J-A32004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                 Appellant                     :
                                               :
                                               :
          v.                                   :
                                               :
                                               :
    JASON PAUL SCHROCK                         :   No. 841 MDA 2017

                   Appeal from the Order Entered May 10, 2017
                 In the Court of Common Pleas of Franklin County
               Criminal Division at No(s): CP-28-CR-0000775-2016


BEFORE:        OTT, J., DUBOW, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 10, 2018

        The Commonwealth appeals from the order entered May 10, 2017, and

clarified on May 11, 2017,1 in the Franklin County Court of Common Pleas,

which granted, in part, Jason Paul Schrock’s pretrial motion in limine, and

prohibited a state trooper from offering lay opinion testimony based on

“scientific, technical or other specialized knowledge within the scope of

Pa.R.Evid. 702.” Order, 5/11/2017. On appeal, the Commonwealth contends

the trial court’s ruling was erroneous, and the trooper should be permitted to

testify regarding his observations as a lay witness. For the reasons below, we

affirm.
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has properly certified in its notice of appeal that the
order will “substantially handicap the prosecution” pursuant to Pa.R.A.P.
311(d). Notice of Appeal, 5/24/2017.
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     The following facts were developed during a pretrial suppression

hearing, and summarized by the trial court in its opinion disposing of the

motion:

           Robert Adams lives at 2102 Stillhouse Road, Shippensburg,
     Franklin County, Commonwealth of Pennsylvania. He owns the
     property at that address, and resides there with his son Tim
     Adams and Judy.10 During the overnight hours of April 8, 2016 -
     April 9, 2016, [Schrock] and his then girlfriend, Katelyn Rock,
     arrived at Mr. Adams’ residence. They went into the room above
     a shed on the property; at approximately 8:00 p.m., [Schrock]
     snorted heroin and Ms. Rock injected heroin. At some point that
     same evening, Mr. Adams learned that his grandson, [Schrock],
     was present on the property with Ms. Rock. Mr. Adams had
     previously advised [Schrock] that he was not permitted upon the
     property.
     __________

          It was not clear from Mr. Adams’ testimony whether Judy
          10

       is a relative of his, wife/paramour of himself or his son, or
       just a tenant.
     __________

           Upon learning of the presence of [Schrock], Mr. Adams
     contacted the Pennsylvania State Police (hereinafter "PSP") for
     assistance. He advised PSP that there were unwanted individuals
     on his property and that one or both of them may have warrants
     for their arrest. Trooper Benjamin Frantz11 was dispatched to Mr.
     Adams’ residence.
     __________

          Trooper Frantz has been employed by PSP since January
          11

       21, 2007, and has extensive training in detecting the effects
       of an individual under the influence of controlled substances
       or alcohol. Specifically, he received training at the PSP
       Academy, completed Advanced Roadside Impaired Driving
       Enforcement training, and is certified as a Drug Recognition
       Expert by the Pennsylvania Chief’s Association and the
       United States Department of Transportation. In his career
       he has interacted with hundreds of individuals under the
       influence of a controlled substance.
     __________

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           At the time he was dispatched, Trooper Frantz was advised
     that there was a report of two (2) unwanted individuals who were
     trespassing and were possibly wanted by law enforcement
     authorities. Upon arrival at Mr. Adams’ residence, Trooper Frantz
     spoke with Mr. Adams. Mr. Adams advised him that [Schrock]
     and Ms. Rock were in a shed on the property and that Mr. Adams
     wanted them removed. Mr. Adams told Trooper Frantz that his
     grandson's name was “Jason.”

            Trooper Frantz asked Mr. Adams if he could come onto the
     property to search for [Schrock] and Ms. Rock; Mr. Adams advised
     him that he could. In fact, Mr. Adams showed Trooper Frantz the
     location of the shed. [Schrock] and Ms. Rock were located in the
     upstairs room above the shed, which was accessed by an exterior
     staircase.

           Trooper Frantz opened the door to the room and
     immediately observed [Schrock] seated in a chair inside the door.
     Trooper Frantz also observed Ms. Rock move immediately to a
     love seat and sit down. Trooper Frantz noticed a cloud of smoke
     which had an odor consistent with recent narcotic use. He
     observed fresh “track marks” on Ms. Rock’s arms, so recent that
     they were still bleeding. He did not observe track marks on
     [Schrock’s] arms. Both [Schrock] and Ms. Rock had droopy
     eyelids, which Trooper Frantz noted is consistent with recent
     opiate use.

           Trooper Frantz engaged [Schrock] and questioned why he
     was there. [Schrock] advised him that he had the permission of
     his father (Mr. Adams’ son, Tim) to be present on the property.
     While talking to the [Schrock], Trooper Frantz noted that
     [Schrock’s] responses were lethargic, which is consistent with
     recent narcotic use.       Trooper Frantz obtained identifying
     information for both [Schrock] and Ms. Rock and ran12 their names
     for wants/warrants. Ms. Rock provided a false name to Trooper
     Frantz.
     __________
       12 Trooper Frantz could not recall if he ran the names
       himself, or whether another Trooper did.
     __________

           During his investigation, Trooper Frantz asked Ms. Rock
     where her “kit” was; as explained by Trooper Frantz, a “kit” is
     typically a small bag or container where a drug abuser keeps their

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J-A32004-17



     drug delivery devices and other drug-use paraphernalia, as well
     as controlled substances. She advised him that it was in her purse.

           Trooper Frantz observed the purse on the floor and
     approached it. The purse was open and, without touching or
     otherwise manipulating the purse, Trooper Frantz observed used
     hypodermic needles, a tourniquet, cotton, and burnt spoons in an
     open bag inside the purse.13 Upon retrieving the kit for closer
     examination, Trooper Frantz also observed capsules containing a
     brown/off-white substance. The substance’s characteristics were
     consistent with heroin.
     __________
        13The Court notes that these items are commonly used for
       ingesting controlled substances, particularly heroin.
     __________

           At some point, Trooper Frantz took both [Schrock] and Ms.
     Rock into custody14 for the instant offenses.15 Trooper Frantz then
     conducted an immediate search of the area within arms’ reach16
     of [Schrock] and Ms. Rock. He located a jacket which appeared
     to belong to a male; when he questioned [Schrock] regarding
     ownership of the jacket, [Schrock] said it was his. Upon searching
     the jacket, Trooper Frantz located a bag of marijuana.
     __________

             It is not clear from the testimony at what precise point
             14

        Trooper Frantz placed [Schrock] and Ms. Rock under arrest.

              Ms. Rock was charged similarly to [Schrock]; however,
             15

        she was additionally charged with providing false
        identification to law enforcement. Trooper Frantz was also
        aware by this time that [Schrock] was under the supervision
        of state parole.
             16Mr. Adams testified that the room in question is
        approximately 10 feet by 10 feet; Trooper Frantz opined
        that it was a bit larger in dimensions. Suffice it to say, the
        room was not large.

Trial Court Opinion, 3/29/2017, at 5-7.

     Schrock was subsequently charged with possession of a controlled

substance, possession of drug paraphernalia (three counts), and possession


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of marijuana for personal use.2 Although counsel was initially appointed, the

trial court later granted Schrock’s request to proceed pro se following a

Grazier3 hearing conducted on October 12, 2016. Thereafter, Schrock filed

several pretrial motions including an omnibus motion for pretrial relief, which

the trial court granted in part, and denied in part, on March 29, 2017.4

        Relevant to this appeal, Schrock filed a motion in limine on April 28,

2017, seeking, inter alia, to prohibit Trooper Frantz from offering “expert”

testimony and referring to his training as a “drug recognition expert.” Motion

in Limine, 4/28/2017, at unnumbered 5-6. In response, the Commonwealth

filed an answer, asserting Trooper Frantz “will not be tendered as an

expert at trial,” but rather, would be “offering testimony as a lay witness

based on his training, to include his training as a DRE, and experience and

perception of the events on the evening in question as to whether [Schrock]

appeared to be high and/or under the influence” of drugs. Commonwealth’s

Answer, 5/4/2017, at unnumbered 4 (emphasis supplied).

         On May 10, 2017, the trial court entered an order granting, in part, and

denying, in part, Schrock’s motion. For purposes of this appeal, the court

____________________________________________


2   See 35 P.S. §§ 780-113(a)(16), (a)(31)(i), and (a)(32), respectively.

3   See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

4 The trial court granted Schrock’s motion to suppress a statement he made
to Trooper Frantz admitting that he uses heroin and marijuana. See Order,
3/29/2017. However, the court denied Schrock’s motion to suppress the
evidence recovered from the purse and jacket, as well as a motion for writ of
habeas corpus. See id.

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J-A32004-17



directed: “Trooper Benjamin Frantz is prohibited from testifying as an expert

witness or offering an opinion that would fall within the parameters of

Pa.R.Evid. 702.” Order, 5/10/2017, at ¶ 6. The next day, the Commonwealth

filed a motion for clarification. In an order dated May 11, 2017, the court

denied the motion, but explained:

       In granting [Schrock’s] Motion in Limine on this point, the Court
       relied exclusively upon the Commonwealth’s assertion that it
       would not be calling Trooper Frantz as an expert witness. Since
       the Commonwealth is not tendering Trooper Frantz as an expert,
       ip so facto his testimony in the manner of any opinion is limited
       by Pa.R.Evid. 701. In other words, if Trooper Frantz’s opinion
       sought to be introduced by the Commonwealth is based on
       scientific, technical, or other specialized knowledge within the
       scope of Pa.R.Evid. 702, it is not admissible since he is not being
       offered as an expert witness.

Order, 5/11/2017 (emphasis in original). This Commonwealth appeal follows.5

       The Commonwealth’s sole issue on appeal6 asserts the trial court abused

its discretion in prohibiting Trooper Frantz from offering lay opinion testimony

that based upon his experience as a DRE, he believed Schrock was under the
____________________________________________


5 On May 30, 2017, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth complied with the court’s directive, and filed a concise
statement on June 19, 2017.

      We note, too, that in July of 2017, Schrock requested, and was granted,
appointment of counsel to assist him on appeal. See Order, 7/5/2017. After
counsel filed Schrock’s appellee brief, he requested permission to withdraw in
the trial court. By order entered November 21, 2017, the trial court held
counsel’s motion in abeyance until after a ruling from this Court, in order to
“avoid undue prejudice” to Schrock. Order, 11/21/2017.
6 Although the Commonwealth lists two issues in its brief, we have

consolidated them for ease of disposition.


                                           -6-
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influence of narcotics on the night in question. See Commonwealth’s Brief at

19.

      Our review of a trial court’s ruling on a motion in limine is well-

established:

      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. “A trial court has broad discretion to determine whether
      evidence is admissible,” and a trial court’s ruling regarding the
      admission of evidence “will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.”

Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa. Super. 2014) (internal

citations omitted).

      With regard to the specific issue presented sub judice, we note

Pennsylvania Rule of Evidence 701 provides that a lay witness may offer

opinion testimony so long as it 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.    Rule 702 sets forth the qualifications for expert opinion

testimony, including, inter alia, that the expert have “scientific, technical, or

other specialized knowledge [] beyond that possessed by the average

layperson[.]” Pa.R.E. 702(a).

      Here, the Commonwealth insists Trooper Frantz should be permitted to

provide lay opinion testimony that: (1) Schrock was under the influence of

                                      -7-
J-A32004-17



narcotics on the night in question; (2) the odor in the room was consistent

with recent narcotic/heroin use; and (3) the drug paraphernalia found at the

scene was a “drug kit” commonly possessed by drug users.                      See

Commonwealth’s Brief at 20-28.                 The Commonwealth maintains these

opinions were based solely upon Trooper Frantz’s observations, coupled with

his experience as a DRE. See id. at 23-24. Specifically, the Commonwealth

argues the trooper’s observations of Schrock’s behavior and demeanor were

“‘typical and obvious’ indicia of recent narcotic use which make the admission

of a lay witness opinion on the issue appropriate[.]”          Id. at 24 (citation

omitted). Moreover, it contends the trooper’s opinion that the odor in the

room was consistent with recent narcotic use was not based on specialized

knowledge because “the average layperson understands how ones (sic) sense

of smell works[.]” Id. at 26. Further, the Commonwealth argues “a layperson

could quite easily comprehend what a drug kit is … without the necessity of

expert testimony.” Id. at 27.

       The trial court addressed the Commonwealth’s arguments as follows:

       [T]he Commonwealth rather bizarrely asserts that Trooper Frantz
       will not be offered as an expert witness,[7] but will “be offering
       testimony as a lay witness based on his training, to include his
       training as a DRE, and experience and perception of the events on
       the evening in question as to whether [Schrock] appeared to be
       high and/or under the influence of an intoxicating substance.” The

____________________________________________


7 The Commonwealth has provided no explanation as to why it will not offer
Trooper Frantz as an expert witness, particularly considering his training as a
DRE.


                                           -8-
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      Commonwealth further argues that the issues raised by [Schrock]
      go to the weight of Trooper Frantz’s testimony, and not its
      admissibility.    Finally, the Commonwealth points out that
      [Schrock] will have the opportunity to cross-examine Trooper
      Frantz during trial on the issues raised.

            The Commonwealth avers that the observations and
      conclusions of Trooper Frantz are admissible under Pa.R.Evid.
      701. … In the Court’s mind, it defies logic to suggest, as the
      Commonwealth does, that Trooper Frantz’s testimony falls within
      Pa.R.Evid. 701 and not Pa.R.Evid. 702. While Trooper Frantz can
      certainly testify under Pa.R.Evid. 701 regarding his observations
      and perceptions, any conclusion derived therefrom that [Schrock]
      was under the influence of heroin inexorably originates from the
      Trooper’s training, education and experience.

             Since the Commonwealth has indicated that Trooper Frantz
      will not be offered as an expert witness, he will be permitted to
      testify as to what he observed; however, because he is not offered
      as an expert witness under Pa.R.Evid. 702, he is prohibited from
      testifying to any conclusion based upon his training, education or
      experience, i.e., any conclusion that would fall within the gambit
      of Pa.R.Evid. 702. See Pa.R.Evid. 701(c).

                                 ****
           As a result of the Commonwealth’s decision not to have
      Trooper Frantz testify as an expert, his status as a Drug
      Recognition Expert7 becomes irrelevant.
      __________
         7 It should not be lost on either party that the word “expert”
         is in the very title of Trooper Frantz’s status as a DRE.

Trial Court Opinion, 5/10/2017, at 5-6 (some internal citations and footnote

omitted). The trial court also provided several examples of permissible and

impermissible testimony under its ruling.     See id. at 6-7 (explaining the

trooper could (a) testify he smelled an odor when he entered the room, (b)

identify the objects in Rock’s purse, and (c) describe Schock’s physical

behavior; but could not (a) identify the odor as recent heroin use, (b) identify



                                     -9-
J-A32004-17



the items in Rock’s purse as a “drug kit” and explain possession of such a kit

was indicative of recent drug use, and (c) testify that Schrock’s physical

appearance was indicative of recent heroin use).

      We agree with the trial court’s ruling, and find this Court’s recent en

banc decision in Commonwealth v. Gause, 164 A.3d 532 (Pa. Super. 2017),

appeal denied, ___ A.3d ___ (Pa. Oct. 26, 2017), instructive. In Gause, a

police officer conducted a stop of the defendant’s vehicle for a minor traffic

violation. Although the defendant did not immediately appear to be under the

influence of drugs or alcohol, the officer smelled alcohol and the defendant

acknowledged he had one beer at a friend’s house. See id. at 535. The officer

then conducted several field sobriety tests, and based on the results, the

defendant was arrested and charged with, inter alia, driving under the

influence of a controlled substance. See id. at 534-535.

      Relevant herein, the arresting officer testified at trial that, in her opinion,

the defendant was under the influence of marijuana at the time of the traffic

stop based on body and eyelid tremors he displayed during one of the field

sobriety tests.   See id at 536.       After he was convicted, the defendant

appealed. A panel of this Court vacated the judgment of sentence, concluding

the trial court erred in permitting the officer’s opinion testimony. The panel

opined:

      Although Officer Eiker could testify as to her observations of an
      apparent physical condition, a qualified expert is required to
      provide the connection between the symptoms observed and the
      drug allegedly influencing the defendant’s driving.          See


                                       - 10 -
J-A32004-17



     [Commonwealth v.] DiPanfilo, [993 A.2d 1262 (Pa. Super.
     2010)]; see also Commonwealth v. Allison, 550 Pa. 4, 703
     A.2d 16 (1997) (lay witness could not testify regarding “split and
     opened” condition of complainant’s hymen in absence of qualified
     expert testimony to explain significance of these personal
     observations); Commonwealth v. Yanoff, 456 Pa.Super. 222,
     690 A.2d 260 (1997) (murder defendant attempted to elicit
     objectionable opinion by asking police officer whether victim had
     appeared to be under influence of drugs; officer had not been
     qualified to     render    such opinion); Commonwealth v.
     Yedinak, 450 Pa.Super. 352, 676 A.2d 1217, 1222 (1996) (Beck,
     J., dissenting) (“[A]fter a proper foundation has been laid, a lay
     witness may testify as to his or her observations. However, a
     qualified expert is required to provide the connection between the
     symptoms observed and the drug allegedly influencing the
     defendant’s driving.”).

           It is clear to this Court that Officer Eiker’s observation of
     “eyelid tremors” is not the typical and obvious indicia of marijuana
     use, such as the distinct odor of burnt marijuana emanating from
     the person or the vehicle. Further, it is eminently clear that
     attributing body or eyelid tremors to marijuana use requires
     specialized knowledge within the scope of Pa.R.E. 702. Unlike
     staggering, stumbling, glassy or bloodshot eyes, and slurred
     speech, the “ordinary signs of intoxication discernable by a
     layperson,” eye tremors are not an ordinary sign of ingestion of a
     controlled substance, in particular, marijuana. As the trial court
     acknowledged,      Officer    Eiker’s     testimony   as    to   her
     observations did not obviate the necessity of an expert to
     explain whether “eye tremors,” or “body tremors,” would indicate
     that someone was under the influence of marijuana and that this
     impaired his ability to safely drive, in violation of section
     3802(d)(2). See DiPanfilo, supra; cf. Commonwealth v.
     Jones, 121 A.3d 524 (Pa. Super. 2015) (as matter of first
     impression, police officer’s smelling strong, distinct odor of burnt
     marijuana emanating from vehicle during traffic stop provided
     reasonable     grounds,     by    itself,    to  request    chemical
     testing); Commonwealth v. Etchison, 916 A.2d 1169 (Pa.
     Super. 2007). Because it required specialized knowledge, Officer
     Eiker’s testimony was inadmissible as “lay opinion.” See Pa.R.E.
     701.




                                    - 11 -
J-A32004-17



Id. at 539 (footnotes omitted). Furthermore, the panel disagreed with the

trial court’s ruling that the error was harmless. The panel explained: “Without

expert testimony to explain a connection, if any, the jury was permitted to

engage in speculation that the observation of eye tremors indicates marijuana

impairment, or, at the least, ingestion.” Id. at 540.

      We find Trooper Frantz’s opinion testimony in the present case to be

similarly flawed. At the suppression hearing, the trooper described Schrock

and Rock as both having a pale complexion and droopy eyelids – proper lay

witness testimony - but then he inappropriately testified that their appearance

was “indicative in [his] expertise that they had recently used some type of

drug, specifically an opiate.”   N.T., 2/6/2017, at 21 (emphasis supplied).

Similarly, the trooper’s testimony that there was a “chemical odor” in the air

was proper; however, his follow-up statement that the odor was indicative of

recent narcotic use was based on his DRE training, and, thus, represented

expert testimony. See id. Lastly, with respect to Rock’s “drug kit,” Trooper

Frantz’s description of the paraphernalia observed in the purse was proper,

but his conclusion, based on his “training and experience,” that the items

constituted “a heroin kit used to inject the drug” was improper expert

testimony. Id. at 23.

      Accordingly, because we agree Trooper Frantz should not be permitted

to provide expert opinion testimony when he is not being offered as an expert




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witness, we affirm the trial court’s order granting, in part, Schrock’s motion in

limine.

      Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished. Schrock’s pro se petition for leave to file supplemental appellee

brief is denied as moot.

      Judge Dubow joins this memorandum.

      Judge Strassburger files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2018




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