J-A19019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AMBER WILKINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1885 MDA 2017

Appeal from the Judgment of Sentence Entered November 2, 2017

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0004406-2016

BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 19, 2018

Appellant Amber Wilkinson appeals from the judgment of sentence 

imposed following her conviction of driving under the influence1 (DUI)—

general impairment at a non-jury trial. Appellant raises sufficiency and weight 

of the evidence claims. Appellant also asserts that the trial court improperly 

permitted a police officer to testify regarding the administration of field 

sobriety tests when a different officer had administered the tests. We affirm. 

On August 22, 2016, at approximately 4:00 p.m., Appellant was 

operating a vehicle near the intersection of Kidder and Mundy Streets in 

Wilkes-Barre. Appellant drove through an intersection and hit the front end 

of another vehicle, ripping off its front bumper. N.T., 9/27/17, at 6. 

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1 75 Pa.C.S. § 3802(a)(1).
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Wilkes-Barre City Police Officer Sara Chmielewski immediately

responded to a report of the accident. Id. at 5. Officer Chmielewski spoke

with Appellant and noticed that Appellant’s speech was slow and slurred and 

that Appellant’s eyes were “glossy” and red. Id. at 7-8. Appellant admitted 

that she was driving and had taken muscle relaxers “in the last day.” Id. at 

7, 9.

Officer Chmielewski requested that Acting Sergeant Corey Dumont 

come to the location to conduct field sobriety tests.

2 Once he arrived, 

Sergeant Dumont asked Wilkinson to perform tests while Officer Chmielewski 

observed from several feet away. Id. at 8, 15. Appellant performed poorly 

on the field sobriety tests as demonstrated by her lack of balance and inability 

to count her steps correctly. Id. at 9. Appellant was unable to blow into a 

portable breath test device properly despite being instructed on how to do so. 

Id. at 10. Appellant told the police to “just take [her] in already.” Id. 

Appellant was transported to the hospital, where she refused to have her blood 

drawn, and from there she was transported to the police station. Id. at 11, 

22-23.

Appellant was charged with DUI—general impairment, and a non-jury 

trial was held on September 27, 2017. Officer Chmielewski testified for the 

Commonwealth, and, in relevant part, described Appellant’s poor performance 

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2 Officer Chmielewski was not certified to perform field sobriety tests, although 

certification was not required to administer the tests. See N.T. at 14.
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during the field sobriety tests. Appellant’s counsel did not object.

3

 See id. at 

8-9. Sergeant Dumont did not testify at trial.

Appellant testified that she did not believe the accident was her fault 

because the light was green when she went through the intersection. Id. at 

18. Appellant stated that she had taken one prescribed muscle relaxant the 

evening before, but suggested that it would not affect her ability to drive 

because she takes it and uses heavy machinery at work while on the 

medication. Id. at 20, 22. Appellant also stated that she had difficulty 

completing the field sobriety tests because her sciatica was “acting up” and 

“the sun was glaring in [her] eyes.” Id. at 21. Appellant’s mother also 

testified, stating that she knows what Appellant looks like while intoxicated 

and that Appellant was not intoxicated when she picked her up from the police 

station around 8:00 p.m. the day of the incident. Id. at 26-27.

The trial court found Appellant guilty of DUI—general impairment. On 

November 2, 2017, the court sentenced Appellant to forty-eight hours to six 

months of incarceration.4 

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3 Appellant’s counsel did object when Officer Chmielewski testified that 

Appellant took the breath test twice. The trial court overruled the objection 

because the Commonwealth was not seeking to introduce any results through 

the testimony, but merely the fact that Appellant was unable to complete the 

test. See N.T. at 10.

4 Appellant was not subject to an enhanced sentence for her refusal of a blood 

test. 
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Appellant filed a timely notice of appeal.5 Appellant and the trial court 

complied with Pa.R.A.P. 1925.

Appellant raises the six issues, which we have reordered as follows:

1. Whether the [trial c]ourt erred in not ruling that the evidence 

was insufficient as a matter of law to establish [Appellant’s] 

guilt beyond a reasonable doubt on the charges[.]

2. Whether the [trial c]ourt erred in not finding that [Appellant] 

was innocent as a matter of law as the Commonwealth did not 

meet its burden of proof that [Appellant] operated her motor 

vehicle while impaired[.]

3. Whether the [trial c]ourt erred in finding [Appellant] guilty of 

the criminal charges because the [c]ourt’s verdict was based 

on insufficient evidence and/or was against the weight of the 

evidence[.]

4. Whether the evidence submitted at trial by the Commonwealth 

was insufficient as a matter of law to establish [Appellant’s] 

guilt beyond a reasonable doubt on the charges[.]

5. Whether the [t]rial [c]ourt improperly admitted into evidence 

and then relied in error upon responding Officer Chmielewski’s 

testimony as to the methods and manner of the administration 

of the [f]ield [s]obriety [t]ests by certified Acting Sergeant 

Corey Dumont, and in permitting Officer Chmielewski to testify 

as to the conclusions of the officer who administered them, but 

who was not present in [c]ourt and subject to the crossexamination of [Appellant.]

6. Whether the [t]rial [c]ourt improperly permitted Officer 

Chmielewski to express an opinion as to the methods and 

manner of the administration of the [f]ield [s]obriety [t]ests by 

Acting Sergeant Corey Dumont, who did not testify at [t]rial[.]

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5 The thirtieth day after sentencing fell on December 2, 2017, a Saturday. 

See Pa.R.A.P. 903(a). Therefore, Appellant’s notice of appeal, filed Monday,

December 4, 2017, was timely. See 1 Pa.C.S. § 1908.
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Appellant’s Brief at 4-5.

Appellant’s first four issues challenge the sufficiency and weight of the 

evidence.6 Appellant asserts that Officer Chmielewski did not observe 

Appellant driving. Id. at 24. Appellant also argues that Officer Chmielewski 

did not establish she was intoxicated. See id. at 24-26. Specifically, 

Appellant contends that the officer did not explain how she knew Appellant’s 

speech was slurred when the officer had never heard her speak before. Id.

at 24. Appellant notes that that she had difficulties performing the field 

sobriety tests because of a back injury and the sun being in her eyes. Id. at 

24-25. Further, Appellant argues that the trial court “ignored the testimony 

of [] Appellant and her [m]other and convicted [her]” of DUI—general 

impairment. Id. at 26. Appellant also asserts that “at the [t]rial below, no 

testimony had been proffered to establish that alcohol was the cause of 

[Appellant’s] alleged impaired ability to drive safely.” Id. at 27.

It is well-settled that 

[t]he standard we apply in reviewing the sufficiency of the 

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 fact-finder 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 

the fact-finder. In addition, we note that the facts and 

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6 To the extent Appellant raises a challenge to the weight of the evidence, this 

issue is waived because Appellant raised it for the first time in her Rule 

1925(b) statement. See Pa.R.Crim.P. 607(A) (providing that a claim that a 

verdict is against the weight of the evidence must be raised in a motion for a 

new trial); Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009).
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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. Tucker, 143 A.3d 955, 964 (Pa. Super. 2016) (citation 

omitted), appeal denied, 165 A.3d 895 (Pa. 2017).

Section 3802(a)(1) defines DUI—general impairment as follows: “An 

individual may not drive, operate or be in actual physical control of the 

movement of a vehicle after imbibing a sufficient amount of alcohol such that 

the individual is rendered incapable of safely driving, operating or being in 

actual physical control of the movement of the vehicle.” 75 Pa.C.S. § 

3802(a)(1) (emphasis added). Accordingly, the Commonwealth has the 

burden of proving “(1) that the defendant was the operator of a motor vehicle 

and (2) that while operating the vehicle, the defendant was under the 

influence of alcohol to such a degree as to render him or her incapable of safe 

driving.” Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003).

Regarding the type, quantum, and quality of evidence necessary to 

prove a violation of DUI—general impairment, we note the following:

Section 3802(a)(1), like its predecessor [DUI statute], is a general 

provision and provides no specific restraint upon the 

Commonwealth in the manner in which it may prove that an 
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accused operated a vehicle under the influence of alcohol to a 

degree which rendered him incapable of safe driving . . . . The 

types of evidence that the Commonwealth may proffer in a 

subsection 3802(a)(1) prosecution include but are not limited to,

the following: the offender’s actions and behavior, including 

manner of driving and ability to pass field sobriety tests; 

demeanor, including toward the investigating officer; physical 

appearance, particularly bloodshot eyes and other physical signs 

of intoxication; odor of alcohol, and slurred speech. . . . The weight 

to be assigned these various types of evidence presents a question 

for the fact-finder, who may rely on his or her experience, 

common sense, and/or expert testimony. Regardless of the type 

of evidence that the Commonwealth proffers to support its case, 

the focus of subsection 3802(a)(1) remains on the inability of the 

individual to drive safely due to consumption of alcohol—not on a 

particular blood alcohol level.

Commonwealth v. Eichler, 133 A.3d 775, 790 (Pa. Super. 2016), appeal 

denied, 161 A.3d 791 (Pa. 2016) (citation omitted). We note that “classic 

signs of intoxication[ include] red, glassy eyes and slurred, slow speech.” 

Commonwealth v. Teems, 74 A.3d 142, 147 (Pa. Super. 2013).

At the outset, we note that there was ample evidence that Appellant 

was driving, especially considering that Appellant admitted she was operating 

the vehicle involved in the accident. N.T. at 7. Thus, the first element of the 

offense of DUI—general impairment was satisfied. See Smith, 831 A.2d at

638.

As to the second element of DUI—general impairment, requiring that 

Appellant was operating the vehicle while under the influence, we note that

Officer Chmielewski responded to the scene shortly after receiving a report 

that the accident occurred. Upon arriving, the officer immediately observed 

signs that Appellant had consumed alcohol that impaired her ability to drive. 
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In particular, the evidence that the Commonwealth properly proffered to show 

that Appellant was impaired by alcohol included that Appellant had slurred 

speech, red, glossy eyes, and lacked an ability to balance. See Eichler, 133 

A.3d at 790; Teems, 74 A.3d at 147. These indicia of intoxication support

an inference that Appellant was impaired by alcohol consumption. Tucker, 

143 A.3d at 964. Accordingly, the Commonwealth satisfied the second 

element of DUI—general impairment such that Appellant is not entitled to 

relief. 

Appellant’s final two issues regarding Officer Chmielewski’s testimony

are related and we address them together. Appellant asserts that the trial 

court improperly allowed Officer Chmielewski to “express an opinion as to the 

methods and manner of administration of the [f]ield [s]obriety [t]ests by 

Acting Sergeant Corey Dumont, and to testify as to Acting Sergeant Dumont’s 

conclusions.” Id. at 19. Appellant further argues that “[b]ecause it required 

specialized knowledge, Officer Chmielewski’s testimony was inadmissible as 

‘lay opinion,’” and “Officer Chmielewski could not have testified as an expert 

in this case [because] Officer Chmielewski was not ‘qualified’ as an expert[.]” 

Id. at 21 (citing Pa.R.E. 701, 702).

Initially, we note that this issue is waived because of the failure of 

counsel to object at trial to Officer Chmielewski’s observations regarding 

Appellant being off balance and failing to count her steps properly during the 

field sobriety tests. See Pa.R.A.P. 302(a). Additionally, Appellant failed to 

include this issue in her concise statement. See Commonwealth v. 
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Barnhart, 933 A.2d 1061, 1066 n.10 (Pa. Super. 2007) (citation omitted) 

(indicating that an appellant’s failure to include an issue in a Pa.R.A.P. 1925(b) 

statement results in waiver of the issue). 

Even if this issue were not waived, Officer Chmielewski did not testify 

as an expert and was permitted to provide lay testimony on the subject of 

Appellant’s signs of intoxication.

In general,

[t]he standard of review employed when faced with a challenge to 

the trial court’s decision as to whether or not to admit evidence is 

well settled. Questions concerning the admissibility of evidence 

lie within the sound discretion of the trial court, and a reviewing 

court will not reverse the trial court’s decision absent a clear abuse 

of discretion. Abuse of discretion is not merely an error of 

judgment, but rather where the judgment is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations 

omitted).

Pennsylvania Rule of Evidence 702 provides:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average 

layperson;

(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the 

relevant field.
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Pa.R.E. 702. Pennsylvania Rule of Evidence 701 provides:

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. A layperson is permitted to testify to certain indicia of 

intoxication. See Commonwealth v. Ragan, 652 A.2d 925, 928 (Pa. Super. 

1995) (noting that “non-expert testimony is admissible to prove intoxication 

where such testimony is based upon the witness’ observation of the 

defendant’s acts and speech and where the witness can opine as to whether 

the defendant was [intoxicated]”).7 

Here, the Commonwealth was not required to qualify Officer 

Chmielewski as an expert in order for her to testify to her own observations 

of Appellant’s failure to follow instructions. Moreover, Officer Chmielewski did

not testify that Appellant was considered to be under the influence specifically 

for failing a field sobriety test or that Appellant had failed any of the tests.

Rather, the officer testified to indicia of intoxication to which a layperson is 

permitted to testify, including Appellant’s slurred speech, red, glossy eyes,

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7 We may rely on case law predating the enactment of the Pennsylvania Rules 

of Evidence to the extent the case law does not contradict the 

rules. Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 

2010).
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and inability to maintain her balance. See id. Accordingly, the trial court did 

not err in permitting Officer Chmielewski’s testimony on this subject.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2018