoxication. Id. at 70. During the test, Officer

Eiker observed that Appellant could not keep his balance on two separate

occasions, failed to take the appropriate number of steps as instructed, did

not execute a proper turn, and failed to walk heel to toe as instructed. See

id. at 70-71. Officer Eiker testified that she observed five “clues” during

Appellant’s performance of the walk and turn test, and that two clues are

indicative of impairment. Id. at 71.

      Officer Eiker next instructed Appellant to perform the one-leg stand

test. During this test, Officer Eiker observed that Appellant put his foot down

to regain his balance when he counted to seven, and that “his whole body

was shaking considerably.” Id. at 72. Officer Eiker explained that her

observations during this test amounted to one clue, and that two clues

indicated impairment. See id. Lastly, Officer Eiker instructed Appellant to

perform the Romberg Balance test, in which the driver estimates the

passage of 30 seconds in his head, with his feet together and eyes closed.

Id. at 73. Officer Eiker testified that she noted “very, very strong presence

of body tremors and eyelid tremors” during the test, and that when

Appellant indicated 30 seconds had passed, only 12 seconds had actually

elapsed. Id.




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       For the purposes of our sufficiency analysis, it is irrelevant that

Appellant arguably “passed” the one-leg stand test. It is uncontested that

Officer Eiker’s observations during the failed walk and turn test led her to

believe that Appellant was intoxicated. “Evidence that the driver was not in

control of himself, such as failing to pass a field sobriety test, may establish

that the driver was under the influence of alcohol to a degree which

rendered him incapable of safe driving, notwithstanding the absence of

evidence of erratic or unsafe driving.” Commonwealth v. Smith, 831 A.2d

636, 638 (Pa. Super. 2003) (citation omitted). See also Commonwealth v.

Salter, 121 A.3d 987, 995 (Pa. Super. 2015) (“Erratic driving is not a super-

factor, much less one determinative of DUI.”). Despite the lack of other

positive indicators of intoxication such as slurred speech or erratic driving,

we find that Appellant’s failure of the field sobriety test, combined with the

odor of alcohol on Appellant’s breath, was sufficient to establish he was

incapable of safe driving due to the consumption of alcohol. Thus, the

evidence was more than sufficient to support Appellant’s conviction of

subsection 3802(a)(1).5

____________________________________________


5
   Appellant’s focus on Officer Scott George’s testimony that a drug
recognition evaluation is generally not conducted on a person who is
impaired by alcohol, see Appellant’s Brief at 37, is a red herring. Regardless
of the officer’s opinion, the uncontested facts reveal that Appellant smelled
of alcohol and failed the field sobriety tests. This was sufficient to establish a
finding that he was incapable of safe driving due to the consumption of
alcohol. See Smith.



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      We   further   find   that   Appellant’s   conviction   of   DUI   –   general

impairment was not against the weight of the evidence. In rejecting

Appellant’s weight argument, the trial court noted that

      we cannot say that the verdict was so contrary to the evidence
      as to shock our sense of justice. It seems clear to [this court]
      that the jury simply found the evidence tending towards
      conviction to be weightier than the evidence militating against
      conviction.

Trial Court Opinion, 4/16/15 at 24.

      The jury clearly resolved any inconsistencies among the testimony as

it saw fit and reached a verdict. See Orie, 88 A.3d at 1017 (“It is well

settled that the jury is free to believe all, part or none of the evidence and

must determine the credibility of the witnesses.”). The trial judge, after

observing the proceedings, determined that the jury’s verdict was not

against the weight of the evidence. After reviewing the record and the

evidence as detailed earlier, we find no misapplication of law or abuse of

discretion in that decision. Accordingly, we find no abuse of discretion in the

trial court’s denial of Appellant’s weight of the evidence claim.

      We next examine the sufficiency of the evidence to support Appellant’s

conviction of DUI – controlled substance under 18 Pa.C.S.A. 3802(d)(2).

Subsection 3802(d) provides as follows.

      (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



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      safely drive, operate or be in actual physical control of the
      movement of the vehicle.

18 Pa.C.S. 3802(d)(2).

      We have already established that Appellant drove his vehicle when he

was incapable of safely driving. Therefore, we must now determine whether

the evidence was sufficient to establish that Appellant’s impaired ability drive

safely was the result of the influence of a drug – here, marijuana. “Section

3802(d)(2) does not require that any amount or specific quantity of the drug

be   proven   in   order    to    successfully    prosecute   under   that   section.”

Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008).

The Commonwealth must present “evidence to support a conclusion that

Appellant was under the influence of a drug or combination of drugs at the

time he was stopped, such that his ability to drive was impaired.” Etchison,

916 A.2d at 1172.

      As noted, Appellant refused to submit to a chemical test of his blood.

However, Appellant agreed to participate in a drug recognition evaluation

and was transported to the York County Courthouse for that purpose. Officer

Scott George, a drug recognition evaluator with 24 years of experience,

conducted the drug recognition evaluation. Officer George testified that he

has completed numerous training courses including standardized field

sobriety school, Data Master breath school and has received certification in

the area of drug recognition and classification by the International

Association   of   Chiefs    of    Police   and    the   National   Highway    Safety

Administration. See N.T., Trial, 10/9/14 at 109.

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       Prior to conducting the evaluation, Officer George observed that

Appellant was shaking in his chair and that his eyes were watery and glassy.

Id. at 113-115. Officer George instructed Appellant to perform the Romberg

Balance Test, during which Appellant exhibited very distinct body tremors

and sustained eyelid tremors. See id. at 116. Appellant estimated the

passage of 30 seconds in 19 seconds. See id. at 117. Appellant again

exhibited five clues of impairment during the walk and turn test. See id. at

117-118. During the one leg stand test, Appellant had difficulty maintaining

his balance and exhibited body tremors. See id. at 118.6 During a finger to

nose test, Appellant missed his nose at least once, and, contrary to the

instructions, three times touched his nose with the side of his finger rather

than the tip of his finger. See id. at 119-120. Based upon Officer George’s

observations during the entirety of the evaluation, he concluded that

Appellant “was impaired by both a drug and the alcohol that he had in his

system” such that his ability to drive was compromised. See id. at 120.

       We find that the totality of the circumstances presented sufficient

evidence to establish that Appellant was under the influence of marijuana

such that his ability to drive a vehicle was impaired. Officer George opined in

light of his extensive experience and training in the field of drug recognition


____________________________________________


6
  A test on the second leg was discontinued after seven seconds, when
Appellant informed Officer George that he had sustained an injury to that
leg. See id.



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and classification that Appellant’s extreme eyelid and body tremors and his

glassy and watery eyes were indicative of marijuana usage, and the failed

field sobriety tests indicated an impaired ability to drive. Viewed in the light

most favorable to the Commonwealth, we are satisfied that this evidence as

sufficient to support Appellant’s conviction of subsection 3802(d)(2) beyond

a reasonable doubt.        See Slocum, 86 A.3d at 275 (“The Commonwealth

may sustain its burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence.”).7

       Lastly, we reject Appellant’s claim that his conviction of subsection

3802(d)(2) was contrary to the weight of the evidence. The trial court, in

rejecting Appellant’s weight claim, reasoned as follows.

       The jury clearly found the Commonwealth’s evidence to be
       credible and we cannot say that their verdict was so contrary to
       the evidence as to shock our sense of justice. The fatal flaw of
       almost any weight of the evidence challenge is that the question
       is not whether there is any evidence that contradicts the
       Commonwealth’s narrative; but, rather, whether the evidence
       that does indicate a reality different from the one [the]
       Commonwealth has presented is of such weight that the jury
       must have gotten it wrong. The Appellant may not agree with
       the jury’s findings, but we do not feel the verdict was inapposite
       to the evidence.



____________________________________________


7
  Although Officer George testified that he observed on Appellant a “white
powdery substance … caked on the outside of both nostrils,” he did not offer
an opinion identifying the substance or conduct further testing thereon.
N.T., Trial, 10/9/14 at 120. Therefore, this testimony did not factor into our
sufficiency analysis.



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Trial Court Opinion, 4/16/15 at 23. Based on our review of the foregoing

evidence, we find no abuse of the trial court’s discretion in denying

Appellant’s weight of the evidence claim. Appellant’s challenge does not

merit relief.

      Judgment of sentence affirmed.

      Judge Platt joins in the memorandum.

      Judge Lazarus files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2016




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