J-A11023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CAMERON CHRISTOPHER LANTZY                 :
                                               :
                       Appellant               :   No. 1568 MDA 2019

       Appeal from the Judgment of Sentence Entered September 5, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0006918-2018


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 26, 2020

        Cameron Christopher Lantzy appeals from the judgment of sentence

entered following his conviction for driving under the influence of a controlled

substance (“DUI”) and driving without rear lights.1 Lantzy challenges the

sufficiency of the evidence and contends the trial court erred in denying his

motion to preclude certain testimony. We affirm.

        On September 13, 2018, while on patrol, Pennsylvania State Trooper

Ryan Wildermuth pulled over Lantzy’s vehicle because it had an inoperable

third brake light. After speaking with Lantzy and having him perform several

field sobriety tests, Trooper Wildermuth arrested Lantzy for DUI. Trooper

Wildermuth obtained a warrant to test Lantzy’s blood, but after four attempts

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   See 75 Pa.C.S.A. §§ 3802(d)(2) and 4303(b).
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to draw blood failed, Trooper Wildermuth abandoned the effort. The

Commonwealth charged Lantzy with the above offenses.

      Lantzy filed a Motion in Limine seeking to exclude some of Trooper

Wildermuth’s testimony regarding his observations of Lantzy’s condition

before the arrest. The court granted the Motion as to any testimony of eyelid

tremors, but held the remainder of the Motion in abeyance until the court

heard testimony regarding Trooper Wildermuth’s training. N.T., 8/29/19, at 4.

      At the hearing, Trooper Wildermuth testified that he had eight years of

experience in DUI investigations and drug enforcement, had personally

conducted roughly 250 DUI investigations and arrests, and had assisted in

over 300 DUI arrests. Id. at 6. In addition to standard field sobriety training,

Trooper Wildermuth had participated in Advanced Roadside Impaired Driving

Enforcement (“ARIDE”) training. Id. At ARIDE, Trooper Wildermuth learned

about various substances that cause impairment, including marijuana/THC,

and the signs of impairment caused by each substance. Id. at 7.

      Trooper Wildermuth testified that he had pulled Lantzy over due to a

broken taillight, and had not used a radar instrument to determine whether

Lantzy was speeding before he pulled him over. Id. at 8, 16. Trooper

Wildermuth also had not followed Lantzy’s car long enough to determine if

Lantzy was swerving, and did not observe Lantzy driving erratically before he

pulled him over. Id. at 16-17.

      However, Trooper Wildermuth testified that once he began talking to

Lantzy, he observed that Lantzy had “glassy bloodshot eyes. They were heavy

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like he was tired.” Id. at 9. Trooper Wildermuth detected a strong odor of

fresh marijuana emanating from the vehicle, and, on the floor mat,

“observe[d] what I recognized through training and experience as marijuana

crumbs, essentially just little pieces of buds.” Id.

      Trooper Wildermuth testified that Lantzy’s passenger told him he was in

possession of marijuana and paraphernalia, and Trooper Wildermuth directed

Lantzy to get out of the vehicle. Id. Lantzy told Trooper Wildermuth that

“about an hour prior . . . he shared a blunt with friends.” Id. at 10. Trooper

Wildermuth could smell the odor of burnt marijuana on Lantzy’s breath. Id.

      Lantzy consented to take field sobriety tests (“FST’s”). Id. Trooper

Wildermuth first had Lantzy perform a “nine step walk and turn” test. Id.

During the test, Trooper Wildermuth observed six signs indicating that

Lantzy’s judgment was impaired: (1) Lantzy “start[ed] too early,” (2) he “lost

balance while holding the start position,” (3 & 4) he “stepped off the line . . .

twice,” (5) he “turned improperly during the second nine steps,” and (6) “he

took ten steps” instead of nine. Id. at 11. Trooper Wildermuth next

administered the “one-leg stand” test”, and observed Lantzy “after picking his

foot up to start[,] put his foot down right away,” before successfully

completing the test. Id. at 11-13. Trooper Wildermuth then asked Lantzy to

perform a “Romberg balance test,” during which Lantzy was to estimate the

passage of 30 seconds. Id. at 13. Trooper Wildermuth observed Lantzy

swaying “an inch or two” during this test. Id. at 13, 24.




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      Trooper Wildermuth also asked Lantzy to stick out his tongue, and

observed “large raised bumps and greenish discoloring” on the rear of his

tongue. Id. at 14. He further noticed “reddening of the conjunctiva which is

the lower eyelid,” and “a lack of smooth pursuit in both eyes.” Id. Trooper

Wildermuth compared the latter condition to “a kid playing with polar opposite

magnets. When the eyes come in, they reject.” Id. Trooper Wildermuth

attributed these effects to smoking marijuana. Id. Trooper Wildermuth

testified that he would not have been comfortable letting Lantzy drive home,

and arrested him for DUI. Id.

      Once the parties finished examining Trooper Wildermuth, Lantzy’s

counsel renewed his objection to the testimony “regarding the green tongue,

the eye tremors, the conjunctivitis test.” Id. at 15. The court overruled the

objection, stating, “I think he can testify regarding the observations. He can’t

tell me necessarily what it all means, some of it he can. But certainly he can

testify as to the observations.” Id. at 15-16. Lantzy’s attorney responded,

“That is true.” Id. at 16.

      The court announced that Trooper Wildermuth’s hearing testimony

would be incorporated into trial, which would proceed immediately. The

Commonwealth introduced video footage from the dashboard camera of

Trooper Wildermuth’s vehicle, and rested.

      Before   announcing    the   verdict,   the   court   recounted   Trooper

Wildermuth’s testimony, and stated it “also had the opportunity to observe

the dash cam video. Certainly the nine step walk and turn test showed a

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number of signs of impairment.” Id. at 33. The court convicted Lantzy on both

counts, and sentenced him to serve six months’ intermediate punishment and

pay a fine. The court also gave Lantzy notice that the Pennsylvania

Department of Transportation would be suspending his driving privileges.

Lantzy appealed.

       The issues Lantzy raises are as follows:

       [1.] Did the trial court err in not granting [Lantzy’s] motion in
       limine seeking to omit from evidence the Trooper’s lay opinion
       testimony as to the degree of impaired driving in which he
       believed [Lantzy] was under, as well as, omitting from evidence
       the Trooper’s observations of the “green tongue,” [and]
       “horizontal gaze nystagmus test,” . . . as irrelevant evidence?

       [2.] Did the trial court err in finding sufficient evidence to establish
       a violation of Section 3802(d)(2) of the Vehicle Code in the
       absence of expert testimony as to causation? . . .

Lantzy’s Br. at 26, 34 (reordered).2

                                 I. Motion in Limine

       Lantzy contends that the court erred in denying his Motion in Limine.

First, Lantzy argues the court should have precluded Trooper Wildermuth’s

testimony regarding Lantzy’s green tongue and the results of the horizontal

gaze nystagmus (“HGN”) test. Lantzy argues the Commonwealth did not

present this evidence as expert opinion, and these methods are not commonly

known or understood attributes of using marijuana. Lantzy also claims there



____________________________________________


2Lantzy raised additional issues in the Questions Presented section of his brief.
We address only those issues for which Lantzy provided argument.

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was no evidence that these conditions indicated any specific degree of

marijuana impairment.

      Next, Lantzy argues that the court should have excluded Trooper

Wldermuth’s lay opinion as to Lantzy’s impairment, because Trooper

Wildermuth was not admitted as an expert, and had no scientific basis for his

opinion. Lantzy argues that although he had admitted to smoking marijuana

an hour before the stop, and Trooper Wildermuth smelled burnt marijuana

emanating from Lantzy’s breath, these would not “inform the Trooper’s

opinion regarding the specific degree of impairment.” Lantzy’s Br. at 39.

Lantzy also claims the court should have excluded all of the above evidence

as irrelevant.

      We review a decision regarding the admission of evidence for an abuse

of the trial court’s discretion. Commonwealth v. Gause, 164 A.3d 532, 537

(Pa.Super. 2017) (en banc).

      Lantzy waived his challenge to the ruling on his Motion in Limine by

agreeing with the trial court when it announced its ruling. When the court

stated that the trooper could testify about his observations, but could not

“necessarily” explain what “it all means, some of it he can,” Lantzy’s counsel

replied, “That is true.” N.T. at 15-16. He cannot now complain that that ruling

was incorrect.

      Even assuming that the court improperly denied the Motion in Limine,

the error was at most harmless. Evidence admitted in error is harmless if (1)

its prejudicial effect was de minimis; (2) it was cumulative of other,

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substantially similar, and properly admitted evidence; or (3) the properly

admitted evidence of guilt was so overwhelming in comparison to the

prejudicial effect caused by the error that the error could not have contributed

to the verdict. See Gause, 164 A.3d at 540.

      Any error in admitting the trooper’s testimony about Lantzy’s gaze was

not prejudicial above a de minimis amount. Lantzy did not argue to the trial

court that Trooper Wildermuth’s testimony about Lantzy’s gaze was testimony

about an inadmissible HGN test, and in fact, the trial court did not consider it

as such. The trial court stated in its Pa.R.A.P. 1925(a) opinion that the trooper

had not testified about an HGN test. As Lantzy then proceeded to a bench

trial, we cannot say that Lantzy sustained anything more than de minimis

prejudice.

      Furthermore, allowing the testimony about Lantzy’s gaze and tongue

was at most harmless because the evidence was offered to show that he was

under the influence of marijuana and there was a lot of other evidence that

he was under the influence. Lantzy admitted to having smoked marijuana an

hour beforehand, and the trooper observed marijuana in Lantzy’s vehicle and

smelled it on his breath.

      We also find no merit to Lantzy’s argument that the court should have

excluded Trooper Wildermuth’s lay opinion that Lantzy was impaired. Trooper

Wildermuth’s lay opinion was informed by a number of factors he was readily

able to perceive and understand based on his training and experience, and

“not based on scientific, technical, or other specialized knowledge.” Gause,

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164 A.3d at 538; Pa.R.E. 701. His testimony aided the court in determining

whether Lantzy had consumed marijuana, and whether Lantzy was impaired

by its use. Pa.R.E. 701. The court properly admitted the lay opinion.

                      II. Sufficiency of the Evidence

      Lantzy argues that there was insufficient evidence to convict him of DUI.

We consider Lantzy’s challenge to the sufficiency of the evidence pursuant to

the following standard:

      When reviewing a sufficiency of the evidence claim, we must
      determine whether, when viewed in a light most favorable to the
      verdict winner, the evidence at trial and all reasonable inferences
      therefrom are sufficient for the trier of fact to find that each
      element of the crime charged is established beyond a reasonable
      doubt.

Commonwealth v. Green, 204 A.3d 469, 484 (Pa.Super. 2019) (citation

omitted). “The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Id. at 484-85 (quoting Commonwealth v. Brown,

23 A.3d 544, 559 (Pa.Super. 2011) (en banc)). As it is a matter of law, we

review the issue of the sufficiency of the evidence de novo. Commonwealth

v. Hall, 199 A.3d 954, 960 (Pa.Super. 2018), appeal denied, 206 A.3d 1028

(Pa. 2019). We do not consider the weight or credibility of the evidence when

reviewing the sufficiency of the evidence. Commonwealth v. Knox, 219 A.3d

186, 195 (Pa.Super. 2019), appeal denied, No. 495 EAL 2019, 2020 WL

1527230 (Pa. Mar. 31, 2020).




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      Lantzy argues that his performance on the FST’s did not show “obvious

signs of a lack of coordination to a degree that would make one believe he

lacked the ability to drive safely.” Lantzy’s Br. at 30. Lantzy claims he

performed the walk and turn test with only “subtle imperfections in an

otherwise acceptable performance” of the test; that although he put his foot

down at the start of the one leg stand test, he “went on to successfully

[complete] the test without issue”; and that he estimated the time accurately

during the Romberg test, and only swayed an inch or two while his eyes were

shut. Id. at 30-31. Lantzy argues he did not perform any worse than “any

other completely sober teenager . . . at night with emergency lights flashing

in [his] face, presumably [testing] for the first time, and without the

opportunity for a do-over.” Id.

      Next, Lantzy argues that there was no evidence that he had driven

erratically, as Trooper Wildermuth did not observe anything wrong with

Lantzy’s driving. Lantzy also points out that there was no obvious evidence

that Lantzy had recently been smoking marijuana, such as billowing smoke or

burnt marijuana. Finally, Lantzy argues that without expert testimony

regarding Lantzy’s level of impairment, the results of a blood test, or evidence

of erratic driving, the evidence was insufficient to support the conclusion that

Lantzy was impaired to a degree that had prevented him from driving safely.

      Section 3802(d)(2) prohibits an individual from driving a motor vehicle

while “under the influence of a drug or combination of drugs to a degree which

impairs the individual’s ability to safely drive . . . the vehicle.” 75 Pa.C.S.A §

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3802(d)(2). This section does not require the Commonwealth to prove there

was a specific amount of a drug in the driver’s system, or necessitate expert

testimony in every case. Commonwealth v. Griffith, 32 A.3d 1231, 1239

(Pa. 2011); Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012).

Whether expert testimony is necessary is a case-by-case determination, and

depends upon “the specific drug at issue” and “the nature and overall strength

of the Commonwealth’s evidence.” Griffith, 32 A.3d at 1239. FST’s “are

generally accepted methods for ascertaining alcohol or drug impairment at the

time of a traffic stop,” and “performing poorly may be sufficient for a finding

of impairment.” Commonwealth v. Salter, 121 A.3d 987, 996-97 (Pa.Super.

2015). There is no requirement that the Commonwealth produce evidence of

erratic driving to establish the inability to drive safely. Id. at 995.

      Here, Trooper Wildermuth testified that Lantzy showed signs of

impairment during the FSTs, and had glassy, bloodshot eyes; had the odor of

burnt marijuana on his breath; and admitted to smoking marijuana an hour

prior to the stop. He also said that during the FSTs, Lantzy exhibited multiple

instances of an inability to maintain balance and other indicators of

intoxication. Viewed in the light most favorable to the Commonwealth, this

evidence was sufficient to establish that Lantzy was under the influence of

marijuana, and that his ability to drive safely was impaired. See, e.g.,

Commonwealth v. Hutchins, 42 A.3d 302, 308-09 (Pa.Super. 2012)

(evidence was sufficient to prove DUI under Section 3802(d)(2), without

expert testimony, where Commonwealth presented evidence that the

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defendant caused a motor vehicle accident, was unusually calm when

speaking with police officers immediately afterward, and confessed that he

had smoked marijuana earlier in the day). Lantzy’s arguments that he

performed other aspects of the FSTs properly goes to the weight, and not the

sufficiency of the evidence. See generally Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000). As the Commonwealth presented sufficient

evidence to sustain the conviction, we affirm Lantzy’s judgment of sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/26/2020




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