J-S20013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JO LEE DIDYOUNG,                          :
                                           :
                    Appellant              :      No. 1201 MDA 2017


        Appeal from the Judgment of Sentence entered July 5, 2017,
              in the Court of Common Pleas of Berks County,
           Criminal Division at No(s): CP-06-CR-0005487-2016.


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED JULY 06, 2018

      Jo Lee Didyoung appeals from the judgment of sentence of five days to

six months in county jail, after her conviction in a bench trial of driving under

the influence (DUI) of a controlled substance (i.e., Xanax). We affirm.

      During the wee hours of a Saturday, Didyoung was driving her vehicle

through a residential neighborhood, on a street with no middle line. Her car

was so far to the left that an oncoming driver had to swerve to avoid a head-

on collision. That driver was a police officer.

      The officer turned around and initiated a traffic stop. He observed that

Didyoung was lethargic, slow to respond to his questioning, and had difficulty

with her motor skills. In particular, when the policeman instructed her to exit

the vehicle, she could not spatially locate the door handle, grabbing air several

times before touching the handle.
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       When the officer asked her if she was alright or needed an ambulance,

Didyoung admitted that she was on Xanax. This, along with a slight smell of

alcohol, prompted the officer to perform four field sobriety tests. The trial

court admitted the results of three (the walk-the-line, stand-on-one-leg, and

finger-to-nose tests) into evidence. Didyoung failed all three in spectacular

fashion. The officer arrested her for DUI.

       He sent Didyoung to a DUI Processing Center for blood testing, but the

Commonwealth did not submit the results of her blood draw into evidence.

The record is not exactly clear why the Commonwealth did not move for the

blood draw’s admission into evidence, but it appears that the test may have

violated Birchfield v. North Dakota, 576 U.S. ___ (2016).1 In any event,

the officer testified as to his opinion of Didyoung’s impairment and inability to

drive safely upon a highway of the Commonwealth. His opinion, based upon

20 years on the force and extensive DUI-recognition training, served as the

lynchpin of the Commonwealth’s case against Didyoung.

       The trial judge, crediting the officer’s testimony, experience, and

training, convicted Didyoung. This appeal followed.

       Didyoung asks us three questions: (1) whether the evidence sufficiently

proved DUI beyond a reasonable doubt, (2) whether the trial court erred by

admitting the arresting officer’s opinion regarding prescription-drug-induced
____________________________________________


1 Birchfield v. North Dakota, 576 U.S. ___ (2016), holds that consent to a
blood test, predicated upon threat of additional criminal penalties for refusing
such a blood test, is not constitutional consent under the Fourth Amendment
to the Constitution of the United States.

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impairment, and (3) whether the trial court abused its discretion by failing to

require scientific evidence of medication in her system or expert testimony

regarding the same. See Didyoung’s Brief at 6. In the argument section of

her brief, Didyoung treated the second and third questions as one issue, and

so will we.

      Turning to Didyoung’s first claim of error, we find waiver. The Supreme

Court of Pennsylvania has made it abundantly clear that “where an appellate

brief fails to provide any discussion of a claim with citation to relevant

authority or fails to develop the issue in any other meaningful fashion capable

of review, that claim is waived.” Commonwealth v. Jones, 985 A.2d 915,

924 (Pa. 2009). See also Pennsylvania Rule of Appellate Procedure 2119.

      Although Didyoung decries that “the Trial Judge got it wrong,” she does

not develop why she believes that is so or how the Commonwealth’s evidence

is insufficient in her brief. Instead of a rigorous legal argument of the issue

raised, Didyoung provides us with six pages of unartful paraphrases and block

quotes – copied and pasted from the record – intermixed with her editorial

comments on the credibility of the Commonwealth’s witness. Didyoung does

not even quote the statute under which the court convicted her or explain

which of the elements she thinks the Commonwealth failed to prove beyond a

reasonable doubt. Moreover, her argument on this issue contains no citation

to any case law.

      All Didyoung offers us, following her string of hodgepodge quotations

from the record, is a rhetorical question and a summary conclusion.       See

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Didyoung’s Brief at 15. This Court cannot guess which elements of DUI that

Didyoung believes the Commonwealth failed to prove beyond a reasonable

doubt, nor may it supply her with a legal argument when she has made none.

As a result, we have no way of performing a meaning appellate review of this

issue, because we do not know what insufficiency Didyoung perceives in the

record. Thus, we dismiss her first issue as waived. Jones, supra.

      Didyoung’s second issue, regarding the admission of the officer’s lay

opinion regarding her impairment, survives waiver, albeit just barely. While

she does not cite to (much less discuss) the Pennsylvania Rules of Evidence,

at least, Didyoung references a case that she thinks is on point and states that

the “trial court’s reliance on Commonwealth v. Tarrach, 42 A.3d 342@346

(Pa. Super 2012), is misplaced.” Didyoung’s Brief at 16. In her view, the trial

court should have barred the officer from offering his lay opinion under this

Court’s recent en banc decision in Commonwealth v. Gause, 164 A.3d 532

(Pa. Super. 2017), appeal denied, ___ A.3d ___ (Pa. 2017). On the other

hand, the Commonwealth contends that Pennsylvania Rule of Evidence 701

and Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011) control and permit

the trial judge the discretion to rule as she did.

      The judge held that the police officer could provide his lay opinion, and

we deferentially review a trial court’s evidentiary rulings. The admissibility of

evidence is committed to the discretion of the 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 (Pa.

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2015) (citing 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.” Grady v. Frito-Lay, Inc., 839 A.2d

1038, 1046 (citing Paden v. Baker Concrete Constr., Inc., 658 A.2d 341,

343 (Pa. 1995)).     Also, a trial court abuses its discretion if “the law is

overridden or misapplied.” Paden (quoting Mielcuszny et ux. v. Rosol,

176 A. 236, 237 (Pa. 1934).

      The parties agree that the officer testified as a lay witness – i.e., not as

an expert.

         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.

      The Supreme Court of Pennsylvania has refused “to hold that the need

for expert testimony is inherent in [75 Pa.C.S.A. § 3802(d)(2)] and thus

mandatory in all cases.” Griffith, supra. at 1238. Correctly interpreting and

applying Griffith to the case at bar, the learned trial judge explained in her

1925(a) Opinion:


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         contrary to [Didyoung’s] assertion, this court found Officer
         Sacks's testimony to be credible. Therefore, this issue is
         without merit.

         With regard to [Didyoung’s] claim that expert testimony was
         required, as previously discussed, the Supreme Court of
         Pennsylvania specifically held that expert testimony was not
         necessarily required in order to convict a defendant for
         violating Section 3802(d)(2) of the . . . Vehicle Code. An en
         banc panel of the Superior Court recently explained:

              Depending      on    the    specific    facts    and
              circumstances, expert testimony may be helpful,
              or perhaps even necessary, to prove causation
              under subsection 3802(d)(2). Accordingly, the
              question of whether expert testimony is
              necessary in such cases must be evaluated on a
              case-by-case basis, taking into account not just
              the specific drug at issue . . . but also the nature
              and overall strength of the Commonwealth's
              evidence. In essence, the Court determined that
              expert testimony is not necessary to establish
              impairment under subsection 3802(d)(2) where
              there exists other independent evidence of
              impairment.

         Commonwealth v. Gause, 164 A.3d 532, 583 (Pa. Super.
         2017) (citing Commonwealth v. Griffith, supra).

         Here, [Didyoung] admitted that she had taken Xanax.
         Officer Sacks credibly testified that [Didyoung’s] erratic
         driving forced him to swerve to avoid a collision. [Didyoung]
         failed the standardized field sobriety tests. In addition,
         Officer Sacks, who has twenty years of experience as a
         police officer and who also received training from the State
         Police on how to detect whether individuals are under the
         influence of drugs that affect the central nervous system,
         testified that [Didyoung’s] lethargic state and lack of motor
         skills, coupled with the other facts of record, led him to
         conclude that [Didyoung] was incapable of safely driving. As
         in Griffith, supra, the facts in the instant case were so
         telling that an expert was not required to establish
         impairment. Therefore, this claim also lacks merit.

Trial Court Opinion at 7-8.


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      We could not agree more with the trial judge’s thoughtful, well-reasoned

analysis on this point. Thus, this Court adopts the trial judges’ decision on

this issue and concludes that she did not abuse her discretion in admitting the

officer’s lay opinion testimony into evidence.

      Judgment of sentence affirmed.



President Judge Gantman joins the Memorandum.

Judge Ott files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:07/06/2018




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