Com. v. Kelly, S. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUSAN RUTH KELLY :
:
Appellant : No. 2275 EDA 2019
Appeal from the Judgment of Sentence Entered December 14, 2018
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000116-2016
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: Filed May 5, 2020
Susan Ruth Kelly appeals from the judgment of sentence, entered in the
Court of Common Pleas of Carbon County, following her convictions for driving
under the influence (DUI)—controlled substance1 and careless driving2 at a
non-jury trial. Upon careful review, we affirm.
The Honorable Joseph J. Matika summarized the relevant facts and
procedural history of the case as follows:
On April 12, 2015, at approximately 2:33 P.M., Officer Tyler Meek
(hereinafter “[Officer] Meek”) was dispatched to the McDonald’s
parking lot in Mahoning Township, Carbon County, Pennsylvania
for a motor vehicle accident. [Officer Meek observed damage to
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(d)(2).
2 75 Pa.C.S.A. § 3714(a).
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a red Mini-Cooper driven by Kelly and another vehicle, and
concluded Kelly’s vehicle struck the other vehicle.]
[Officer Meek also noticed that Kelly] appeared confused and
disoriented,4 had very glossy eyes and had trouble standing
without holding onto her vehicle.5 [In determining whether to
contact a Drug Recognition Expert (D.R.E.), Officer Meek initiated
some field tests. Kelly nearly fell over several times during that
testing. Upon completing his investigation, Officer Meek believed
it was necessary to contact a D.R.E. and he transported Kelly to a
local hospital to meet with one.]
4On cross-examination, [Officer] Meek elaborated on Kelly’s
confusion by stating that she [neither knew] what time it
was nor what day it was.
5At no time during the course of the investigation did Kelly
ever express that she had a medical condition that caused
her to have balance issues.
***
Corporal Shawn Noonan (hereinafter “[Corporal] Noonan”) of the
Pennsylvania State Police, a D.R.E., also testified at trial. After
being qualified as such, he testified regarding the twelve[-]step
process to determine if a person is capable of safely operating a
motor vehicle while under the influence of a controlled substance
and then testified as to how he initiated these twelve steps in this
case. [One of the steps he utilized involved three tests:
Horizontal Gaze Nystagmus (HGN) test, Vertical Gaze Nystagmus
(VGN) test, and lack of convergence test.]
[Corporal] Noonan also testified that [as] part of his D.R.E. report,
he interviews the person being administered the [exam]. After
properly [M]irandizing[3] Kelly, he elicited the following
information: 1) Kelly took a Xanax before leaving the house for
tooth pain; 2) Kelly took Hydrocodone earlier in the morning that
day; 3) that she struck the other vehicle from behind as she was
unable to stop after [the other vehicle] had started and abruptly
stopped; and 4) the date of the incident was Sunday and the
[then-]present time was 1:00 P.M.7 [Corporal] Noonan also
testified to various observations he made of Kelly which were part
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3 Miranda v. Arizona, 384 U.S. 436 (1966).
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of the D.R.E. exam including: lethargy, reddening of conjunctiva,
an impaired perception of time, general confusion, constricted
pupils and the lack of reaction to a light stimuli. [Corporal]
Noonan explained that each of these observations, based upon his
training and experiences, can be conditions caused by the use of
a central nervous system depressant such as Xanax or a narcotic
analgesic such as Hydrocodone.
7 The time of the interview of Kelly by [Corporal] Noonan
was 3:00 P.M. and [the incident occurred on] a Monday, not
a Sunday.
***
Kelly also took the witness stand. [] On the date in question, she
testified that around 6:00 A.M., she took a Xanax and a Vicodin.10
10 Vicodin is the generic name for Hydrocodone.
***
[At the conclusion of the trial,] this [c]ourt found Kelly guilty of
the [charges against her]. [Subsequently], Kelly was sentenced
on the D.U.I. charge to a period of six (6) months in the County
Intermediate Punishment Program with sixteen (16) days in a
Qualified Restrictive Intermediate Punishment Program (home
electronic monitoring). Various conditions were also placed on
this sentence. On the [c]areless [d]riving charge, Kelly was
sentenced to a $25.00 fine and costs.
Trial Court Opinion, 06/02/19, at 1-7 (some footnotes omitted).
Following sentencing, Kelly filed post-sentence motions, which were
denied. This timely appeal follows, in which Kelly raises the following claims
for our review:
(1) Whether the [t]rial [c]ourt erred by allowing a police officer,
who[] was not offered as an expert witness, to testify to his
opinion on whether [] Kelly was impaired by her prescription
medications to the point where she could not drive safely?
(2) Whether the [t]rial [c]ourt erred by allowing testimony on
any performance on the HGN, VGN, or lack of convergence
field sobriety tests without evidence that these tests have
gained general acceptance in the scientific community?
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Appellant’s Brief, at 4.
Kelly first claims the trial court erred when it allowed Officer Meek to
“opine that she was impaired by her medications to the point where she could
not drive safely.” Appellant’s Brief, at 9. At trial, the Commonwealth offered
Officer Meek as a lay witness. During Officer Meek’s testimony, Kelly objected
to the following Commonwealth question on the grounds that it elicited an
expert opinion:
Q. [BY MR. GREEK]: Okay, [a]nd based upon your education,
your training and experience with suspected drivers being under
the influence of a controlled substance and your observations of
the Defendant at the time that you had her out of the vehicle, do
you have an opinion whether she was under the influence of a
controlled substance at the time you had contact with her?
MR. MOTTOLA: I would object to an expert conclusion, Your
Honor.
MR. GREEK: I think I laid a foundation on how many times he has
seen individuals that he suspected and how many arrests he
made.
THE COURT: Well, I believe that based on his training and
experience, he does not need to be an expert to render such an
opinion. As a police officer, he has that ability, or else he wouldn’t
be making arrests. Overruled.
Q. [BY MR. GREEK]: Do you have an opinion on whether she was
under the influence of a controlled substance at the time that you
had contact with her?
A. Yes, I feel she was and she was incapable of safe driving due
to that.
N.T. Trial, 8/14/18, at 13.
Our standard of review for challenges to admissibility of evidence is well-
settled: “The admissibility of evidence is a matter for the discretion of the
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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) (quoting 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.” Id. The admissibility of lay opinion testimony is governed by
Pennsylvania Rule of Evidence 701 (Opinion Testimony by Lay Witnesses).
Rule 701 states:
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. Additionally, 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, 538 (Pa. Super. 2017).
At trial, Officer Meek testified that he personally observed Kelly and that
she appeared confused, had very glossy eyes, and had trouble standing
without holding onto her vehicle. He further testified that Kelly nearly fell over
several times when he attempted to administer standard field sobriety tests.
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The Commonwealth’s questioning of Officer Meek did not elicit his opinion of
whether Kelly was incapable of driving safely because she was under the
influence. Rather, the Commonwealth’s question simply inquired as to Officer
Meek’s opinion of whether Kelly was under the influence of a controlled
substance at the time he observed her. This Court has previously held that
such questioning is permissible. See Commonwealth v. DiPanfilo, 993
A.2d 1262, 1267-69 (Pa. Super. 2010) (holding lay witnesses may testify as
to their opinion that individual was under influence of cocaine and opiates
because their intoxicating effects are widely and commonly understood)3;
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3Kelly testified that she ingested both prescription Xanax and Vicodin in the
hours prior to her vehicle collision. Kelly relies on our opinion in
Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa. Super. 2010) to support
her claim that:
The intoxicating effects of cocaine and opiates, like the
intoxicating effects of alcohol, are more widely and commonly
understood such that an ordinary person could conclude that a
person was under the influence of these substances [whereas] the
side-effects of prescription drugs may not be widely or publicly
known, particularly when they are used to treat an underlying
medical condition.
See Appellant’s Brief, at 12 (emphasis added).
In DiPanfilo, we relied on our now-reversed decision in Commonwealth v.
Griffith, 985 A.2d 230 (Pa. Super. 2009), wherein we drew a distinction
between the well-known intoxicating effects of cocaine, opiates, and alcohol,
and the effects of prescription drugs, in deciding whether expert witnesses
were required, as a matter of sufficiency of the evidence, to sustain the
appellant’s DUI conviction. DiPanfilo, 993 A.2d at 1267. Our holding that
experts were required for sufficiency purposes was overruled just one year
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Commonwealth v. Neiswonger, 488 A.2d 68, 69 (Pa. Super. 1985)
(holding testimony by non-experts on whether person is intoxicated is
admissible).
Here, Officer Meek testified from his own observations and perceptions
of Kelly’s appearance and actions, informed by his training and experience.
That testimony was helpful in understanding Officer Meek’s testimony and in
determining a fact in issue, and it was not based upon any scientific, technical,
or other specialized knowledge. See Gause, supra; Pa.R.E. 701. Therefore,
the trial court did not abuse its discretion by admitting Officer Meek’s lay
opinion testimony pursuant to Pa.R.E. 701. See Poplawski, supra.
Next, Kelly challenges the admission of Corporal Noonan’s testimony.
Corporal Noonan testified as to his observations while administering the HGN,
the VGN, and the lack of convergence tests on Kelly. At trial, Kelly objected
to any testimony relating to her performance on those tests. The trial court
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later by our Supreme Court in Commonwealth v. Griffith, 32 A.3d 1231 (Pa.
2011). In reversing, our Supreme Court stated:
We do not believe that the Superior Court’s division of drugs into
prescription versus non-prescription categories is warranted or
helpful in the interpretation or application of subsection
3802(d)(2) or in the determination of whether an expert witness
should be called. 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.
Id. at 1239 (internal quotations and citations omitted). We do not find Kelly’s
distinction between prescription and non-prescription drugs useful or
persuasive in the instant case.
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overruled Kelly’s objection, but prevented Corporal Noonan from testifying as
to his ultimate conclusions on those tests, thus limiting his testimony to his
observations and perceptions during his administration of the tests. Corporal
Noonan’s relevant testimony proceeded as follows:
THE COURT: I am going to allow Corporal Noonan to testify
regarding what he observed, but not his ultimate conclusions on
the HGN, VGN or lack of convergence.
***
Q. [BY MR. GREEK]: Did you have the opportunity as part four of
your eye examination to observe Susan Kelly's eyes?
A. I did.
Q. And can you comment on what you observed with regard to
her and her eyes and her ability to follow a stimulus while you
were performing the evaluation?
A. Yes, I am trying to say this without saying other stuff. A
precursor for later tests is to ensure that a person is able to follow
my finger as I slowly move it back and forth, side to side. In this
case, my finger was the stimulus. I raised it in front of her face
and asked her if she could follow my finger as I moved it back and
forth, from side to side. She was unable to follow it. Her eyes
were jerky and they quickly returned to the center position.
N.T. Trial, 8/14/18, at 38-39.
Kelly relies on our decisions in Commonwealth v. Apollo, 603 A.2d
1023 (Pa. Super. 1992) and Commonwealth v. Stringer, 678 A.2d 1200(Pa. Super. 1996), to support her claim that “without scientific foundation, the
Commonwealth cannot present any evidence on a defendant’s performance
on the HGN.” Appellant’s Brief, at 20. Kelly further reasons that because the
VGN and lack of convergence tests are similarly scientific in nature to the HGN,
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no evidence on any of these three tests is admissible at trial, and consequently
she is entitled to a new trial. Id. at 20-23. We find that this evidence was
admitted in error, but that it was harmless error.
In Apollo, we held it was not an abuse of discretion for the trial court
to exclude testimony relating to the results of an HGN test because the expert
testimony did not “establish general acceptance in the scientific community of
the HGN test.” Apollo, 603 A.2d at 1027-28. In Stringer, we stated,
“Pennsylvania law requires that an adequate foundation be set forth
establishing that HGN testing is generally accepted in the scientific
community, including the medical science field of ophthalmology.” Stringer,
678 A.2d at 1203.
Here, the Commonwealth failed to establish any foundation setting forth
whether the HGN, VGN, or lack of convergence tests are generally accepted
in the scientific community. Therefore, Corporal Noonan’s testimony relating
to the results of Kelly’s performance on those tests was admitted in error.
See Stringer, supra.On the Stringer facts—where additional evidence of guilt beyond the
HGN was lacking—we held that the necessary foundation was missing and that
there was reversible error where the trial court admitted the HGN test results
through the expert’s testimony. Id.In Stringer, in holding that the admission was not harmless error, we
stated:
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[U]nlike [Commonwealth v. Miller, 532 A.2d 1186 (Pa. Super.
1987)], the trial court’s error was not harmless since no other field
sobriety tests were administered, and appellant refused to submit
to a blood alcohol content test. Accordingly, we reverse the
judgment of sentence and remand this case for a new trial
consistent with this opinion.
Id. (emphasis added).
By contrast, in Miller we found there was harmless error when an expert
was permitted to testify regarding the results of an HGN test. Miller, 532
A.2d at 1190. In Miller, we stated:
Even though the admission into evidence of the results of the HGN
test was error, we believe that the error was harmless since there
was sufficient other evidence to sustain the jury's verdict that
appellant was guilty of driving under the influence of alcohol.
[Both Officer Duck and Officer Bruno testified that appellant had
bloodshot eyes, smelled of alcohol, had slurred speech, was
boisterous and agitated, and drove erratically.] Officer Bruno also
testified that appellant was unable to successfully perform three
field sobriety tests [and] that appellant was able to successfully
complete the recitation-of-alphabet test only after two attempts.
In light of the testimonial evidence of appellant’s intoxication, the
admission into evidence of the results of the HGN test was
harmless error. We find that the arresting officers’ observations
of appellant, as well as appellant’s performance on the other field
sobriety tests, established a sufficiently independent basis for the
jury’s verdict that appellant was guilty of driving under the
influence of alcohol.
Miller, 532 A.2d at 1190 (quotations and citations omitted; emphasis added);
see also Commonwealth v. Boerner, 407 A.2d 883 (Pa. Super. 1979)
(holding error in admitting breathalyzer evidence due to improper expert
certification harmless in light of overwhelming testimonial evidence of
appellant’s intoxication.)
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We find that the instant facts are on all fours with Miller, and are
distinguishable from those in Stringer. Here, Officer Meek testified that he
encountered Kelly’s vehicle and, from his observations, determined that Kelly
collided into the other vehicle. Officer Meek also testified that Kelly did not
know the date, time, or day of the week and that Kelly appeared confused,
had very glossy eyes, and that she had trouble standing without holding onto
her vehicle. Officer Meek further testified that Kelly nearly fell over several
times when he attempted to administer standard field sobriety tests. In
addition, Corporal Noonan testified that Kelly had a significant inability to
estimate time and that he observed Kelly’s body swaying forward to backward
about an inch. Corporal Noonan further testified that Kelly was unable to
successfully perform the finger-to-nose test on the first try, and that she did
not tilt her head back as far as requested, but was able to perform that test
on five subsequent attempts. In light of the substantial testimonial evidence
of Kelly’s impairment, the admission into evidence of the results of the HGN
test was harmless error. We find that the observations by Officer Meek and
Corporal Noonan of the scene of the accident, of Kelly, and of Kelly’s
performance on the other field sobriety tests, established a sufficient
independent basis for the verdict. See Miller, supra.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/05/2020
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