J-S37024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RITA E. FORBES

Appellant No. 1822 MDA 2016

Appeal from the Judgment of Sentence August 24, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0008132-2015

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 15, 2017

Rita E. Forbes appeals from the August 24, 2016 judgment of sentence 

entered in the York County Court of Common Pleas following her bench-trial 

convictions for driving under the influence (“DUI”) of a controlled substance 

– general impairment and careless driving.1 We affirm.

The opinion of the Honorable Harry M. Ness set forth a detailed factual 

and procedural history, which we adopt and incorporate herein. See Opinion 

in Support of Order Pursuant to Pa.R.A.P. 1925(a), 1/6/17, at 1-13 

(“1925(a) Op.”). On November 3, 2016, Forbes timely appealed to this 

Court.

____________________________________________

1 75 Pa.C.S. § 3802(d)(2) and 3714(a), respectively.
J-S37024-17

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Forbes raises one issue on appeal: “The trial court erred in admitting 

the lack of convergence (LOC) test as it is a variation of the horizontal gaze 

nystagmus (HGN) test, which is not admissible, as both tests are used to 

gauge the eye’s ability to track an object in order to determine the 

possibility of intoxication.”2 Forbes’ Br. at 4.

____________________________________________

2 The Commonwealth argues that Forbes waived this challenge on 

appeal because she did not file a pre-trial motion in limine challenging the 

LOC evidence under the standard in Frye v. United States, 293 F. 1013 

(D.C. App. 1923) or request a Frye hearing. While it is true that Forbes did 

not file such a motion or request, Forbes objected to admission of the LOC 

test both pre-trial and when Officer O’Brien testified about the test, arguing 

that the LOC test was inadmissible because of its similarity to the HGN test. 

When Forbes objected, the trial court found, without considering expert 

testimony, that the LOC and HGN tests were not similar and, without further 

argument, allowed Officer O’Brien to lay a foundation for the LOC test. N.T., 

8/24/16, at 4-7, 38-39. While Forbes could have lodged a more specific 

objection to the LOC evidence, under these circumstances we conclude that 

Forbes has preserved her challenge pursuant to Pennsylvania Rule of 

Appellate Procedure 302.

We further note that the Pennsylvania Supreme Court recently 

amended the comment to Pennsylvania Rule of Criminal Procedure 578, 

which addresses omnibus pre-trial motions, to state that, effective January 

1, 2018, motions in limine “proposing or opposing the admissibility of 

scientific or expert evidence” should be addressed in an omnibus pretrial 

motion. In re: Order Revising the Comment to Rule 578 of the 

Pennsylvania Rules of Criminal Procedure, No. 494 Criminal Procedural 

Rules Docket (Pa. filed Sep. 21, 2017). The comment notes that “[g]iven 

the potential complexity when the admissibility of such evidence is 

challenged, such challenges should be raised in advance of trial as part of 

the omnibus pretrial motion if possible.” Id. However, the comment also 

notes that “nothing in this rule precludes such challenges from being raised 

in a motion in limine when circumstances necessitate it.” Id.
J-S37024-17

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Forbes argues that the trial court erred in admitting the results of the 

LOC test as substantive evidence. We apply the following standard of review 

in such matters:

[T]he admissibility of evidence is a matter addressed to 

the sound discretion of the trial court and . . . an appellate 

court may only reverse upon a showing that the trial court 

abused its discretion. An abuse of discretion is not a mere 

error in judgment but, rather, involves bias, ill will, 

partiality, prejudice, manifest unreasonableness, or 

misapplication of law.

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa. Super.) (internal 

quotations omitted), app. denied, 124 A.3d 308 (Pa. 2015). Further, if

it is determined that the trial court erred in admitting the 

evidence, the inquiry becomes whether the appellate court 

is convinced beyond a reasonable doubt that such error 

was harmless. Harmless error exists where: (1) the error 

did not prejudice the defendant or the prejudice was de 

minimis; (2) the erroneously admitted evidence was 

merely cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; 

or (3) the properly admitted and uncontradicted evidence 

of guilt was so overwhelming and the prejudicial effect of 

the error was so insignificant by comparison that the error 

could not have contributed to the verdict.

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (internal 

citations omitted).

Forbes asserts that the trial court incorrectly determined that the LOC 

test is different from the HGN test. Forbes notes that this Court has 

determined that the HGN test is novel scientific evidence, the admissibility of 

which depends on expert testimony pursuant to Commonwealth v. Topa, 

369 A.2d 1277 (Pa. 1977), which adopted the standard announced in Frye 
J-S37024-17

- 4 -

v. United States, 293 F. 1013 (D.C. App. 1923). According to Forbes, the 

LOC and HGN tests are similar and, as a result, the trial court should have 

required the Commonwealth to present evidence that the LOC test has 

gained general acceptance in the scientific community. However, we need 

not reach this question.

Even if Forbes were correct that the trial court improperly admitted 

this evidence, we conclude any error was harmless because the 

uncontradicted evidence of guilt was overwhelming. 

Section 3802(d)(2) of the Vehicle Code 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. § 3802(d)(2). A person may be convicted under this subsection 

where the Commonwealth proves that person “was under the influence of a 

drug to a degree that impairs [the person’s] ability to safely drive[] or 

operate a vehicle.” Commonwealth v. Williamson, 962 A.2d 1200, 1204 

(Pa.Super. 2008). “Section 3802(d)(2) does not require that any amount or 

specific quantity of the drug be proven in order to successfully prosecute 

under that section.” Id. (emphasis in original).
J-S37024-17

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Here, the record shows that Forbes swerved into a lane of oncoming 

traffic, forcing another vehicle off the road to avoid a collision. When Officer 

O’Brien made contact with Forbes, she was swaying, nodding off, and 

speaking so softly that she could barely be heard. In addition, when Officer 

O’Brien re-approached and tried to return Forbes’ license and paperwork to 

her, Forbes failed in her effort to grab the documents. Forbes also admitted 

to Officer O’Brien that she had taken numerous narcotics, including fentanyl, 

Dilaudid, gabapentin, and Zoloft. Further, Forbes failed two other field 

sobriety tests and when she attempted to perform the LOC test, Officer 

O’Brien terminated the test because he feared that Forbes would fall and 

injure herself. While Forbes has well-documented medical issues and 

presented an expert witness who concluded that Forbes could safely drive 

because she should have built up a tolerance to these medications, the 

Commonwealth’s evidence overwhelmingly showed that Forbes was under 

the influence of a combination of drugs to a degree that impaired her ability 

to safely drive an automobile. Given this overwhelming evidence, any error 

in the trial court’s consideration of a possibly inadmissible sobriety test was 

harmless.

Judgment of sentence affirmed.
J-S37024-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2017
24, 2016 of the following: DUI: Controlled Substance - Impaired Ability - l" 

Appellant was found guilty in a non-jury trial that occurred on August 

PROCEDURAL HISTORY 

This Court now issues 

"I i· ·- 

;t>ec~~t,er 5, 2016, the Appellant filed the statement. 

c... == ~_j 

(/). 

\.fhis q:g25(a) Opinion. 

_, ,,._ ::C- 

~ o::::: 

.""") 0 L..J 

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u 

c-Appellant to file a Concise Statement of Matters Complained of on Appeal. On 

0 ~n 

November 15, 2016, and pursuant to Pa. R.A.P. 1925(b), this Court directed 

Tambourino, Esquire, appeals to the Superior Court of Pennsylvania. On 

Appellant, Rita Forbes, by and through her attorney, Anthony J. 

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa.R.A.P. 1925{a) 

RITA FORBES, 

Appellant/Defendant 

v. 

COMMONWEALTH OF NO. CP-67-CR-8132-2015 

PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, 

PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 10/12/2017 10:00 AM
2 

5. Whether the trial court erred in denying the Appellant's request 

4. Whether the great weight of the evidence warrants a new trial 

given that the evidence of intoxication was ... weak and that it 

failed to rebut Appellant's expert testimony that she was not 

impaired based on her prescription medication and other 

medical issues? 

3. Whether the Commonwealth ... present[ed] sufficient evidence 

of Appellant's intoxication give that the uncontradicted [sic] 

testimony from the Appellant's expert was that Appellant could 

not have been impaired based on her prescription medication 

and no other evidence provided sufficient proof of impairment 

beyond a reasonable doubt? 

2. Whether the trial court erred in admitting lack of convergence 

test (LOC) test as it is a variation of the horizontal gaze 

nystagmus (HGN) test, which is not admissible, as both tests 

are used to gauge the eye's ability to track an object in order to 

determine the possibility of intoxication? 

1. Whether the trial court erred in denying Appellant's request for 

a Frye Hearing on the scientific reliability of the lack of 

convergence (LOC) test as used by police officers to determine 

whether a motorist may be driving under the influence? 

The Appellant states and raises the following grounds for error on appeal: 

MATTERS COMPLAINED OF ON APPEAL 

September 2, 2016, which was denied on October 6, 2016. 

Offense and Careless Driving. The Appellant filed a Post-Sentence Motion on 
3 

1 Beside the term "whether" and the question marks, these matters are quoted from 

Appellant's Statement of Errors Complained Pursuant to PaR.A.P. 1925(b) (filed December 

5, 2016). 

2 N.T., Non-Jury Trial, August 24, 2016, pg. 4. 

3 Id. at 6. 

4 Id at 8-9. 

Wilson A venue and Ridge A venue Intersection. 4 The Defendant, who was the 

that on July 31, 2015 at around 9:20 p.m., he was driving north toward the 

Then, the Commonwealth called Bradley Grove to testify. Grove testified 

lack of convergence ("LOC") test during trial. 3 

determination when and/or if the Commonwealth brought up the results of the 

there was a distinction between the HGN test and LOC test, but would make the 

of this test.' After argument from the Commonwealth, this Court noted that 

in limine to exclude testimony about the lack of convergence test and the results 

Immediately prior to trial, Counsel for the Defense made an oral motion 

section of this opinion. 

background information that will be referenced in the following "Discussion" 

This Court will now discuss a brief summary of the relevant factual 

BACKGROUND 

to enter the ARIDE manual into evidence given that it was a 

self-authenticating document pursuant to Pa.R.E. 902?1 
4 

5 Id. at 9, 19. 

6 Id. at 13-14. 

7 Id. at 9. 

8 Id. at 19-20. 

9 Id. at 9, 17. 

IO]d. at 14. 

which is based on DUis where "there's an interaction of alcohol and drugs or 

the academy and standardized field sobrietytraining and ARIDE training, 

Officer O'Brien has training in DUI investigations, including initial training at 

Officer Joseph O'Brien was dispatched to the scene of this accident. 

toward Grove's car.10 

nothing in the roadway that would cause Appellant to drive in the wrong lane 

and the Appellant was the driver of the. car.9 Grove indicated that there was 

lane after she was in Grove's lane. 8 The Defendant's car had stopped as well, 

the curb and back onto the road.7 Appellant had turned right, out of Grove's 

Grove had to jump the curb along the right side, through the grass, and then off 

the road and headed straight toward Grove.6 To avoid the Defendant's car, 

toward Grove.5 The Defendant's car moved all the way over to Grove's side of 

then made a U-Turn in the middle of the street and headed back in the direction 

driver of the vehicle ahead of Grove, started to tum left at the intersection, but 
5 

11 Id. at 23. 

12 Id. at 24. 

13 Id. at 24-25. 

14 Id. at 25. 

15 Id. at 28. 

16 Id. 

,1 Id. 

voice would become quieter and trail off.17 As her voice was trailing off, "her 

balance as far as standing still."16 As Officer O'Brien would talk to her, her 

back and forth, side to side, kind of in circles. She just couldn't keep her 

her speech was a little slurred.15 "[S]he couldn't stay still. She was swaying 

speaking softly and slowly to the point that it was hard for him to hear her, and 

In regard to Appellant's behavior, Officer O'Brien testified that she was 

also taken into account." 

being impaired or why they are behaving a certain way."13 Someone's driving is 

speech, any signs from the body, anything that going to dictate why they are 

mental issues."12 Specifically, he looks for "balance issues, coordination, 

that be lack of sleep, being tired, exhaustion, physical impairments, or any other 

their alcohol or drug or a combination of drugs and not anything else, whether 

that are looked for in a DUI, including "any evidence that they are impaired by 

combination of drugs. 

11 Officer O'Brien testified that there are multiple things 
6 

18 Id. at 28-29. 

19 Id. at 29. 

20 Id. 

21 Id. 

22 Id. at 30. 

23 Id. at 30-31. 

when she tried to grab them at first.23 

insurance, she reached to grab the papers, but she completely missed them 

drugs."22 When Officer O'Brien handed back her license, registration and 

dealing with other people that are under the influence of medications and 

medical issue or physical impairment, based on his training and "experience in 

Officer O'Brien did not think that her behavior was a direct result of the 

Appellant had told Officer O'Brien about medical issues that she had, but 

concerned that she would fall.21 

to four inches in any one direction, to the point that Officer O'Brien was 

DUis that he had investigated previously. 20 In fact, Appellant was swaying two 

said that there was a greater amount of swaying than what was normal for other 

when a person is taking opiates. 19 In regard to the swaying, Officer O'Brien 

O'Brien, this type of behavior is called "on the nod," and it is commonly seen 

head would go down, and her eyes would shut."18 According to Officer 
7 

24 Id. at 31. 

zs Id. 

26 Id. at 32. 

27 Id. at 33-34. 

Rhomberg balance test, the finger-to-nose test and the lack of convergence test, 

Officer O'Brien conducted four field sobriety tests, including: the 

especially the Fentanyl."27 

falling in line with what [he] would expect out of some of those medications, 

about from [Grove] .... [A]s well as the behavior that [he] was seeing, it was 

drugs and that they were playing a part in the bad driving that [he] had heard 

because there were "multiple indications that she was under the influence of the 

Then, Officer O'Brien conducted field sobriety tests with the Appellant 

prior; 4 milligram Dilaudid, 800 milligram Gabapentin, and Zoloft.26 

dermal patch that is a three-day extended release), which she took two days 

O'Brien that she was taking the following: 100 microgram ofFentanyl (a 

controlled substances and medications cause this.25 Appellant told Officer 

and licking her lips like she had dry mouth.24 Officer O'Brien stated that a lot of 

Officer O'Brien also observed Appellant acting slowly, and smacking 
8 

28 Id. at 34, 35. 

29 Id. at 35-36. 

30 Id. at 37. 

31 Id. at 57. 

32 Id. at 37. 

33 Id. 

their nose and immediately puts it back out. 33 This process is then done a few 

put it immediately back out to the side, and then the other hand's finger touches 

person then touches their nose with the corresponding hand's finger and then 

the officer tells the person to start with either their left or right hand. 32 The 

instructed to "stand with their arms out to their sides and close their eyes" and 

Appellant also failed the finger-to-nose test which is when the person is 

between 25 and 35 seconds for that part of the test." 

20 seconds, Appellant opened her eyes." An acceptable response time is 

During the Rhomberg test, Appellant was swaying, counting out loud, and, after 

instructed to pay attention to the instructions, and at that point in 

time, they are asked to on command place their head back, close 

their eyes with their hands by their sides, and estimate the passage 

of30 seconds [without counting out loud]. Once they believe 30 

seconds have passed, put their head forward, open their eyes and 

saw the word done. "29 

Appellant failed the Rhomberg test, which is when the person is 

which focus on drug impairment, although they can show alcohol impairment." 
9 

34 Id. at 37. 

35 Id. at 37-38. 

36 Id. at 38. 

37 Id. at 38-39. 

38 Id. at 39. 

39 Id. at 39-40. 

experience with the LOC test. 39 

the Commonwealth to lay a foundation for Officer O'Brien's training and 

expertise that [Officer O'Brien] doesn't have." 38 Though, this Court instructed 

anything that suggests that the lack of convergence test requires a degree of 

Defendant did not have any case law, and this Court noted that he has not "seen 

and that it "is more than just nystagmus that's being tested."37Counsel for the 

Defendant had any case law and noted that HGN is different from the LOC test 

HGN test, which is inadmissible."36 This Court asked if counsel or the 

HGN. It's an eye test, so I'm arguing that it's essentially a continuation of the 

Counsel for the Appellant objected saying that "it's essentially similar to the 

As Officer O'Brien began to discuss the lack of convergence test, 

out." 

would keep her hand on her nose rather than immediately putting her hand back 

times.34 During this test, Appellant did not follow the directions because she 
10 

40 Id. at 40. 

41 Id at 40-41. 

42 Id. at 62. 

43 Id. at 41. 

44 Id. 

some sort of controlled substance or a multitude of different drugs, so she was 

Officer O'Brien concluded that Appellant "was under the influence of 

[ Appellant would] follow it a second, and she'd just lose focus. "44 

Officer O'Brien was not able to complete the LOC test because Appellant "was 

l.' 

unable to follow the stimulus. [Officer O'Brien would] move the pen, and 

officer is observing whether the person's eyes converge or cross. 

43 At first, 

stimulus, and when the officer brings the pen close to the person's face, the 

marijuana.42 The purpose of this test is to have the person's eyes track the 

done.?" Specifically, the lack of convergent test is drug specific for 

follow the stimulus at all times until [Officer O'Brien] tell[s] them the test is 

[Officer O'Brien] use[s] the tip of [his] pen, and ... instruct[s] the [person] to 

that the LOC test is "where you have a subject follow a stimulus, specifically 

explained that the LOC test is for a certain drug that is being looked for, and 

part of Officer O'Brien's training at the ARIDE school.t" Officer O'Brien 

Officer O'Brien testified that the LOC test (and the Rhomberg test) was a 
11 

45 d L . at 42. 

46 Id. at 43. 

47 Id. 

48 Id. at 68. 

medical toxicologist who testified that if the Appellant was consistently taking 

stipulated to be an expert in the field of medical toxicology.48 Dr. Guzzardi is a 

The defense brought Dr. Lawrence Guzzardi to testify, who was 

car to drive that night.47 

he would not have been at all comfortable in letting Appellant get back into her 

that position steady at all in any situation.?" Lastly, Officer O'Brien noted that 

would just sway back and forth, side to side, in a circle. She wasn't able to keep 

in one spot, not asking her to move, not asking her to manipulate anything, she 

medical issues, but he clarified that "even when [he] just had her standing still 

Officer O'Brien noted that he knew Appellant had balance issues due to 

everything that [he] observed, the report of the driving that she 

had, [his] interactions with her, her speech, her mannerisms, her 

behavior, her lack of balance, her lack of ability to perform simple 

tasks as far as following a stimulus, following instructions on tests, 

she just wasn't able to put that all together. [He] felt that it was 

more than a physical injury for'sure." 

on 

placed under arrest for driving under the influence." This conclusion was based 
12 

49 Id. at 69-85. 

50 Id. at 95. 

51 Id. at 96-97. 

52 Id. at 97. 

53 Id. at 99. 

Guzzardi or problems communicating, although she was soft-spoken. 53 Dr. 

on the day of the trial, she did not have problems paying attention to Dr. 

Dr. Guzzardi admitted that when he had observed and talked to Appellant 

Officer O'Brien, she could also have experienced negative effects.52 

consumed much more of the Dilaudid and Fentanyl patch, than what she told 

accident. .. she would have been under the influence. "51 Also, if she had 

diverted them for some way and suddenly started taking them on the day of the 

Guzzardi, if Appellant had gotten the "prescriptions, and didn't take them, 

as well as medical records if they had specific notations.i" According to Dr. 

"actually took those substances at the levels that she indicated" to [the] officer," 

incident in question. 

49 Dr. Guzzardi's conclusions assumed that Appellant 

such that she would be able to drive without impairment at the time of the 

would have had built up a tolerance to the negative side effects of the drugs, 

her medication as prescribed (Fentanyl, Dilaudid, Gabapentin and Zoloft.), she 
13 

54 Id. at 99. 

55 Id. at 69. 

56 Id. at 76. 

57 Id. at 78. 

58 Id at 83. 

59 Id at 103. 

60 Transcript of Post Sentence Motion hearing at 2, Commonwealth v. Forbes (Octobe; 6, 

2016). 

manual would get into evidence now and that the manual does not necessarily 

which was not done during trial. 60 This Court questioned how the ARIDE 

counsel for the Defense wanted the ARIDE manual entered into evidence, 

,;,. 

During the post-sentence motion hearing, in addition to other arguments, 

clearer, not trailing off with her sentences and that she was not "on the nod."59 

Officer O'Brien testified that Appellant was more attentive on the day of trial, 

The Commonwealth then called Officer O'Brien to testify again and 

quantities,57 and Zoloft can also cause sedation when it is initially taken.58 

dysphoria, and sedation. 56 Gabapentin can also cause sedation in high 

its negative side effects, like Fentanyl, include, in the initial phases, euphoria or 

inability to follow commands and sleepiness.55 Dilaudid is also a narcotic and 

Fentanyl is a narcotic, with negative potential side effects of sedation, an 

abused by patients, but Gabapentin abuse was unlikely.54 

... 

Guzzardi also testified that the medications that Appellant was taking can be 
14 

61 Id. at 5. 

62 Id. 

63 Id. at 6. 

64 Jd. 

65 Id. at 7. 

that the Court should not just look at the manual (which came in with the postof the ARIDE manual compared to the HGN test.65 This Court also pointed out 

The Commonwealth pointed out that the LOC test was in a different part 

any cases specific to the LOC test.64 

scientific expert testify, which Defense Counsel admitted that there were not 

community or that it was identical to the HGN test and that it should have a 

again requested case law that the LOC test was not accepted by the scientific 

presented, that it wouldn't have been prejudicial to the Defendant."63 This Court 

been harmless error since it was "similar enough to other evidence that was 

if they were found to be the same, the introduction of the evidence would've 

how someone's pupils react to light or whether or not they cross, and that, even 

Commonwealth pointed out that Officer O'Brien could certainly testify about 

Commonwealth agreed to it, which the Commonwealth did not. 62 The 

Though, this Court was willing to admit the ARIDE manual into evidence if the 

prove the Defense Counsel's point that the LOC test is just like the HGN test.61 
15 

66 Id 

67 Id. at 9. 

68 Id. at 11. 

methodology that underlies the evidence has general acceptance in the relevant 

Under the Frye test, "novel scientific evidence is admissible if the 

1. In response to Appellant's first ground for the Appeal, the Appellant never 

requested a Frye Hearing, and, so the issue is waived. 

This Court will now address Appellant's grounds for the appeal, in order. 

DISCUSSION 

not to admit the manual. 68 

Commonwealth would not stipulate to this at the hearing, so the Court decided 

the ARIDE manual to come in at the post-sentence motion hearing, and the 

Further, Defense Counsel did not get the trial attorney's stipulation for 

simple tasks."67 

the facts that we heard, her behavior, her driving, her inability to perform even 

cumulative weight of Dr. Guzzardi's opinion and took into consideration all of 

The Court also pointed out that he "was fairly under whelmed by the 

Court to read it.66 

evidence by just handing the manual to the Court the manual and telling the 

sentence motion), and that it was an incorrect action to enter the manual into 
16 

69 Commonwealth v. Einhorn, 911 A.2d 960, 974-975 (Pa. Super. Ct. 2006). 

70 Id. at 975. 

11 Id. 

72 Id. (Citing Pa.R.A.P., Rule 302(a); the Court concluded that "Thus, because of 

Einhorn's failure to preserve this claim in the trial court, the issue is waived.") 

LOC's test general acceptance in the scientific community. As indicated in the 

trial did Defense counsel present testimony from medical experts about the 

even mention Frye until the Defense's Post-Sentence Motion. At no point in 

Based on a review of the record, here, Counsel for the Defense did not 

court are waived and cannot be raised for the first time on appeal."72 

waived because of the general rule, which is that "issues not raised in the lower 

prior to this appeal.'!" The court concluded that this ground for the appeal was 

time did Einhorn seek to preclude the testimony based on a Frye assessment 

questioned the acceptability of [Dr. Guzzardi's] utilized method; however, at no 

impeach [Dr. Guzzardi] through cross-examination in which trial counsel 

hearing.':" Further, during the trial in that case, the Appellant "attempted to 

Guzzardi 's] testimony on the basis of Frye, nor did he request a Frye 

that case "never filed a motion in limine seeking to preclude ... [Dr. 

that certain testimony wasn't admissible under Frye. However, the Appellant in 

scientific community.t''" In Commonwealth v. Einhorn, the Appellant claimed 
.t 

17 

73 Commonwealth v. Cox, 115 A.3d 333, 336, appeal denied, 124 A.3d 308 (Pa. 2015) 

(internal citations omitted). 

counsel had not provided any case law that supported that the lack of the 

Here, as indicated in the Background section of this opinion, Appellant's 

'[T]he admissibility of evidence is a matter addressed to the sound 

discretion of the trial court and ... an appellate court may only 

reverse upon a showing that the trial court abused its discretion.' 

'An abuse of discretion is not a mere error in judgment but, rather, 

involves bias, ill will, partiality, prejudice, manifest 

unreasonableness, or misapplication of law. 73 

The standard on the admissibility of evidence is as follows: 

2. In response to Appellant's second ground for the appeal, this Court did 

not err when it admitted the lack of convergence test. 

this ground for the appeal meritless. 

hearing, and, so, this Court respectfully requests that the Superior Court find 

issue was waived because the Defense counsel never timely requested a Frye 

Frye hearing prior to trial, this Court may have entertained it. However, this 

a separate section from the HGN test. Had Counsel for the Defense requested a 

the scientific community was an ARIDE manual, in which the LOC test was in 

offered to support its conclusions about the LOC test's general acceptance in 

Background section of this opinion, Counsel for the Defense's only materials 
18 

74 Commonwealth v. Stringer, 451 Pa. Super. 180, 183, 678 A.2d 1200, 1201--02 (1996). 

ts Id. 

requires that an adequate foundation be set forth establishing that HGN testing 

admission of the HGN test, the standard is as follows: "Pennsylvania law 

that alcohol consumption causes nystagmus .... Therefore, an adequate 

foundation must be presented prior to admi;:sion ofHGN test results." 75 For the 

HGN test results are scientific evidence "based on the scientific principle 

the driver is asked to cover one eye and focus the other on an 

object (usually a pen) held by the officer at the driver's eye level. 

As the officer moves the object gradually out of the driver's field 

of vision toward his ear, he watches the driver's eyeball to detect 

involuntary jerking. The test is repeated with the other eye. By 

observing (1) the inability of each eye to track movement 

smoothly, (2) pronounced nystagmus at maximum deviation and 

(3) onset of the nystagmus at an angle less than 45 degrees in 

relation to the center point, the officer can estimate whether the 

driver's blood alcohol content (BAC) exceeds the legal limit of .10 

percent.74 

During the HGN test, 

admitted that there was no case law that said it was the same. 

the scientific community. In fact, as indicated above, Counsel for the Appellant 

convergence test was the same as the HGN test, or that it was unacceptable in 
19 

is generally accepted in the scientific community, including the medical science 

field of ophthalmology." 76 

The LOC test, as described by Officer O'Brien in his testimony which is 

found in the Background section of this opinion, is distinctive from the HGN 

test and no testimony was put into the record stating that it was the same as the 

HGN test or that it was not accepted by the scientific community, and Appellant 

had not requested a Frye hearing to show that it was not accepted by the 

scientific community. Unlike the HGN test, no case law establishes that the 

LOC test results are deemed to be scientific evidence. 

Further, there is no evidence that the admission of the LOC test involved 

bias, ill will, partiality, prejudice, manifest unreasonableness or a 

misapplication of law. Had the LOC test not been admitted, there was still 

sufficient evidence to find that Appellant was intoxicated and would not have 

changed the outcome of the case. As such, this Court respectfully requests that 

the Superior Court find that this Court did not abuse its discretion to admit the 

LOC test and find this ground for the appeal meritless. 
20 

77 Commonwealth v. Widmer, 744 A.2d 745, 751 (P'a. 2000)(intemal citations omitted). 

78 Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. Ct. 2012)(citing Commonwealth v. 

Markman, 916 A.2d 586, 598 (2007)). 

evidence.78 The Commonwealth "need not preclude every possibility of 

In proving its case, the Commonwealth may rely solely on circumstantial 

Evidence will be deemed sufficient to support the verdict when 

it establishes each material element of the crime charged and 

the commission thereof by the accused, beyond a reasonable 

doubt. Where the evidence offered to support the verdict is in 

contradiction to the physical facts, in contravention to human 

experience and the laws of nature, then the evidence is 

insufficient as a matter of law. When reviewing a sufficiency 

claim the court is required to view the evidence in the light 

most favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence. 

77 

follows: 

evidence. The standard used to analyze a sufficiency of the evidence claim is as 

insufficient to find Appellant guilty ofDUl. We find that there was sufficient 

Appellant contests that the evidence of Appellant's intoxication was 

-r 

3. In response to Appellant's third ground for the appeal, the 

Commonwealth presented sufficient evidence of Appellant's 

intoxication to find Appellant guilty of DUI: Controlled Substance - 

Impaired Ability - P' Offense beyond a reasonable doubt 
21 

79 Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. Ct. 2015). 

80 Id. 

81 Commonwealth v. Lambert, 2002 PA Super 82, ,i 5, 795 A.2d 1010, 1014 (2002) 

In Williamson, a police officer found the driver slumped over the 

steering wheel and observed that she had bloodshot eyes, was 

relevant case law: 

The Superior Court in Commonwealth v. Terrach summarized the 

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. ·. 

Impaired Ability - l" Offense is defined as follows: 

According to the Pennsylvania statute, DUI: Controlled Substance - 

produced, is free to believe all, part or none of the evidence."81 

passing upon the credibility of witnesses and the weight of the evidence 

circumstances."80 As the fact-finder in a non-jury trial, the judge, "while 

as a matter of law no probability of fact may be drawn from the combined 

resolved by the fact-finder unless the evidence is so weak and inconclusive that 

innocence."79 If there is doubt about a Defendant's guilt, the doubt "may be 
82 Commonwealth v. Tarrach, 2012 PA Super 82, 42 A.3d 342, 346 (2012). 

22 

and Appellant's admission to Officer O'Brien that she was taking those 

about Appellant's behavior and inability to complete any of the sobriety tests, 

into Mr. Grove's side of the lane towards Grove, Officer O'Brien's testimony 

offense. Specifically, Mr. Grove's testimony about Appellant's erratic driving 

there was sufficient evidence for this Court to find the Appellant guilty of this 

As indicated by the evidence in the Background section of this opinion, 

DUI: Controlled Substance - Impaired Ability- l" Offense. 

verdict winner, we find there was sufficient evidence to find Appellant guilty of 

When viewed in the light most favorable to the Commonwealth as the 

lethargic, and had slow, incoherent speech. Williamson, 962 A.2d 

at 1201-02. The driver failed two field sobriety tests. A urine 

screen was positive for prescription drugs. Id. at 1202. We held 

that testimony of erratic driving, coupled with proof that drugs 

were present, were together sufficient to prove that the operator's 

ability to drive safely was impaired. Id. at 1204. More recently, in 

Griffith, witness observations of erratic driving, police 

observations of the driver, failed field sobriety tests, and 

prescription drugs in the driver's system, together sufficed to prove 

driving under the influence. Griffith, 32 A.3d at 1233-34. Our 

Supreme Court held that the relevant inquiry was whether the 

drugs in the driver's system were impairing the person's ability to 

drive. The Court found that police observations and a failed 

sobriety test sufficed to satisfy the inquiry, even without expert 

testimony. Id. at 1240."82 
prescriptions. 

This Court acknowledges that Appellant was on multiple medications 

and had physical problems that may have affected her balance. However, 

Officer O'Brien's testimony that Appellant had balance problems standing still 

to the degree that she was swaying almost four inches while standing still, her 

inability to pick up a paper and other behaviors indicated narcotics use. 

Interestingly Officer O'Brien had also pointed out that Appellant's behavior 

was worse than many DUI's that Officer O'Brien had observed. Based on all of 

the evidence, Appellant was too impaired to drive. 

This Court did take into careful consideration Dr. Guzzardi's testimony, 

however his testimony was underwhelming. As discussed in the Background 

section of this opinion, Dr. Guzzardi indicated that the variety of medications 

that Appellant was on could cause impairment to a person when driving if they 

had not built up a tolerance to the medication, if they had stopped the 

medication and resumed at a later time, or if they had taken more than the 

recommended dose. Dr. Guzzardi could not testify to how much Appellant 

was, in actuality, taking of each medication or whether or not she was taking 

the medication consistently such that she would have a tolerance to the 

23 
24 

83 Commonwealth v. Widmer, 744 A.2d at 751 (stating that "(a] claim challenging 

the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy 

provisions of the Fifth Amendment to the United States Constitution, and Article I, § l O of 

the Pennsylvania Constitution, whereas a claim challenging the weight of the evidence if 

granted would permit a second trial.") (internal citations omitted). 

the evidence challenges in non-jury trials is as follows: 

from a challenge to the sufficiency of the evidence.83 The standard for weight of 

the weight of the evidence. A challenge to the weight of the evidence is distinct 

weight of the evidence. This Court finds that the conclusion did not go against 

Appellant contends that finding Appellant guilty of DUI went against the 

4. As to Appellant's fourth ground for the appeal, the finding of guilty was 

not against the weight of the evidence on the DUI offense. 

find Appellant guilty of this offense beyond a reasonable doubt. 

Appellant incapable of driving safely, and thus there was sufficient evidence to 

evidence to conclude that Appellant's combination of medication rendered 

Appellant was impaired. Based on all of the evidence, there was sufficient 

and actions, as testified to by Grove and Officer O'Brien clearly indicated that 

Appellant was clearly taking multiple drugs and Appellant's behavior 

medication's side effects. 
25 

84 Commonwealth v. Karns, 2012 PA Super 154, 50 A.3d 158, 165 (2012) (quoting 

Commonwealth v. Houser, 610 Pa. 264, 276, 18 A.3d 1128, 1135-36 (2011)). 

will not disturb the verdict. 

whether to find the testimony of the witnesses credible. Therefore, the Court 

the evidence or abused its discretion. It was within this Court's discretion 

convictions, and there is no reasonable argument that this Court mis-weighed 

As described above, the evidence was sufficient to support the 

A claim alleging the verdict was against the weight of the evidence is 

addressed to the discretion of the trial court. Accordingly, an appellate 

court reviews the exercise of the trial court's discretion; it does not 

answer for itself whether the verdict was against the weight of the 

evidence. It is well settled that the [fact-finder] is free to believe all, part, 

or none of the evidence and to determine the credibility of the witnesses, 

and a new trial based on a weight of the evidence claim is only warranted . where the [ factfinder's] verdict is so contrary to the evidence that it 

shocks one's sense of justice. In determining whether this standard has 

been met, appellate review is limited to whether the trial judge's 

discretion was properly exercised, and relief will only be granted where 

the facts and inferences of record disclose a palpable abuse of 

discretion. 84 
26 

85 Pa. R. Evid. 902. 

86 Commonwealth v. Cox, 115 A.3d 333, 336, appeal denied, 124 A.3d 308 (Pa. 2015) 

(internal citations omitted). 

Court was willing to enter it into evidence if the Commonwealth agreed, the 

counsel's method to admit the manual into evidence was improper. While the 

necessarily prove that the HGN test and LOC test were the same, and defense 

As the Background section in this opinion discusses, the manual does not 

'[T]he admissibility of evidence is a matter addressed to the sound 

discretion of the trial court and ... an appellate court may only 

reverse upon a showing that the trial court abused its discretion.' 

'An abuse of discretion is not a mere error in judgment but, rather, 

involves bias, ill will, partiality, prejudice, manifest 

unreasonableness, or misapplication of law. 

86 

evidence is as follows: 

Like the second ground for the appeal, the s~andard on the admissibility of 

pamphlet, or other publication purporting to be issued by a public authority."85 

authenticity in order to be admitted: ... "official Publications. A book, 

evidence is self-authenticating; they require no extrinsic evidence of 

Under the Pennsylvania Rules of Evidence, "the following item ... of 

5. In response to Appellant's fifth ground for the appeal, this court did not err 

when it did not admit the ARJDE manual. 

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27 

verdict. 

find Appellant's first ground for the appeal meritless and to affirm the jury 

In conclusion, this Court respectfully requests that the Superior Court 

CONCLUSION 

for the appeal meritless. 

reasons, this Court respectfully requests that the Superior Court find this ground 

prejudice, manifest unreasonableness or a misapplication of law. For the above 

evidence of the ARIDE manual did not involve bias, ill will, partiality, 

manual into evidence after the trial had occurred. Denying the admission into 

Here, it was in this Court's discretion whether or not to admit the ARIDE 

pointed out that those tests were in separate sections in the ARIDE manual. 

that the HGN test and LOC test were the same and the Commonwealth even 

Commonwealth did not. The Defense Counsel could not provide any case law