J-A03033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    KEVIN BOYLE,

                             Appellant                No. 2561 EDA 2017


              Appeal from the Judgment of Sentence July 11, 2017
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0000708-2017


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED APRIL 27, 2018

        Appellant, Kevin Boyle, appeals from the judgment of sentence imposed

July 11, 2017, following his non-jury trial conviction of driving under the

influence (DUI)—controlled substances, possession of drug paraphernalia, and

failing to signal.1     Appellant challenges the admissibility of the arresting

officer’s testimony and the sufficiency of the evidence to support his

conviction. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s October 2, 2017 opinion.

On November 16, 2016, Officer Matthew Uffelman of the Darby Borough Police
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*   Retired Senior Judge assigned to the Superior Court.

175 Pa.C.S.A. § 3802(d)(2), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S.A. §
3334, respectively.
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Department stopped Appellant’s vehicle after Appellant made a left turn

without using a turn signal.     (See N.T. Trial, 5/08/17, at 6-7).      Upon

approaching the car, Officer Uffelman asked Appellant for his license,

registration, and insurance. (See id. at 8-9). Appellant stated that he was a

suspended driver and did not have a license. (See id. at 9).

      During the interaction, Officer Uffelman observed that Appellant was

slurring his speech and talking very slowly. He was shaking uncontrollably

while fumbling through his documents.      Officer Uffelman also noticed that

Appellant’s eyes were bloodshot and glassy. (See id.).

      While Appellant was going through his belongings, he reached down

toward his foot, where Officer Uffelman observed the handle of a machete

sticking out from underneath the driver’s seat. Officer Uffelman then asked

Appellant to exit the vehicle and performed a security pat down. (See id. at

9-10).   While Officer Uffelman conducted the pat down, he observed that

Appellant was still slurring his speech and was swaying from side to side as if

to stabilize himself while he had his hands on the back of the trunk of the

vehicle. (See id. at 11).

      After Officer Uffelman went back to the vehicle to retrieve the machete,

he saw a spoon and hypodermic needle in the driver’s side door panel. (See

id.). The spoon was bent, had burn marks on the bottom, and white powdery

residue on top. (See id.). Officer Uffelman took Appellant into custody for

possession of drug paraphernalia and suspicion of DUI. Appellant refused a




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blood test, but admitted that he had used methamphetamine the prior day.

(See id. at 12).

        The court conducted a non-jury trial on May 8, 2017.      At trial, the

Commonwealth offered Officer Uffelman as a lay witness, who would testify

about his opinion as to being under the influence of a controlled substance

based on his experience and training as a police officer. (See id. at 16-17).

Appellant objected, arguing that whether someone was under the influence of

a controlled substance required an expert opinion.      (See id. at 17).   The

Commonwealth clarified that it was only offering Officer Uffelman’s testimony

as a lay opinion, and the trial court admitted it as such.

        Officer Uffelman opined that, based on Appellant’s slurred speech,

unsteadiness, shakiness, and possession of drug paraphernalia where he was

seated, he had been under the influence of a controlled substance. (See id.

at 19). Officer Uffelman explained that unsteadiness and nervous tics could

be signs of somebody under the influence of methamphetamine. (See id. at

20).

        On May 11, 2017, the trial court entered a verdict of guilty for DUI,

possession of drug paraphernalia, and failing to use a turn signal. The court

found Appellant not guilty of driving while his license was suspended. 2 The

court ordered a presentence investigation report (PSI).      On June 6, 2017,

Appellant moved for a judgment of acquittal based on the Commonwealth’s

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2   75 Pa.C.S.A. § 1543(a).

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failure to introduce expert testimony concerning whether Appellant was under

the influence of a controlled substance. The trial court conducted a hearing

on Appellant’s motion on June 20, 2017, and took the matter under

advisement. On July 11, 2017, at the start of Appellant’s sentencing hearing,

the trial court heard further argument on Appellant’s motion for acquittal, and

denied the motion. (See N.T. Sentencing, 7/11/17, at 4-16).

       Thereafter, with the benefit of a PSI, the court sentenced Appellant to

not less than seventy-two hours nor more than six months of incarceration.

This timely appeal followed.3

       Appellant presents two questions on appeal.

       1. [Whether, i]n the non-jury trial of this case, the court
          committed legal error and/or abused its discretion by admitting
          into evidence, over the objection of [Appellant], the lay opinion
          testimony of Officer Matthew Uffelman of the Darby Borough
          Police Department, because the admission of such lay opinion
          testimony violated Rules 701 and 702 of the Pennsylvania
          Rules of Evidence, the Federal Constitution’s Sixth and
          Fourteenth Amendments, and Pennsylvania Constitution Article
          I, Sec. 9[?]

       2. [Whether t]he trial court committed legal error by entering a
          verdict against the sufficiency of the evidence (i) in denying
          [Appellant’s] first motion for judgment of acquittal (a challenge
          to the sufficiency of the evidence to sustain a conviction of a
          charge of Driving Under the Influence of a Drug, 75
          P[a].C.S.[A.] Section 3802(d)(2)[], and Use/Possession of
          Drug Paraphernalia[,] 35 P.S. Section 780-113(a)(32)), made
          at the close of the Commonwealth’s case-in-chief, pursuant to
          Pa.R.Crim.P. 606(A)(1), and (ii) in denying [Appellant’s]
          second motion for judgment of acquittal (a challenge to the
____________________________________________


3 Pursuant to the trial court’s order, Appellant filed his concise statement of
errors complained of on appeal on August 25, 2017. The trial court entered
its opinion on October 2, 2017. See Pa.R.A.P. 1925.

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          sufficiency of the evidence to sustain a conviction of a charge
          of Driving Under the Influence of a Drug, 75 P[a].C.S.[A.]
          Section 3802(d)(2)), made orally before sentencing pursuant
          to Pa.R.Crim.P. 606(A)(5) and 704(B)[?]

(Appellant’s Brief, at 5-6).

       Appellant’s first issue challenges the trial court’s admissibility of Officer

Uffelman’s lay opinion testimony. (See id. at 11-18). Specifically, he argues

that Officer Uffelman failed to explain how his observations of Appellant

proved that he was under the influence of methamphetamine, and that any

opinion    concerning     whether      a   driver   was   under   the   influence   of

methamphetamine is based on specialized knowledge and thus requires an

expert opinion. (See id. at 15-18).4 We disagree.

       Our standard of review for a challenge to the trial court’s admissibility

of lay opinion testimony is

             . . . well settled: “The admissibility of evidence is a matter
       for 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, 716 (Pa. 2015) (citation 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

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4 Although Appellant also argues that based on this Court’s decision in Gause,
infra, the Commonwealth needed to provide expert testimony to prove that
Appellant was under the influence of a controlled substance, (see Appellant’s
Brief, at 16-18), because that argument challenges the sufficiency of the
evidence, we will address it with Appellant’s second issue.

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            (c) not based on scientific, technical, or other
            specialized knowledge within the scope of Rule 702.

      Pa.R.E. 701 []. Our cases further hold that 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, 537–38 (Pa. Super. 2017), appeal

denied, 173 A.3d 267 (Pa. 2017) (some emphasis and one case citation

omitted); see also Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa.

Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013) (“[A] lay witness must

form an opinion based upon his or her rationally based perceptions.”).

      In the instant case, Officer Uffelman testified that he personally

observed that Appellant’s speech was slurred and he was talking slowly, he

was shaking uncontrollably, his eyes were bloodshot and glassy, and upon

exiting the car, he needed to steady himself by leaning on the trunk. (See

N.T. Trial, at 9-11). He also personally observed the bent spoon and needle

in the driver’s side door and testified that Appellant told him that he had taken

methamphetamine the day before. (See id. at 11-12). Finally, he testified

that, based on these observations, he was of the opinion that Appellant was

under the influence of a controlled substance, possibly methamphetamine.

(See id. at 19-20).

      Upon review, we conclude that Officer Uffelman’s testimony was

rationally based on his perception, was helpful to the trier of fact, and was not

based on scientific or technical knowledge. See Gause, supra at 537-38;

Huggins, supra at 967; Pa.R.E. 701. Therefore, the trial court did not abuse

its discretion in admitting the testimony of Officer Uffelman as lay opinion

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testimony pursuant to Pa.R.E. 701.          Appellant’s first issue does not merit

relief.

          In his second issue, Appellant claims that the evidence at trial was

insufficient to prove that he was guilty of DUI-controlled substance or

possession of drug paraphernalia.         (See Appellant’s Brief, at 16-23).      We

disagree.

          Appellant’s issue challenges the sufficiency of the evidence, for which

our standard of review is well-settled.

                 The standard we apply in reviewing the sufficiency of
          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 factfinder 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
          that of the fact-finder. In addition, we note that the facts and
          circumstances 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.

Commonwealth v. Hutchins, 42 A.3d 302, 306–07 (Pa. Super. 2012),

appeal denied, 56 A.3d 396 (Pa. 2012) (citations and quotation marks

omitted).




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     Appellant was convicted of DUI-controlled substances, under 75

Pa.C.S.A. § 3802(d)(2), which provides:

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

75 Pa.C.S.A. § 3802(d)(2).

     Our Supreme Court has held that section 3802(d)(2) does not contain

“a mandatory requirement for expert testimony to establish that the

defendant’s inability to drive safely was caused by ingestion of a drug[.]”

Commonwealth v. Griffith, 32 A.3d 1231, 1238 (Pa. 2011); see also

Gause, supra at 538 (“In essence, the [Griffith] Court determined that

expert testimony is not necessary to establish impairment under subsection

3802(d)(2) where there exists other independent evidence of impairment.”).

     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.” Kozak v. Struth, 515 Pa. 554, 531 A.2d 420, 422
     (1987). The need for expert testimony in a subsection 3802(d)(2)
     prosecution must be evaluated on a case-by-case basis, taking
     into account not just the specific drug at issue, prescription or
     otherwise, but also the nature and overall strength of the
     Commonwealth’s evidence, viewed pursuant to the general
     standard expressed in Kozak, supra.

Griffith, supra at 1239.

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       In Hutchins, supra, the Commonwealth offered the following evidence

of the appellant’s guilt under section 3802(d)(2):       (1) the appellant was

unusually calm when talking to an investigating police officer after having been

involved in a serious accident; (2) the appellant confessed that he had smoked

marijuana earlier in the day; (3) marijuana was found in the appellant’s

vehicle; and (4) the appellant caused the accident. See Hutchins, supra at

308-09. The Hutchins Court concluded that considering the totality of the

circumstances, viewed in the light most favorable to the Commonwealth, the

evidence was sufficient to prove the appellant was guilty of DUI-controlled

substance, even without expert testimony or blood test results. See id. at

309.

       Appellant claims that based on this Court’s decision in Gause, the

Commonwealth was required to offer expert testimony that he was under the

influence of a controlled substance. (See Appellant’s Brief, at 16-18). We

disagree.

       In Gause, this Court held that it was not harmless error for the trial

court in that case to permit the arresting officer to offer her lay opinion, based

solely on results of the Romberg test, that the defendant had used marijuana.

See Gause, supra at 540.          The Court noted that “the Commonwealth

provided no evidence that Gause had recently ingested marijuana[,] . . . no

testimony that [his] eyes were bloodshot. Nor did [the officer] testify that

she discovered any physical evidence of recent marijuana usage. Further,

there was no admission from Gause that he had recently smoked marijuana.”

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See id. at 538-39. Instead, the Commonwealth relied solely on the officer’s

opinion that eyelid tremors exhibited while the officer performed the Romberg

test indicated prior marijuana use. See id. at 536, 540. The Court concluded

that because the officer’s opinion concerning the eyelid tremors was the only

evidence pertaining to marijuana impairment, admission of the Romberg test

results as lay opinion was not harmless. See id. at 540.

      The facts and circumstances of the instant case, however, are easily

distinguishable from Gause. Here, the Commonwealth did not rely solely on

results of a specific technical test, but rather offered myriad circumstantial

evidence, which under the totality of the circumstances, proved that Appellant

was driving while under the influence of a controlled substance.        Officer

Uffelman testified that he personally observed that Appellant’s speech was

slurred and he was talking slowly, he was shaking uncontrollably, his eyes

were bloodshot and glassy, and, upon exiting the car, he needed to steady

himself by leaning on the trunk. (See N.T. Trial, at 9-11). Officer Uffelman

also testified that, he discovered a bent spoon (which testified positive for

methamphetamine residue) and needle in the driver’s side door. (See id. at

11, 13-14). Furthermore, Appellant conceded to Officer Uffelman that he did

not   want    to   undergo   chemical   testing   because   he    had   taken

methamphetamine the day before and was concerned the test would show

something in his system. (See id. at 12-13).

      Upon review, we conclude that this case is similar to Griffith, wherein

the Commonwealth produced other independent evidence of impairment, thus

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expert testimony was not necessary to establish that Appellant was under the

influence of a controlled substance. See Griffith, supra at 1239; Gause,

supra at 538.   Additionally, we conclude that based on the totality of the

circumstances, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, the evidence is sufficient to sustain

Appellant’s conviction under section 3802(d)(2). See Griffith, supra at 1240

n.7; Hutchins, supra at 308-09.           Thus, Appellant’s challenge to the

sufficiency of the evidence to support his conviction of DUI-controlled

substance does not merit relief.

      Finally, Appellant challenges the sufficiency of the evidence to support

his conviction of possession of drug paraphernalia. (See Appellant’s Brief, at

18-21). Appellant’s claim is meritless.

      Section 780–113(a)(32) of The Controlled Substance, Drug, Device and

Cosmetic Act prohibits the following acts:

      The use of, or possession with intent to use, drug paraphernalia
      for the purpose of planting, propagating, cultivating, growing,
      harvesting, manufacturing, compounding, converting, producing,
      processing, preparing, testing, analyzing, packing, repacking,
      storing, containing, concealing, ingesting, inhaling or otherwise
      introducing into the human body a controlled substance in
      violation of this act.

35 P.S. § 780–113(a)(32).

                  [I]n determining whether an object is drug
            paraphernalia, a court or other authority should
            consider, in addition to all other logically relevant
            factors, statements by an owner or by anyone in
            control of the object concerning its use, prior
            convictions, if any, of an owner, or of anyone in


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           control of the object, under any State or Federal law
           relating to any controlled substance, the proximity of
           the object in time and space, to a direct violation of
           this act, the proximity of the object to controlled
           substances, the existence of any residue of
           controlled substances on the object, . . . the
           existence and scope of legitimate uses for the object
           in the community, and expert testimony concerning
           its use.

           To sustain a conviction for possession of drug paraphernalia
     the Commonwealth must establish that items possessed by
     defendant were used or intended to be used with a controlled
     substance so as to constitute drug paraphernalia and this burden
     may be met by Commonwealth through circumstantial evidence.

Commonwealth v. Little, 879 A.2d 293, 299–300 (Pa. Super. 2005), appeal

denied, 890 A.2d 1057 (Pa. 2005) (citations omitted, emphasis in original,

some emphasis omitted).

     Because the police did not find the drug paraphernalia on Appellant’s

person, the Commonwealth was required to establish that he constructively

possessed it. This Court has stated that:

     [c]onstructive possession requires proof of the ability to exercise
     conscious dominion over the substance, the power to control the
     contraband, and the intent to exercise such control. Constructive
     possession may be established by the totality of the
     circumstances. We have held that circumstantial evidence is
     reviewed by the same standard as direct evidence—a decision by
     the trial court will be affirmed so long as the combination of the
     evidence links the accused to the crime beyond a reasonable
     doubt.

Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005)

(citations and quotation marks omitted).

     Here, the record reflects that Officer Uffelman discovered a bent spoon

and needle, which he explained were “common drug paraphernalia[,]” in the


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driver’s side door of the vehicle that Appellant had been driving. (N.T. Trial,

at 11). Residue on the spoon tested positive for methamphetamine residue.

(See id. at 13-14).

       Upon review, viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude that this evidence was more

than sufficient to sustain Appellant’s conviction for possession of drug

paraphernalia. See, e.g., Commonwealth v. Hopkins, 67 A.3d 817, 821

(Pa. Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013) (appellant

constructively possessed firearm that was found in arm-length of where he

was seated in vehicle he was driving); Little, supra at 299–300. Appellant’s

challenge to the sufficiency of the evidence to support his possession of drug

paraphernalia conviction does not merit relief.

       Accordingly, for all of the foregoing reasons, we conclude that

Appellant’s claims do not merit relief, and affirm his judgment of sentence.5

       Judgment of sentence affirmed.




____________________________________________


5 Counsel’s Praecipe for Withdrawal of Appearance is denied without prejudice
to raise it before the trial court.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18




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