J-S06009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JULIA ROSEMARIE HARRINGTON                 :
                                               :
                       Appellant               :   No. 1841 EDA 2019

          Appeal from the Judgment of Sentence Entered May 24, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001720-2018


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                                Filed: March 16, 2020

        Julia Rosemarie Harrington appeals from the judgment of sentence,

entered in the Court of Common Pleas of Monroe County, following her

convictions for driving under the influence (DUI)—controlled substance1 and

the summary offense of careless driving.2 Upon careful review, we affirm.

        The trial court summarized the relevant facts as follows:

        Trooper Michael Wychock of the Pennsylvania State Police was on
        patrol on April 14, 2018. He had recently graduated from the
        State Police Academy and this was his first DUI investigation as a
        state trooper. He was not trained as a drug recognition expert.
        He was a military police officer for six years before becoming a
        state trooper and made approximately four DUI-related stops
        during that time.


____________________________________________


1   75 Pa.C.S.A. § 3802(d)(2).

2   75 Pa.C.S.A. § 3714(a).
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     Trooper Wychock and Trooper Bruce Balliet responded to a report
     of a disabled vehicle on Route 380 in Monroe County on April 14,
     2018 at approximately [1:34 a.m.]. A passing truck driver
     radioed that he thought he saw a vehicle off the side of the Route
     380 northbound lane. When the troopers arrived on the scene,
     they observed that the guardrail had been pushed up in the air
     and [Harrington’s] vehicle was approximately 50 feet down the
     right embankment. It had rotated 90 degrees and had come to
     rest facing west. The weather at the time was clear and the fog
     line on the roadway was visible.

     Trooper Wychock met [Harrington] on the embankment. Her
     appearance was disheveled and she was speaking “slow and
     sluggish.” She wasn’t making sense when answering questions.
     Her eyes were bloodshot and glassy. Her speech was “very
     lethargic” and she seemed confused. She told the trooper that
     she had lost control of her vehicle. She stated she had been in
     the middle lane, but at that point on Route I-380N, there are only
     two lanes. She said she was getting off at Exit 20, but that exit is
     in the Scranton area. The crash occurred at Mile Marker 8.1 where
     there was no exit nearby.

     Trooper Wychock conducted the HGN [(horizontal gaze
     nystagmus)], walk[-]and[-]turn, and one-leg[-]stand field
     sobriety tests upon [Harrington]. During the walk[-]and[-]turn
     test [Harrington] was instructed to walk nine steps forward in a
     straight line, one foot in front of the other heel to toe, then turn
     around and walk nine step back. [Harrington] missed heel to toe
     on both sets of nine; in the one-leg[-]stand test, [Harrington]
     swayed, put her foot down and raised her hand multiple times.
     The trooper concluded that [Harrington] was operating her vehicle
     while under the influence of a controlled substance and he placed
     her under arrest. He took her to the Monroe County Correctional
     Facility where she was read the DL[-]28B form and was asked to
     give a sample of her blood, which she refused. There was no
     evidence of alcohol use and no drug paraphernalia was found.
     [Harrington] did not admit to using controlled substances.

     Trooper Balliet testified that he had been a Pennsylvania State
     Trooper for five years and had made over 100 DUI arrests since
     2014. He was ARIDE [(Advanced Roadside Impaired Driving
     Enforcement)] certified. He was supervising Trooper Wychock
     because Wychock had recently graduated from the Pennsylvania
     State Police Academy. Trooper Balliet conducted a field sobriety

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        test upon [Harrington,] during which she raised her chin, closed
        her eyes and was asked to estimate the passage of thirty seconds.
        [Harrington] failed the test because she did not accurately
        estimate the passage of thirty seconds on two tries. To pass the
        test[,] the subject must announce the passage of thirty seconds
        and be within five seconds of the 30[-]second period. Trooper
        Balliet observed Trooper Wychock administer the other field
        sobriety tests, and saw clues of impairment. He concluded that
        Harrington was under the influence of a controlled substance,
        primarily a depressant.

Trial Court Opinion, 8/13/19 at 2-4.

        The court found Harrington guilty of DUI and careless driving on March

4, 2019. Harrington filed post-trial motions, which were denied on April 26,

2019.     On May 24, 2019, the court sentenced Harrington to a term of

imprisonment of 72 hours to six months for DUI, plus a $1,000 fine, and to a

$25 fine for careless driving. Harrington timely filed a notice of appeal and a

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Harrington raises the following claims:

        (1)   Did the court abuse its discretion by not setting aside the
              verdict and granting a new trial after the Commonwealth
              failed to show any evidence that [Harrington] was under the
              influence of controlled substances after having an accident
              in which she went off the road, under a guardrail and down
              an embankment where [Harrington]’s condition was
              attributable to the accident?

        (2)   Did the court abuse its discretion by not setting aside the
              verdict as to driving under the influence of a controlled
              substance, in that there was insufficient evidence to convict
              [Harrington] of that crime, in that the Commonwealth failed
              to prove an element of the crime that [Harrington] was
              under the influence of a controlled substance?

        (3)   Did the court abuse its discretion by not setting aside the
              verdict as to driving under the influence of a controlled

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            substance, in that it was against the weight of the evidence
            to convict [Harrington] of the crime, in that the
            Commonwealth failed to prove an element of the crime that
            [Harrington] was under the influence of a controlled
            substance?

      (4)   Did the court abuse its discretion by not setting aside the
            verdict and granting a new trial after allowing the
            Commonwealth to argue that [Harrington]’s refusal to have
            the BAC blood test was consciousness of guilt and could be
            considered evidence of guilt[,] impermissibly burden[ing]
            [Harrington]’s  constitutional   privilege  against    self-
            incrimination?

      (5)   Did the court abuse its discretion by not setting aside the
            verdict and granting a new trial after allowing the trooper to
            opine that [Harrington] was under the influence of an
            unknown substance when the layperson opinion of an officer
            is not admissible in a controlled substance DUI case?

Brief of Appellant, at 6-7 (reordered for clarity).

      Harrington’s first two issues challenge the sufficiency of the evidence

and we address them together. In reviewing a challenge to the sufficiency of

the evidence, this Court applies the following well-established standard:

      We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that, as a matter

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      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa. Super. 2016).

“Because evidentiary sufficiency is a matter of law, our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Brooker,

103 A.3d 325, 330 (Pa. Super. 2014).

      Harrington claims that the Commonwealth presented insufficient

evidence to support her conviction where the Commonwealth failed to show

that Harrington had controlled substances in her system at the time of the

accident. Brief of Appellant, at 10, 20.

      Harrington was convicted under the DUI statute, which provides, in

relevant part:

      § 3802. Driving under influence of alcohol or controlled
      substance.


                                     ***

      (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:

         (1) There is in the individual's blood any amount of a:

            (i) Schedule I controlled substance . . .
            (ii) Schedule II or Schedule III controlled substance . . . or
            (iii) metabolite of a substance under subparagraph (i) or (ii).

         (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).

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      Specifically, Harrington was convicted under subsection 3802(d)(2).

The plain language of the DUI statute does not require the Commonwealth to

prove Harrington had controlled substances in her system for purposes of that

subsection.    See id.   Rather, to support a conviction under subsection

3802(d)(2), “the Commonwealth only had to prove that [Harrington] [drove

while she] was under the influence of a drug to a degree that impair[ed] [her]

ability to safely drive or operate a vehicle.” Commonwealth v. Williamson,

962 A.2d 1200, 1204 (Pa. Super. 2008); see also 35 P.S. § 780-102

(definition of drug includes “substances (other than food) intended to affect

the structure or any function of the human body or other animal body”);

Commonwealth v. Roser, 914 A.2d 447, 455 (Pa. Super. 2006) (gasoline

and “bug and tar remover” qualify as drugs under DUI statute).

      At the outset, the trial court determined, and Harrington does not

dispute, that Harrington was in actual physical control of her vehicle at the

time she drove off Route 380 and down an embankment; this element is not

before us.    To support Harrington’s conviction, the Commonwealth had to

prove that, at the time she was driving, Harrington was under the influence

of a drug or a combination of drugs that impaired her ability to drive safely.

75 Pa.C.S.A. § 3802(d)(2).

      Harrington drove her vehicle off Route 380, through a guardrail, and

down an embankment when “the weather at the time was clear and the fog

line on the roadway was visible.” N.T. Trial, 3/4/19, at 7-8. Upon arriving at


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the scene, Troopers Wychock and Balliet observed that Harrington presented

obvious signs of impairment: Harrington was swaying, looked disheveled, and

had bloodshot and glassy eyes; she spoke slowly, sluggishly, and lethargically;

she appeared confused and gave nonsensical answers to simple questions;

she stated she was in the “middle lane” of a two-lane highway, and that she

attempted to get off at “Exit 20,” located in another county, when no exit was

nearby; two state troopers, including Trooper Balliet who is ARIDE certified,

administered field sobriety tests on Harrington and concluded, based on her

performance, that she was under the influence of a controlled substance. Id.

at 8-12, 21-24. This evidence supports a reasonable inference that Harrington

was impaired by controlled substances to a degree that rendered her incapable

of safe driving.   See Commonwealth v. Gause, 164 A.3d 532, 539-42

(“staggering, stumbling, glassy or bloodshot eyes, and slurred speech” are

signs of intoxication from a controlled substance; “[e]vidence that the driver

was not in control of [herself], such as failing to pass a field sobriety test, may

establish that the driver was under the influence . . . to a degree which

rendered [her] incapable of safe driving”).          Accordingly, the evidence

presented at trial and all reasonable inferences therefrom, viewed in a light

most favorable to the Commonwealth as verdict winner, was sufficient to

support Harrington’s conviction. Rodriguez, supra.

      Next, Harrington claims the court abused its discretion in denying her

motion for a new trial where the verdict was against the weight of the


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evidence. Specifically, Harrington avers that “field sobriety tests alone are

not enough [] to show beyond a reasonable doubt that she was driving under

the influence of a controlled substance.” Brief of Appellant, at 23.

      We review the trial court’s exercise of discretion in ruling on the weight

claim, not the underlying question of whether the verdict was against the

weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408

(Pa. 2003). It is not our role, as a reviewing court, to reweigh the evidence

and substitute our judgment for that of the fact-finder. Commonwealth v.

Mitchell, 902 A.2d 430, 449 (Pa. 2006). “The essence of appellate review

for a weight claim [lies] in ensuring that the trial court’s decision has record

support. Where the record adequately supports the trial court, the trial court

has acted within the limits of its discretion.” Commonwealth v. Clay, 64

A.3d 1049, 1054 (Pa. 2013) (citations and quotations omitted). To warrant a

new trial on weight of the evidence grounds, “the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

      Here, the record supports the trial court’s conclusion that the verdict

was not against the weight of the evidence.       Our review shows that the

evidence was not tenuous, vague, or uncertain, and that the verdict was not

so contrary to the evidence as to shock the court’s conscience.            Two

Pennsylvania State Troopers, one of whom was ARIDE-certified, testified that

Harrington was not capable of safely operating her vehicle due to ingesting


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controlled substances, after they credibly testified that Harrington drove her

car off the road, presented obvious signs of intoxication, failed a number of

field sobriety tests, and refused to provide a blood sample upon request. N.T.

Trial, 3/4/19, at 4-14, 20-25. We conclude, therefore, that the court did not

abuse its discretion in denying Harrington’s motion for a new trial based on

her weight of the evidence challenge. Champney, supra.

      Harrington next claims the trial court abused its discretion, in violation

of her constitutional right against self-incrimination, by not granting a new

trial where the Commonwealth argued that her refusal to submit to a blood

test was indicative of her guilty conscience. Brief of Appellant, at 13-14.

      Pennsylvania statutory law provides for the introduction of this evidence

in DUI cases. Specifically, 75 Pa.C.S.A. § 1547(e) provides that:

      In any summary proceeding or criminal proceeding in which the
      defendant is charged with violating section 3802 or any other
      violation of this title arising out of the same action, the fact that
      the defendant refused to submit to chemical testing as
      required by subsection (a) may be introduced in evidence
      along with other testimony concerning the circumstances
      of the refusal. No presumptions shall arise from this evidence
      but it may be considered along with other factors concerning the
      charge.

75 Pa.C.S.A. § 1547(e) (emphasis added).

      Moreover, the United States Supreme Court has upheld the introduction

of refusal evidence over Fifth Amendment challenges. See South Dakota v.

Neville, 459 U.S. 553, 554 (1983) (“admission into evidence of a defendant’s

refusal to submit to [a blood-alcohol test] does not offend the right against


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self-incrimination”).3 The Supreme Court further clarified that there is no Fifth

Amendment violation where a prosecutor argues that a defendant’s refusal to

take a blood-alcohol test is evidence of their guilt. Id.4

       Finally, Harrington claims that the trial court abused its discretion in

denying her motion for a new trial after permitting Trooper Wychock to give

lay opinion testimony regarding her ability to drive safely and whether she

was under the influence of drugs or alcohol.       Brief of Appellant, at 15-17.

Citing a dissenting opinion, Harrington argues that lay opinion testimony is

inadmissible to prove intoxication in a DUI case, and that a qualified expert is

required to establish the connection between any alleged substances she

ingested and the symptoms displayed in order to convict her of DUI. Brief of

Appellant, at 16, citing Commonwealth v. Yedinak, 676 A.2d 1217, 1222

(Pa. Super. 1996) (Beck, J., dissenting).




____________________________________________


3See also Birchfield v. North Dakota, 136 S.Ct. 2160, 2185 (2016) (“Our
prior opinions have referred approvingly to the general concept of implied-
consent laws that impose civil penalties and evidentiary consequences on
motorists who refuse to comply.”) (emphasis added).

4 In Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme Court held
that the Fifth and Fourteenth Amendments forbid prosecutors from
commenting that an accused’s silence is evidence of their guilt. The Court
explained subsequently in Neville, however, that, “[u]nlike the defendant's
situation in Griffin, a person suspected of drunk driving has no constitutional
right to refuse to take a blood-alcohol test. The specific rule of Griffin is thus
inapplicable.” 459 U.S. 553, 571 n.10.




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       Harrington did not raise any objection at trial to Trooper Wychock’s lay

opinion testimony; instead, she raises this issue for the first time on appeal.

Consequently, this issue is waived.            Pa.R.A.P. 302(a); Commonwealth v.

McGriff, 160 A.3d 863, 866 (Pa. Super. 2017) (“[I]t is well-settled that a

party must make a timely and specific objection at trial, and the failure to do

so results in waiver of that issue on appeal.”).5

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/20




____________________________________________


5 We note, however, that contrary to Harrington’s assertion, our Supreme
Court has specifically “decline[d] to read into subsection 3802(d)(2) a
mandatory requirement for expert testimony to establish that the defendant’s
inability to drive safely was caused by ingestion of a drug, even if it is a
prescription drug, or drug combination.” Commonwealth v. Griffith, 32
A.3d 1231, 1238 (Pa. 2011).

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