J - S37024 - 17

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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 con trolled 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.

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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 horizont al 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.

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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 unde r 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 similari ty 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 scie ntific 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 n otes 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 t he 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 u pon 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.3 d 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 reasonabl e 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 substantial ly 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 t he 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 FryeJ - S37024 - 17

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v. United States , 293 F. 1013 (D.C. App. 1923). Acc ording 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 qu estion. 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) Controlle d 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 i nfluence 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’Brie n 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, Offi cer 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 to lerance 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

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### 5. Whether the trial court erred in denyi n g the Appellan t ' s request 4. Whether the great we i ght of the ev id ence warrants a new trial given that the evi d ence of intoxication was .. . weak and that it fai l ed to reb u t Appellant's expert tes timony that she was not impaired based on her prescriptio n medication and other medical issues? 3. Whether th e Commo n wealth ... p r esent [ e d ] sufficient ev i de n ce of Appellant's intoxicatio n give that the uncontr adicted [ sic] testimony from the Appellant's expert was th at Appe ll an t could not have bee n impaire d based on h er p rescription medication and no other evidence provi d ed sufficie n t p roof of i mpairment beyond a reasonable do u bt? 2. Whether the trial court erred i n a d mitti ng lack of co n vergence test (L O C) test as it is a variation of th e horizontal gaze nystagmus ( H GN) test, which i s not admissible, as bo th tests are used to gauge the eye's ability to track an object i n o r d er to determi ne the poss ibility of i ntoxication? 1. Whether the trial court erred in denyi n g Appe ll ant's request for a Frye Hearing on the scie n tific reliab i l ity of th e l ack of convergence (L O C) test as use d b y police officers to d etermi n e whether a motorist may be dri ving unde r th e influence? The Appellant states and raises the following grounds for error on appeal : MATT E R S COMPL

AINE D OF O N APPEA

L September 2, 2016 , which was d enied on October 6, 2016. Offense and Careless Driving. T h e Appe ll ant fi l ed a Post-Se n tence Motion on3 1 B es ide the term " whether " and the question marks , the s e matter s are quot e d from App e llant ' s Statement o f Errors Comp l ained Pursuant to PaR.A.P . 1925(b ) (filed December 5 , 2 0 16 ) . 2 N . T. , N on - Jury Trial , August 24 , 2016, pg. 4. 3 I d. at 6 . 4 Id at 8

- 9. Wi lso n A venue and Ri d ge A venue Intersec tion. 4 The D efen d ant, who was th e that on Ju l y 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 ("L O C") test duri ng tri al. 3 determination when and/or if the Commo n weal th brought up th e res ul ts of the there was a distinction between th e HGN test an d LO C test, but would make the of this test .' After argument from the Commo n wealth, this Court noted th at in limine to e xclude testimony about the l ack of convergence test an d the results I mmediate l y pri or to trial, Counse l fo r the D efense ma d e an o r al motion section of this opinion . background information that will be referenced in the following "Discussion" Thi s Court wi ll now di scuss a brief summary of the relevan t factual 

### BA CKGRO UND to enter the ARID E manual into evidence g i ven th at it was a self

- authenticating document pur s uant to Pa . R .E. 902? 14 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, but5 11 Id. at 2 3. 12 Id . at 2 4. 1 3 Id . at 24

- 25. 14 Id. at 25. 1 5 Id. at 2 8 . 16 Id. ,1 I d. 

### vo i ce w ould b e com e quieter an d trail o ff . 17 

### A s h er v oi ce w as tr ailin g o ff, " h e r b al ance as far a s standing s till. " 1 6 

### A s Officer O ' Brien would talk t o her , h er b ac k and fo rth , s id e to s ide , kind of in c ircle s. She ju s t c ouldn 't kee p her h er s p e ech was a little s lurre d . 15 

### " [S]h e c ould n' t s tay still. She w a s sw ayi ng s p e aking s oftly and s lowly to the point that it wa s hard for him to hear he r , and In 

### r egar d t o Appellant' s behav ior , Offi ce r O ' Bri en te s tifi e d that s h e w a s al so t ake n i n to ac c ou n t. " b e in g impaired or wh y they are behav in g a certain way." 1 3 

### Som e one's dri v ing i s s p eec h , an y s igns from the b ody, an yth in g th at g oing to di c tate w h y the y are m e ntal i ss ue s . " 12 

### Specifically, he look s for "b alance i ss u es , coordination , th at be lack o f s leep , being ti r ed , exh au s tion , physical impairment s, or an y other th e i r alc o ho l or dru g or a comb ination o f dru gs and not anythin g e l se, whe ther th at are loo ke d for in a DUI , includin g " any ev id e nc e that they are impaire d by combination of dru gs . 11 

### Offi c er O'Brien testifi e d that there are multiple things6 18 Id . at 2 8

- 29 . 1 9 Id . at 29. 20 I d . 21 I d. 2 2 Id . at 30 . 2 3 Id . at 30-31. 

### w h en s h e tri e d to g rab them at fir s t . 23 

### in s uranc e , s h e reach e d to g r ab the paper s , but s he completely mi ss ed them dru gs." 2 2 

### Wh e n O f

ficer O ' B ri e n hand e d ba c k h er lic e n se, re gi s tration and dealin g with other p e opl e th at are under the infl ue nce o f m e di cations and m e di c al i ss u e or phy s i cal imp airment , ba s ed on hi s training and " experi e nc e in O ffice r O ' Bri e n did not think that her beh av io r w a s a direct r es ult of the App e llant h a d told Offic er O ' Bri e n about medi c al i ss ue s th at s he had, but concerned th at s h e would fall. 2 1 

### t o fou r in c h es in an y on e dire c tion , to th e point that Officer O'Brien w as DUi s that h e had in v e s tigated pre v iou s l y. 20 

### I n fa ct , Appellant was sw ay i ng two said that there wa s a greater amount o f s way ing than wh at wa s normal for other w h e n a p e r s o n i s taking opi ate s. 1 9 

### In r eg ard to th e s way in g, Offi c er O ' Bri e n O ' Brien , thi s ty pe o f b e hav ior i s call e d " on th e nod , " and it i s commonl y s een h ea d would g o down , and h er eye s would s hut. " 1 8 

### According to Officer7 2 4 Id. at 3 1. z s Id . 26 Id. at 3 2. 27 Id. at 3 3 -3 4 . Rhomb e r g balance tes t, the fing e r-to-no se tes t and the l a ck o f con ve r g enc e te s t , O fficer O ' Brien c ondu cted four field s obri e ty te s t s, including : the e s p ec i all y th e F entan y l. " 2 7 fallin g in lin e w ith w hat [h e ] would ex p e ct out of s ome of tho se medication s , abo ut fr om [Gro v e] . .. . [A] s w ell as the beh av ior th at [h e ] was see in g, it w as drugs and that th ey were pl ay in g a part in th e b a d dri v ing th at [he] h a d he ar d because th ere we re " mu l tipl e indi cation s th at s h e w as und e r the i n fluenc e o f th e Th e n , O ffice r O ' Brien c ondu c ted fie ld s obrie ty te s t s w ith the Appellant prior; 4 milli gr am Dilaudid , 800 milligram Gabap e ntin , an d Z o l oft . 2 6 d e rmal p atc h th at is a thre e-d ay e xtended re l ease ), w hich s h e took two d ays O ' B rien th at sh e was takin g th e followin g: 100 micro g r am of F en t an y l ( a co n troll e d substanc es and m e di cation s cau s e thi s. 25 App e llant told O f fic e r and li c kin g h e r lip s like s h e had dry mouth . 24 O f fic e r O ' Brien s tate d th at a lot o f O fficer O ' Bri e n al s o ob se rv e d App e llant a c tin g s lo w ly , and s m a cking8 28 Id. at 34, 35 . 29 Id . at 35

- 3 6 . 30 Id. at 37. 31 I d. at 5 7. 32 Id . at 37 . 33 Id . thei r nose and immediately puts it back out. 33 This proce s s is th e n done a few pu t it immediatel y back out to the s id e, and th e n the other hand 's finger t ouche s p er s o n then touch es th e ir no se with th e corre s p o ndin g hand 's fin ge r and then the officer te lls the person to start with either their left or right hand. 32 The ins tru cted to "s tand w ith th e ir arms out to th e i r s ide s and clo s e their e yes" and App e llant al s o failed the finger-to-no s e te s t which i s wh e n the per s on is between 25 and 35 s econds for that part of the 

### te s t ." 20 s e c ond s , Appellant opened her 

### e yes." An acceptable re s pon se time i s During the Rhomb e rg test , Appellant w a s swaying , counting out loud, and , after

ins tructed to pay attention to the in s truction s, and at that point in time , they are a s ked to on command place their head back , close their eyes with their hands by their s ides, and estimate the passage of30 se cond s [ w ithout counting out loud]. O n ce the y beli eve 3 0 s econd s hav e p ass ed , put their h ea d forward , open their e y e s and saw the word done. " 2 9 Appellant failed the Rhomberg te s t, which i s when th e person i s which focu s on dru g impairment, although they can show al cohol impairment ."9 34 Id . at 3 7 . 35 Id . at 3 7- 3 8 . 36 I d . at 3 8. 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 train i ng and e x pertise that [Officer O'Brien] doesn't have." 38 

### Though , this Court instructed anything that s uggests that the lack of convergence test requires a degree o f Defendant did not have any ca s e law, and this Court noted that he ha s not "s een and that it "is more than just nystagmus that's being tested. " 3 7 

### Counsel for the Defendant had any case law and noted that HGN is different from the LOC test HGN test, which is inadmissible . " 3 6 

### 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. 3 4 

### During this test, Appellant did not follow the directions becau s e she10 40 I d. at 40 . 41 Id at 40 - 4 1. 4 2 Id . at 6 2 . 4 3 Id . at 41. 4 4 Id . some sort of controlled sub s tance or a multi tude of different drug s, s o she was Officer O'Brien concluded that Appellant " was under th e influence of [ Appellant would] follow it a secon d , and she ' d just lose focus. " 4 4 Officer O'Brien was not able to complete th e LO C tes t because Appe ll ant "was l.' unab l e to follow the sti mulu s. [Officer O ' Brie n wou l d] move the pen , and officer is observing whether the person's eyes converge or cro s s. 43 At first , stimulus, and w h en the officer brings the pen close to the pe r son's face, the marijuana. 4 2 The purpose of this test is to have the per s o n ' s eyes track th e 

### done . ?" Specifically, the l ack of convergent test is drug specific for follow the stimulu s at all times until [Of fi cer O ' Bri en] tell[s] th em th e test is [Officer O ' Brien] use[ s ] the tip of [his ] pen, and . . . i n struct[s] the [ per s on ] to that the LOC te s t i s " where you have a s ubject follow a stimulu s, specifically explained that the LOC te s t i s for a certain drug th at is b eing looked for , and part of Officer O'Brien's training at the ARIDE s choo l .t " Officer O' B ri en Officer O ' Brien testified that the LOC te s t (and the Rhomberg test) was a11 4 5 d L
. at 42 . 4 6 Id . at 4 3. 47 I d. 48 Id . at 68 . 

### m e dic al t o x i co lo g i s t who tes tifi e d that i f th e App e ll ant was co ns i s ten tly t akin g s ti p u l ate d to be an ex p ert in th e fi e ld o f medical to x icolo g y . 48 

### Dr . Guz z ardi i s a Th e d efe n se brou g ht Dr . Lawren c e Gu zz ardi to te s tify , who was car t o drive th at nigh t. 47 

### he w o u ld no t h ave b ee n at all c omfortabl e in l e ttin g Appell ant ge t b ac k into h er that p o s i tion s t ea dy at all 

### in any s itu ation .?" La s tl y, O ffi c er O ' Bri e n note d that w o ul d ju s t s w ay b ac k and forth, s ide to s id e, in a circl e . She w as n ' t able to ke ep in o ne spot, no t a ski n g h e r to mo v e , not as kin g h er to m anipul ate anythin g, s he m e di cal i ss u es, but he cl ari fi ed th at "e v e n wh e n [he] ju s t h a d h er s tandin g s till Of fic er O ' Brie n no te d th at h e kn e w App e ll ant h a d b al an ce i ss ue s du e to

eve rythin g th at [he] ob s e rve d, th e report of th e dri v in g that s he h a d, [hi s ] i nter ac tio ns w ith her , h er s p e ech , her m anne ri s m s, h er b e h av ior , her l a ck o f balanc e, h er lack of abili ty to perform s imple t as k s as f

ar as followin g a s timulu s, followi ng in s truction s on te s t s, s h e j u s t wasn't abl e to put th at all to ge ther . [He] felt that it wa s m o re th an a ph ys i c al injury for 's ur e." o n pl ace d u n d er arres t for dri v in g under the influenc e." Thi s conclu s ion was b ase d12 4 9 Id. at 69

- 85 . 50 Id. at 95. 51 I d. at 96-97 . 52 I d . at 97 . 53 Id. at 99 . Gu zz ardi o r problem s communic atin g, although s he w a s s oft- s poken. 53 Dr . on the d ay of the tri al , s he did not hav e problem s pay ing attention to Dr. D r. Gu zzardi a dmitted that w hen he had ob s erved and talked to Appellan t Offi cer O ' B rie n, s he could al s o hav e e x perienced negativ e e ffects . 52 c on su med mu c h more of the Dil audid and Fentan y l patch , than what she told a c c iden t. . . s he w ould hav e be e n under the influence . " 5 1 Al s o , if s he had di v erted them for some way and s uddenl y s tarted taking them on the day of the Guzzar d i, if Appell ant had gotten the " prescription s , and didn ' t take them , as w ell as m e di c al record s if the y had specific notatio ns.i" According to D r. "ac tu all y t ook tho s e s ub s tance s at th e l ev el s th at s he indicated" to [the] officer, " inc ide nt in qu estion . 49 Dr. Gu z zardi 's conclusion s assumed that Appellant s u c h th at s h e w ould be able to dri v e without impairment at the time of the wo u l d h ave h ad built up a toleran ce to the n e gati ve s id e effect s of the dru gs, h e r me d ic ation as p re scribed (Fentan yl , Dilaudid, Gabapentin and Zoloft . ) , she13 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 be1 4 6 1 I d . at 5 . 62 I d. 63 I d. at 6 . 64 Jd
. 65 Id. at 7 . that th e Court s hould not just look at the manual ( w hich came in with the po s tof th e ARID E manual compared to the HGN test. 6 5 Thi s Court al s o pointed out The Common w ealth pointed out that the LOC test was in a different part an y c a s e s specific to the LOC tes t. 6 4 sc ientifi c e x pert testify , w hich Defen s e Counsel admitted that there were not c ommunity or that it wa s identical to the HGN test and that it should have a a g ain re ques ted case law that the LOC test wa s not accepted by the s cientific p r esented , that it wouldn ' t hav e been p rejudicial to the Defendant. " 63 This Court been harml e ss error since it was " similar enough to other e v idence that was if th ey w ere found to be the same, the introduction of the e v idence would 'v e how s omeone's pupils react to light or whether or not they cross, and that , even Common w e alth pointed out that Officer O'Brien could certainly testify about Commonwealth agreed to it, which the Commonwealth did not. 62 The Tho u gh , this Court was willing to admit the ARIDE manual into evidence if the prove the Defense Counsel ' s point that the LOC test i s just like the HGN test. 6 11 5 6 6 I d 67 Id. at 9 . 68 Id . at 1 1. methodolog y that underl i es the e v idence has general acceptance in the rele v ant Under the Fry e te s t, " no v el s cien tific e v idence is admi ssible if the 1 . 

### I n response to Appe lla n t's fi r st g ro u n d fo r t h e Ap p eal, the A

p pe lla n t never requested a Frye H

earing, and, so the issue is waived . Thi s Court will now address Appellant ' s ground s for the appeal , in order. DI SCUSSI O N not t o a dmi t the manual. 68 Common weal th w ould not stip u late to this at the heari n g , so the Court decided the ARIDE manual to come i n at the post- s entence moti on hearing, and the Further , Defen s e Counsel did not get the trial attorney's stipu l ation for s imple ta s ks . " 67 the fact s that w e heard , her behavior , her driving , her i n abi l ity to perform eve n cumulati v e w eight of Dr . Guzzardi's opi n ion and took into consideration all of The Court also pointed out that he "was fai rl y under whelmed by the Court t o read it. 66 evidence by just handing the manual to the Co u rt th e manual and te ll ing the sentence motion) , and that it was an incorrect action to enter th e manual i n to1 6 69 Comm o nw ea lth v. E i n h orn, 9 11 A . 2 d 96 0 , 974-975 (P a . S up er. C t. 20 0 6). 70 I d. at 9 7 5. 11 I d. 72 I d. (Citing P a. R. A.P., Rul e 3 0 2 ( a); th e Co urt co ncluded that " Thu s, b ecau se of E inh orn's failure t o p reserve thi s cl aim in th e tri al c o urt, th e i ss u e i s wai v e d .") LO C' s tes t ge neral acceptanc e in the s cientific c ommunity. A s indic ate d in th e trial did D efense coun se l pres ent te s tim o ny from m e dic al e xp e rt s about th e e v e n m en tion Frye u n til the D e fen se's Po s t-Sentence Motio n. At no point in B ase d on a re vi e w of the re cord, here, Coun s el for the Defen se did not court are w aived and cannot be r ai s ed for the fir s t tim e on app e al. " 72 w aiv e d bec au s e of th e ge ner al rule , which i s th at " i ss ue s not rai s ed in the lo w er pri or to thi s appe al.'!" Th e court concluded that thi s ground for the app eal w as tim e did Einhorn s eek to preclud e the testimony ba s ed on a Fry e ass e s sm e nt que s tioned the acceptability of [Dr. Gu zz ardi 's ] utili z ed method ; ho w ev e r, at no impeach [Dr. Guzzardi] through cro ss -e x amination in which trial coun s el 

### hearin g.':" Further , during the trial in that ca se, th e Appellant "attempted to Gu zzardi ' s ] tes timony on the ba s i s of Fry e, nor did he reque s t a Frye that case "never filed a motion in limine s eeking to preclud e .. . [Dr. that certain tes timony wa s n't admis s ible under Frye. However, the Appellant in scientific community. t ' '" In Commonw e alth v. Ei nhorn , the Appellant claimed. t 1 7 73 Common w ea l th v . Cox , 115 A.3d 333 , 336, appeal deni e d, 1 24 A.3d 308 (Pa. 2015) ( internal citations omitted). 

### cou n sel had not provided any case l aw that supported th at the lack of the Here, as indicated i n th e B ackgroun d section of this opi ni on, Ap p e ll an t's '[T ] he admissibi l ity of evi d e n ce i s a m atte r addressed to the soun d discretion of the trial court an d . . . an ap p e ll ate court m ay o nl y r eve r se upon a s h owing that th e trial court abused i ts di scretion.' ' An 

### abuse of discreti o n i s n ot a m ere error in ju d gment b ut, rather, i n volves b i as, ill w ill , partiality, prej u dice, manifest unreasonableness, or misappli cati o n of l aw. 7 3 

### T he standard on the admiss i bility of evide n ce is as fo ll ows: 2. 

### In res pon se to A

pp e llant ' s se cond groundfor the appeal , thi s Court did no t e r r w h e n it admitte d the la c k of c onv e rg e nc e tes t. this ground for the ap p eal meritless. hearing, and, so, this Court respectfully re quests that the S u pe ri or Co urt fin d issue was wai ve d because the D efense counse l never timely requ ested a Frye Frye hearing pri or to trial , th is Court may have entertaine d it. H oweve r , th is a separate section from the H GN test. H ad Counse l for th e D efense requeste d a the scientific commu n ity was an ARID E man u al , in which the L O C test was in offered to support i ts concl u sions abo ut th e LOC test's general acceptance in Background section of this opinion, Counse l fo r th e Defe n se's o n ly materi al s18 7 4 Commonwealth v . Stringer , 4 51 Pa. Super. 180, 183, 678 A.2d 1 200, 120 1 --02 ( 1 996). ts Id. requires that an a d equ ate fo und ation be se t forth estab lis h i n g th at HG N testing a d missio n of the H GN test, the s tand ard i s as follows: " P ennsy l van i a l aw th at alcoh ol consump ti on caus e s nystagmu s .... The r efo re, an ad e quate foundation mus t b e pr ese nte d pri or to admi ; : sion ofHGN test resu l ts." 75 For the H GN test res u lts are sc i e n tifi c evi d ence "base d on th e sc i entific p ri n c ip le the driv e r is aske d to cove r on e eye and focus the o th er o n an objec t ( u s u all y a p en) h el d by the office r at th e dri ve r' s eye l eve l. As the office r moves the ob j ect g r a du all y ou t of th e drive r' s fi e ld of vis i o n t ow ard h i s ear, h e watches the dri ver ' s eyeball to d etect involuntary j erkin g. T h e tes t i s r epeate d w i th th e othe r eye. B y observing (1) the in ab ili ty of eac h eye to trac k move m e nt smoothl y, (2) p r o noun ce d n ystagmu s at maximu m d eviatio n an d (3) onse t of th e nystagmu s at an an g l e l ess than 4 5 d egrees i n r elati on t o the cen t e r po i n t , th e officer can es ti m ate whe th e r th e driv e r ' s bl oo d alcohol co n te nt (BA C) excee d s the l egal limi t of . 10 perce n t. 74 During th e HG N test, admi tte d th at th ere w a s no c ase l aw th at said i t was the same. th e sc i e n ti fic co mmun ity. In fact, as i n di cat e d ab ove, C o u n sel fo r th e App e ll an t converge n ce test was th e same as th e H GN test, o r th at i t was unacceptab l e i n19

is g en er all y ac c e p te d in th e sc i en ti fi c communi ty, in c ludi ng th e m e di cal s c ience fi e ld of op hth almolo gy." 76 

### T h e L O C t es t , as d es c ri be d by O f fi ce r O ' Brie n in his tes ti m o ny w hi ch i s foun d i n the B ackgr o un d sec ti o n of this op inion , i s di sti nc tive fro m th e HG N test an d no testimony was p u t i nt o the record s t ating th at i t was the same as th e H GN test or that it was n o t accepted by the s c ientifi c co mmunity, an d App e ll an t h ad no t re queste d a Fry e heari n g t o show that i t was not acce p te d b y th e scie n tific commu nity . Unli ke the HGN test, n o case l aw establi s h es that the LOC test resu lt s are d eeme d to b e s c ientifi c evi d e n ce. Furthe r , there i s no ev id ence that the a d mi ssion of th e LO C test i nvo l ve d b i as, i ll wi ll , parti ali ty, p re jud ice, man ifes t unreasonab l e n ess or a mi sapp li cation of l aw. H a d th e LOC tes t not b ee n admi tte d , th ere was still suffic i e nt evidence to fin d th at Ap p e ll an t was i n tox i cate d and wou ld not have c h anged the o u tcome of th e case. As suc h , th is Co u rt res p ec tfu ll y requ ests that th e Su p erio r Court fin d th at thi s Co urt di d not ab u se i ts di scre ti o n to a dmi t the LOC test an d fin d th is groun d fo r th e ap p eal meri tless.20 77 Co m m on weal th v. Wi d me r , 744 A.2d 74 5, 751 (P ' a . 20 0 0 )( i nt e mal c itation s o mi tted ). 78 Comm o nwealth v . Brow n , 48 A .3 d 4 2 6 , 430 (Pa . Sup e r . C t. 2012 )(ci tin g Co mm o n we a lt h v. Markma n , 91 6 A. 2 d 5 86 , 5 98 (2 0 0 7) ). 

### ev iden ce. 78 

### Th e Commonweal th " n e e d n ot preclude ev ery po ss ib il ity of In pro v i n g it s ca se, th e Commonwealth may re l y s o l e l y o n circum s tantial

Ev i dence w ill be deeme d suffic i ent to s upport the v erdict when it estab li s h es each materi al element of the cri me c h ar ge d and th e commi s sio n thereof by the accu s ed, beyond a r ea s onable doubt. Where the e v idence o ff ered to s upport the v e rdi ct i s i n contra d iction to the p h y s ical fact s, in contrav en tion to human experience and th e law s of nature, then th e ev i dence i s in s ufficient as a matter o f l aw . When r ev i ewing a s u f ficiency claim the court i s re qu i red to v iew the evi d ence in th e l i g ht mo s t favorabl e to the v er di ct winner giving th e pro s ec u tion the benefit o f all re as onab le infere nce s t o be drawn from the evide n ce.

77 

### follow s: e viden c e . The s tandard u s e d to analyze a sufficiency o f the ev i dence claim is a s in s ufficien t to find Appellant gui l ty ofDUl . W e fin d th at th ere was sufficient Appe ll ant contests th at th e evidence o f Appe ll ant's intoxicati on wa s -r 

### 3 . In res pon se to A

pp e llant 's third ground

f o r the app e al, th e Co mmonw e alth prese nte d s uffici e nt e vide n ce of A pp e llant 's into xi c at i on to

find A pp e llant g uil ty of D UI

: Contro ll e d S ub s tan ce - Impaire d A bili ty - 

## P ' Off e ns e b ey ond a reas onabl e doubt2 1 79 Common we alt

h v . Te jada, 107 A.3d 788 , 792 (Pa . Super. Ct. 2015) . 80 Id . 8 1 Co mm o nwe a lt

h v . Lambert

, 2002 PA Super 82 , ,i 5 , 795 A. 2 d 1010 , 1014 ( 200 2) In 

### Williamson , a police officer foun d th e driver sl u mpe d o ver the steering w h ee l an d o b serv e d th at s h e ha d b lo o d shot eyes, was relevant case l aw: T h e S uperi o r Court i n 

### Commonwealth v. Terrach s u mmarize d th e An i ndi vi dual may not drive , ope r ate o r b e i n actual p hysi c al control of the moveme nt o f a vehicle un der an y o f the foll o w in g circumstances: (2) The indi v i du al is un d er the influe n ce of a dru g or c o mb ination of drugs to a degre e w h ich imp ai rs th e indi v i dual' s ability to safe l y drive, operate or be in ac tu al p hysi c al co n tr o l of the moveme n t of th e v ehicle. ·. I mpaire d Ab ility - l" O ff e nse i s d efined as fo ll ows: According to th e P e nn sylvania statute , D UI: Co n trolle d S u b stance - produced , is free to b e l ieve all, part or none o f the evid e nce." 8 1 passing upon th e cre dibi lity of witn esses and the weight of th e evi d ence circ u mstances. " 8 0 As th e fact

- finder in a non - jury tri al , the j u d ge , " while as a matter of l aw no p rob ability of fact may b e drawn from the c o mb i ned resolve d by th e fact

- fin d er u nl e s s the evidence is s o weak and in c oncl us i ve that innocence." 79 

### If there is do u bt about a D efen d an t 's g u il t , the d o u b t " may be82 Commonwealth v . T a r r ach, 20 1 2 P A Sup e r 8 2, 4 2 A.3 d 34 2 , 346 (20 12 ) .

22 

### and App e llan t ' s admi ss io n to O f fic er O ' Bri en that s he wa s takin g tho s e about App e llant 's be h avior an d i n abi lity to complete any of the s obri e ty te s t s , into Mr . Grove 's si de of th e l ane to w ard s Grove, Offi ce r O'Bri e n 's te s ti mony off e n s e . Sp e c i fi c all y, Mr. Gr o ve's tes timon y about App e llant' s e rrati c dri v i ng there wa s s u f

ficient e v i d ence for thi s Court t o fin d the Appe ll ant gu il ty of thi s A s indicated by the ev id e nce in the Bac kground s ection of thi s opinion , D U I : Co n tr oll e d Sub s tanc e - Imp aire d Ability - l " Offen se . v erdict winner , we find there wa s s ufficient ev i de n ce to find Appellan t guil ty of Wh e n v iewed in the light mo s t fav orable to th e Commonwealth a s the lethar g i c, and h a d s lo w, incoh erent s pee c h . W illia m so n , 

### 96 2 A .2 d at 1201 -02. Th e dri v er fail e d two fie l d s obri e ty te s t s. A uri n e sc reen wa s po s i ti v e for pres crip tion drug s. I d. 

### at 1 202 . W e h e ld that te s timon y o f errati c dri ving , coupled with proof that dru gs we re pres en t, w ere t o ge ther s uffi c i e nt to pro v e th at th e op er ator' s abi l ity to dri ve s afely w a s impaired. Id. 

### at 1204 . Mo re recently , in Gr iffit h, 

### witne ss o b s ervati o n s o f erratic dri v ing , po l ice ob se rv ation s of the dri ve r , failed fi e l d s obri e ty te s t s , and pre s cription dru gs in th e driver 's s y s te m , to g ether s ufficed to pro ve dri v in g under th e influence. Gr iffi th, 

### 32 A.3d at 1233

- 3 4 . Our Supr e m e Court held that the re l e v ant inquiry w a s wheth er th e drug s i n th e dri ver ' s sys te m were impairin g the per s on' s abili ty t o dri ve . The Court foun d that polic e ob s ervation s an d a fai l e d s obrie ty te s t s u f

ficed to sati sfy th e i n qui ry, e v en wi thout e x p ert tes ti mon y. I

d. 

### at 1240 . " 82presc ription s. T hi s C ourt a ckno w ledge s that Ap p ellan t w as on multipl e m e dicati on s and h a d p hys ical problem s that m ay h ave affec t e d her balance . H oweve r , O f fi cer O ' Bri en's tes tim ony th at App e llan t h ad balance probl e m s s tandin g s till t o th e d eg ree th at s h e w as sway in g almo st fo ur inche s whi l e s tandin g s till , her i nabili ty to pi c k up a p aper and o ther behav ior s indic ated n arc oti cs u se . In teresti ng l y O f

fi c er O ' Bri e n h a d al s o po inte d out that App e llant' s b e h avi or w as wor se than man y D U I' s th at Offic er O ' Brien had ob s erved . B as ed on all of th e ev id ence , Ap pe llant w a s too imp ai re d to drive. T hi s Co u rt did t ake into care ful c on s id erati o n Dr . Gu zzardi 's tes tim o n y, ho weve r hi s tes timon y w as und erw h e lmi ng. A s di sc u sse d in the B a ckg rou n d secti on o f thi s opinion , Dr . Gu zz ardi indi cated th at the v ari ety o f m e di cation s th at App e llant was on could c au s e i mp airm e nt t o a p er s on w h e n driv in g i f th ey ha d not bu i lt up a tol eranc e to th e m e dic ati on, i f th ey h a d s to p p e d th e m e di catio n and res um e d at a l ate r tim e, o r i f th ey h a d take n m o re than th e rec omm e nd e d do se. Dr . Gu zzar di could not tes ti fy to ho w mu c h App e ll ant was, in actuali ty, takin g of e ac h m e di cation or w heth er or not s h e was t aking th e m e di cati on c on s i s te ntly s uch th at s he w ould hav e a tol e r ance to th e 232 4 83 Commonwealth v. Widme r , 7 44 A.2 d at 75 1 (stati n g th at "(a ] cl aim c h alle n ging the suffic i ency of th e evide n ce, i f granted, wo uld prec lud e r etri al und er the d o u b l e jeo p ardy provis ion s of th e Fi fth A m en dm e nt to th e U nit e d S tates Co n s titu ti o n , and Arti c l e I , § l O o f th e P ennsy l vania Co n s titutio n , w h ereas a claim c h all engi n g th e we i g ht of th e ev i de n ce i f granted wou l d pe rmit a secon d trial.") ( i n tern al citati o n s o mitted). 

### the evi de n c e challen g e s in non-jury trial s i s as follow s: from a c h alle n g e t o th e s u ffic i e n cy o f th e e v idence . 83 

### Th e s tand ard for w e i g ht o f the we i g h t of the ev ide nce. A c h all e n g e to the we i g ht of the e v id e nc e i s di s tinct w e ig ht o f th e e v idenc e . Thi s Court find s that the conc l u s ion did not g o a g ai n s t App e ll ant conte nd s th at findin g Appellant guilty of DUI w e nt agai n s t th e 4. As to A

pp e llant 's

f o urth g round fo r th e app e al , th e findin g o

f g uil ty wa s n o t a g ain s t th e we ig ht of th e ev ide n ce o n th e D U I o ff e n se. fi n d App e ll ant g ui l ty o f thi s offen s e be y ond a re a s on abl e doub t. App e ll ant in capable o f dri v in g s afe l y, and thu s there w as s uffici e nt e v id e nce to ev id ence to c on c lud e th at App e ll ant' s combination o f medi cation rende red App e ll ant w a s imp aire d . B as ed on all of th e ev id e nce , th e re w a s s u f ficient and ac tion s, as tes tifi e d to b y Gro ve and Offi ce r O ' Bri e n cle arl y i ndicat e d that Appellant wa s cle arly takin g mu l tip l e drug s and Appellant 's b e hav i or m e di c ati o n 's s ide effects .25 8 4 Commonwealth v. Karns, 2012 PA Super 154, 50 A.3d 158 , 165 (20 1 2) (quoting Commonwealth v . Houser , 6 1 0 Pa. 264 , 276 , 18 A.3d 1128, 1135-36 (20 11 )) . 

### will not di s tu rb th e verdict. wheth er to fin d the testimony of the witn esses cre di b l e . Therefore, th e Court the evidence o r ab used its discretion . It 

### was w i th in thi s Court's d isc retio n convictions, and the re is n o reasonable argumen t th at this C ourt mis

- weighe d As d esc rib e d above, the ev id ence was s uf ficient to sup p ort th e A clai m all eg i ng the verdict was against the we i ght o f th e evi d ence is a d dressed to the d iscretion of the trial co u rt. According l y , an appellate court reviews the exe rcise of the trial court's di scre ti o n ; it d oes no t answer for i tself whether the ver d ict was against th e weight of the evi d ence. It 

### is we ll settled that the [fac t- fin d er ] is free to b e li eve all, p art, or n one of the evi d ence and to d etermine the cre di bi li ty of the witnesses, an d a new trial b ase d o n a weight of the evi d e n ce claim is only warrante d



# . where th e [ factfinder's] ver di ct is so contrary to th e ev id enc e th at it shocks one's sense of

justice . In determi n i ng w h e ther this stan d ar d h as been met, ap pellate review is limi te d to whe th er th e trial jud ge's di sc retion was properly exercised, and relief will o nly b e granted whe re the facts and i nferences of record disc l ose a pal p able ab use of disc r etion.

8 42 6 8 5 P a . R. Ev id . 9 0 2 . 86 Commo n wea lth v. Cox

, 115 A.3 d 333, 33 6 , app e al denied, 1 2 4 A.3 d 3 08 (Pa . 20 1 5) ( int e rn al c it ati o n s omitt e d ). Court w a s willing to enter it into evidence if th e Commonweal th agree d , the coun s e l ' s method to a d mit the man u al into evi d ence wa s i mproper. Wh ile th e n e c ess ari l y prov e th at the HGN test and LOC test were the same, an d defen s e A s the Ba c kground s ection in thi s op i nion discus s es, the manual d oes not '[T]he admi s sibi l ity of e v idence i s a matte r a d dres s e d to the sound di s cretion of the trial court and . .. an appe ll ate court may only re v er s e upon a showing that the trial court abuse d its discretion . ' ' An abuse of di s creti on i s not a mere error i n judgment b u t , rather, involves bias , 

### ill w ill , partiality , prej ud ice, man i fest unrea s onablenes s , or misapp l ication of l aw. 86 e v i de n ce i s a s fo ll ows : L i ke th e s econd ground fo r the appeal , the s ~ andard on the a d missi b ility of p amph l et, or other pub l ication purporting to be i s sue d by a p u blic authority." 85 auth e nticity in order to be admitted: .. . " official Pub li cations . A book , ev idence i s self

- authenticating; they re quire no extrinsic evidence of Under the Penn s y l vania Rules of Evidence, " the follow i ng item ... of 5. 

### I n res pon se to App e llant'

s fifth g round

for th e app e al

, thi s c ourt di d n o t e rr wh e n it did n o t admit t

he A RJDE m a nual. 

# . , ._ ,., · ·- no r .::; ;":" 1C : '-

- ,,.. -- - '"t ~ - ~F

·· · -< - 

### D a t ed: J a nu ary 5 , 2 01 7

;- ,-.,. .. 

## . . r-...:, = -.J I - t \. ,L.,1 c., :;:j C) :'!,::, :x :;:: z C)C) I

- · i u i en {"" ~ :- .r: QI c ~ -0 c:: - 3 ;:.: r - N ......., ( J., 0 w 2 7 

### v erdict. fi n d Ap pellant 's fir s t grou n d for th e appeal meritle ss and to a f firm the j ury In con c lu s ion , thi s Court re s pectfull y reque s t s that the Superior Court CO NCLUS IO N for the appeal meri tle ss . rea s ons , this Court re s pectfull y reque s t s that the Superior Co u rt find thi s ground prejudi c e , manife s t unrea s onablene ss or a mi s app li cation of l aw . For th e abo v e e v idence o f the ARIDE manual di d not in v ol v e bias , 

### ill w ill , partial i ty , man ual into e v idence after the trial had occurred . Den y ing the admission into Here, it w a s in thi s Court ' s discretion whether or not to admit th e ARIDE po i nted out that tho s e te s ts were in s ep arate section s in the ARIDE manual. that th e HG N te s t and LOC te s t were the s ame and the Commonweal th ev en C omm o n w e alth did not. Th e Defen s e Coun s el could not pro v ide an y ca s e law