J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

JASON PAUL SCHROCK :
:

:
:

:
:

:
:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 841 MDA 2017
Appeal from the Order Entered May 10, 2017 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP

- 28

- CR

- 0000775

- 2016

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER  , J.

MEMORANDUM BY OTT, J.: FILED JANUARY 10, 2018

The Commonwealth appeals from the order entered May 10, 2017, and

clarified on May 11, 2017, 1 in the Franklin County Court of Common Pleas,

which granted, in part , Jason Paul Schrock’s pretrial motion in limine , and

prohibited a sta te trooper from offer ing lay opinion testimony based on

“scientific, technical or other specialized knowledge within the scope of

Pa.R.Evid. 702.” Order, 5/11/2017. On appeal, the Commonwealth contends

the trial court’s ruling was erroneous, and the troo per shoul d be permitted to

testify regarding his observations as a lay witness. For the reasons below, we

affirm.

_________________ __________ ______ ____ _______

 Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has properly certified in its notice of appeal that the order w ill “su bstantially handicap the prosec ution” pursuant to Pa.R.A.P

. 311(d). Notice of Appeal, 5/24/2017.J

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The following facts were developed during a pretrial suppression

hearing, and summarized by the trial court in its opinion disposing of the

motion:

Robert Adams lives at 2102 Stillhouse Road, Shippensburg, Franklin County, Commonwealth of Pennsylvania. He owns the property at that address, and resides there with his son Tim Adams and Judy. 10 During the overnight hours of April 8, 2016

- Apri l 9, 2016, [Schrock] and his then girlfriend, Katelyn Rock, arrived at Mr. Adam s ’ residence. They went into the room above a shed on the property; at approximately 8:00 p.m., [Schrock] snorted heroin and Ms. Rock injected heroin. At some point that same evening, Mr. Adams learned that his grandson, [Schrock]
, was present on the property with Ms. Rock. Mr. Adams had previously advised [Schrock] that he was not permitted upon the property.

__________

10 It was not clear from Mr. Ad ams’ testimony whether Judy is a relative of his, wife/paramour of himself or his son, or just a tenant.

__________ Upon learning of the presence of [Schrock] , Mr. Adams contacted the Pennsylvania State Police (hereinafter "PSP") for assistance. He advise d PSP that there were unwanted individuals on his property and that one or both of them may have warrants for their arrest. Trooper Benjamin Frantz 11 was dispatched to Mr. Adams’ residence.

__________

11 Trooper Frantz has been employed by PSP since Janua ry 21, 2007, and has extensive training in detecting the effects of an individual under the influence of controlled substances

or alcohol. Specifically, he received training at the PSP Academy, completed Advanced Roadside Impaired Driving Enforcement trai ning, and is certified as a Drug Recognition Expert by the Pennsylvania Chief ’ s Association and the United States Department of Transportation. In his career he has interacted with hundreds of individuals under the influence of a controlled substance.

___ _______J

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- At the time he was dispatched, Trooper Frantz was advised that there was a report of two (2) unwanted individuals who were trespassing and were possibly wanted by law enforcement authorities. Upon arrival at Mr. Adams’ residence, Trooper Frantz spoke with Mr. Adams. Mr. Adams advised him that [Schrock] and Ms. Rock were in a shed on the property and that Mr. Adams wanted them removed. Mr. Adams told Trooper Frantz that his grandson's name was “Jason.”

Trooper Frantz as ked Mr. Adams if he could come onto the property to search for [Schrock] and Ms. Rock; Mr. Adams advised him that he could. In fact, Mr. Adams showed Trooper Frantz the location of the shed. [Schrock] and Ms. Rock were located in the upstairs room above the shed, which was accessed by an exterior staircase.
Trooper Frantz opened the door to the room and immediately observed [Schrock] seated in a chair inside the door. Trooper Frantz also observed Ms. Rock move immediately to a love seat and sit down. Tr ooper Frantz noticed a cloud of smoke which had an odor consistent with recent narcotic use. He observed fresh “track marks” on Ms. Rock’ s arms, so recent that they were still bleeding. He did not observe track marks on [Schrock’s] arms. Both [Schrock] and Ms. Rock had droopy eyelids, which Trooper Frantz noted is consistent with recent opiate use.
Trooper Frantz engaged [Schrock] and questioned why he was there. [Schrock] advised him that he had the permission of his father (Mr. Adam s ’ son, Tim) to be present on the property. While talking to the [Schrock] , Trooper Frantz noted that [Schrock’s] responses were lethargic, which is consistent with recent narcotic use. Trooper Frantz obtained identifying information for both [Schrock] and Ms. Rock and ran 12 their names for wants/warrants. Ms. Rock provided a false name to Trooper Frantz.

__________

12 Trooper Frantz could not recall if he ran the names himself, or whether another Trooper did.

__________ During his investigation, Trooper Frantz asked Ms. Rock where her “kit” was; as explained by Trooper Frantz, a “kit” is typically a small bag or container where a drug abuser keeps theirJ

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drug delivery devices and other drug

- use paraphernalia, as well

as co ntrolled substances. She advised him that it was in her purse.
Trooper Frantz observed the purse on the floor and approached it. The purse was open and, without touching or otherwise manipulating the purse, Trooper Frantz observed used hypodermic needles, a tourniquet, cotton, and burnt spoons in an open bag inside the purse. 13 Upon retrieving the kit for closer examination, Trooper Frantz also observed capsules containing a brown/off

- white substance. The substance’ s characteristics were consistent with h eroin.

__________

13 The Court notes that these items are commonly used for ingesting controlled substances, particularly heroin.

__________ At some point, Trooper Frantz took both [Schrock] and Ms. Rock into custody 14 for the instant offenses. 15 Trooper Frantz then conducted an immediate search of the area within arms’ reach 16 of [Schrock] and Ms. Rock. He located a jacket which appeared to belong to a male; when he questioned [Schrock] regarding ownership of the jacket, [Schrock] said it was his. Upon searching the jacket, Trooper Frantz located a bag of marijuana.

__________

14 It is not clear from the testimony at what precise point Trooper Frantz placed [Schrock] and Ms. Rock under arrest.

15 Ms. Rock was charged similarly to [Schrock]; however,

s he was additionally charged with providing false identification to law enforcement. Trooper Frantz was also aware by this time that [Schrock] was under the supervision of state parole.

16 Mr. Adams testified that the room in question is approximately 10 feet by 10 feet; Trooper Frantz opined that it was a bit larger in dimensions. Suffice it to say, the room was not large.
Trial Court Opinion, 3/29/2017, at 5

- 7.

Schrock was subsequently charged with possession of a controlled

substance, possession of dr ug paraphernalia (three counts), and possessionJ

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of marijuana for personal use. 2 Although counsel was initially appointed, the

trial court later granted Schrock’s request to proceed pro se following a

Grazier 3 hearing conducted on October 12, 2016. Therea fter, Schrock filed

several pretrial motions including an omnibus motion for pretrial relief , w hich

the trial court granted in part, and denied in part
, on March 29, 2017. 4

Relevant to this appeal, Schrock filed a motion in limine on April 28,

2017, seeking, inter alia , to prohibit Trooper Frantz from offering “expert”

testimony and referring to his training as a “drug recognition expert.” Motion

in Limine , 4/28/2017, at unnumbered 5

- 6 . In response, the Comm onwealth

filed an answ er, asserting Trooper Frantz “ will not be tendered as an

expert at trial ,” but rather, would be “offering testimony as a lay witness

based on his training, to include his training as a DRE, and experience and

perception of the events on the evening in ques tion as to wh e t he r [Schrock]

appeared to be high and/or under the influence” of drugs. Commonwe alth’s

An swer, 5/4/2017, at unnumbered 4 (emphasis supplied)

. On May 10, 2017, the trial court entered an order granting
, in part , and

denying
, in part , Schro ck’s motion. For purposes of this appeal, the court

_________________ __________ ______ ____ _______

2 See 35 P.S. §§ 780

- 113(a)(16), (a)(31)(i), and (a)(32), respectively.

3 See Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998).

4 The trial court granted Sc hrock’s motion to suppress a statement he made to Trooper Frantz admitting that he uses heroin and marijuana. See Order, 3/29/2017. However, the court denied Schrock’s motion to suppress the evidence recovered from the purse and jacket, as well as a motion for writ of habeas corpus

. See id.J

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directed: “Trooper Benjamin Frantz is prohibited from testifying as an expert

witness or offering an opinion that would fall within the parameters of

Pa.R.Evid. 702.” Order, 5/10/2017, at ¶ 6. The nex t day, the Commonwealth

filed a motion for clarification. In an order dated May 11, 2017, the court

denied the motion, but explained:

In granting [Schrock’s] Motion in Limine on this point, the Court relied exclusively upon the Commonwealth’s assertion th at it would not be calling Trooper Frantz as an expert witness. Since the Commonwealth is not tendering Trooper Frantz as an expert, ip so facto his testimony in the manner of any opinion is limited by Pa.R.Evid. 701. In other words, if Trooper Frantz’s opinion sought to be introduced by the Commonwealth is based on scientific, technical, or other specialized knowledge within the scope of Pa.R.Evid. 702, it is not admissible since he is not being offered as an expert witness.
Order, 5/11/2017 (emphasis in original) . This Commonwealth appeal follows. 5

The Commonwealth’s sole issue on appeal 6 asserts the trial court abused

its discretion in prohibiting Trooper Frantz from offering lay opinion testimony

that based upon his experience as a DRE, he believed Schrock was under the

_________________ __________ ______ ____ _______

5 On May 30, 2017, the trial co urt ordered the Commonwealth to file a conci se statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth complied with the court’s directive, and filed a concise statement on June 19, 2017.

We note, too, that in July of 2017, Schrock requested, and was granted
, ap pointment of counsel to assist him on appeal. See Order, 7/5/2017. After counsel filed Schrock’s appellee brief, he requested permission to withdraw in the trial court. By order entered November 21, 2017, the trial court held counsel’s motion in abeyanc e until after a ruli ng from this Court, in order to

“ avoid undue prejudice” to Schrock. Order, 11/21/2017.

6 Although the Commonwealth lists two issues in its brief, we have consolidated them for ease of disposition.J

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influence of narcotics on the night in question. See Commonwealth’s Brief at

19.

Our review of a trial court’s ruling on a motion in limine is well

established :

When ruling on a trial court’ s decision to grant or deny a motion in limine , we apply an evidentiary abuse of discretion standard of review. “A trial court has broad discretion to determine whether evidence is admissible,” and a trial court’ s ruling regarding the admiss ion of evidence “will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill

- will, or such lack of support to be clearly erroneous.”

Commonwealth v. Belani , 101 A.3d 1156, 1160 ( Pa. Super. 2014) (internal

citations omitted).

With regard to the specific issue presented sub judice , we note

Pennsylvania Rule of Evidence 701 provides that a lay witness may offer

opinion testimony so long as it is:

(a) rationally bas ed on the witness’ s perceptio n; (b) helpful to cl early 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. Rule 702 sets forth the qualifications for expert opinion

testimony, including
, inter alia
, that the expert have “scientific, technical, or

other specialized knowledge [] beyond that possessed by the average

layperson[. ]” Pa.R.E. 702 (a)

. Here, the Commonwealth insists Trooper Frantz should b e permitted to

provide lay opinion testimony that : (1) Schrock was under the influence ofJ

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narcotics on the night in question; (2) the odor in the room was consistent

with recent narcotic/heroin use; and (3) the drug paraphernalia found at the

scene was a “drug kit” commonly possessed by drug users. See

Commonwealth’s Brief at 20

- 28. T he Commonwealth maintains these

opinions were based solely upon Trooper Frantz’s observations , coupled with

his experience as a DRE. See id. at 23

- 24. Specifically, the Commonwealth

argues the trooper’s observations of Schrock’s behavior and demeanor were
“‘typical and obvious’ indicia of recent narcotic use which make the admission

of a lay witness opinion on the issue appropriate[.]” Id. a t 24 (citation

omitted). Moreover, it contends the trooper’s opinion that the odor in the

room was consistent with recent narcotic use was not based on specialized

knowledge because “the average layperson understands how ones (sic) sense

of smell works[.] ” Id. at 26. Further, the Commonwealth argues “a layperson

could quite easily comprehend what a drug kit is ... without the necessity of

expert testimony.” Id. at 27.

The trial court addressed the Commonwealth’s arguments as follows:

[T]he Commonwealth rather bizarrely asserts that Trooper Frantz will not be offered as an expert witness, [ 7 ] but will “be offering testimony as a lay witness based on his training, to include his training as a DRE, and experience and perception of the events on the evening i n question as to whether [Schrock] appeared to be high and/or under the influence of an intoxicating substance.” The

_________________ __________ ______ ____ _______

7 The Commonwealth has provided no ex planation as to why it will not offer Trooper Frantz as an expert witness, particularly considering his training as a DRE.J

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Commonwealth further argues that the issues raised by [Schrock] go to the weight of Trooper Frantz’s testimony, and not its admissibility. Finally, the Commonwealth points out that [Schrock] will have the opportunity to cross

- examine Trooper Frantz during trial on the issues raised.

The Common wealth avers that the observations and conclusions of Trooper Frantz are admissible under Pa.R.Evi d. 701. ... In the Court’s mind, it defies logic to suggest, as the Commonwealth does, that Trooper Frantz’s testimony falls within Pa.R.Evid. 701 and not Pa.R.Evid. 702. While Troope r Frantz can certainly testify under Pa.R.Evid. 701 regarding his observat ions and perceptions, any conclusion derived therefrom that [Schrock] was under the influence of heroin inexorably originates from the Trooper’s training, education and experience.
Since the Commonwealth has indicated that Trooper Frantz will not be offer ed as an expert witness, he will be permitted to testify as to what he observed; however, because he is not offered as an expert witness under Pa.R.Evid. 702, he is prohibited from testifying to any conclusion based upon his training, education or experien ce, i.e. , any conclusion that would fall within the gambit of Pa.R.Evid. 702. See Pa.R.Evid. 701(c).

* * * * As a result of the Commonwealth’s decision not to have Trooper Frantz testify as an expert, his status as a Drug Recognition Expert 7 becomes irr elevant.

__________

7 It should not be lost on either party that the word “expert” is in the very title of Trooper Frantz’s status as a DRE.
Trial Court Opinion, 5/10 /2017, at 5

- 6 (some internal citations and footnote

omitted). The trial court also provided several examples of permissible and

impermissible testimony under its ruling. See id. at 6

- 7 (explaining the

trooper could (a) testify he smelled an odor when he entered the room, (b)

identify the objects in Rock’s purse, and (c) describe Schock’ s physical

behavior; but could not (a) identify the odor as recent heroin use, (b) identifyJ

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the items in Rock’s purse as a “drug kit” and explain possession of such a kit

was indicative of recent drug use, and (c) testify that Schrock’s physical

appearance was indicative of recent heroin use).

We agree with the trial court’s ruling, and find this Court’s recent en

banc decision in Commonwealth v. Gause , 164 A.3d 532 (Pa. Super. 2017),

appeal denied , ___ A.3d ___ (Pa. Oct. 26, 2017), instructive. In Gause , a
police officer conducted a stop of the defendant’s vehicle for a minor traffic

violation. Although the defendant did not immediately appear to be under the

influence of drug s or alcohol, the officer smell ed alcohol and the defendant

acknowledged he had one beer at a friend’s house. See id. at 535. The officer

then conducted several field sobriety tests, and based on the results, the

defendant was arrested and charged with, inter alia , driving under the

influence of a controlled substance. See id. at 534

- 535.

Relevant herein, the arresting officer testified at trial that , in her opinion,

the defendant was under the influence of marijuana at the time of the traffic

stop based on body and eyelid tremors he displayed during one of the field

sobriety tes ts

. See id at 536. After he was convicted, the defendant

appealed. A panel of this Court vacated the judgment of sentence, concluding

the trial court erred in permitting the officer’s opinion testimony

. The panel

opined:

Although Officer Eiker could te stify as to her observations of an apparent physical condition, a qualified expert is required to provide the connection between the symptoms observed and the drug alle gedly influencing the defendant’ s driving. SeeJ

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[ Commonwealth v. ] DiPanfilo, [993 A.2d 1262 (Pa. Super. 2010)]; see also Commonwealth v. Allison, 550 Pa. 4, 703 A.2d 16 (1997) (lay witness could not testify regarding “split and

o pened” condition of complainant’ s hymen in absence of qualified expert testimony to explain significance of these personal observations); Commonwealth v. Yanoff, 456 Pa.Super. 222, 690 A.2d 260 (1997) (murder defendant attempted to elicit objectionable opinion by asking police officer whether victim had appeared to be under influence of drugs; officer had no t been qualified to render such opinion); Commonwealth v. Yedinak, 450 Pa.Super. 352, 676 A.2d 1217, 1222 (1996) (Beck, J., dissenting) (“[A]fter a proper foundation has been laid, a lay witness may testify as to his or her observations. However, a qualifi ed expert is required to provide the connection between the symptoms observed and the drug alle gedly influencing the defendant’ s driving.”).

It is clear t o this Court that Officer Eiker’ s observation of “eyelid tremors” is not the typical and obvious indic ia of marijuana use, such as the distinct odor of burnt marijuana emanating from the person or the vehicle. Further, it is eminently clear that attributing body or eyelid tremors to marijuana use requires specialized knowledge within the scope of Pa.R.E. 702. Unlike staggering, stumbling, glassy or bloodshot eyes, and slurred speech, the “ordinary signs of intoxication discernable by a layperson,” eye tremors are not an ordinary sign of ingestion of a controlled substance, in particular, marijuana. As th e trial court acknowledged, Of ficer Eiker’ s testimony as to her observations did not obviate the necessity of an expert to explain whether “eye tremors,” or “body tremors,” would indicate that someone was under the influence of marijuana and that this impa ired his ability to safely drive, in violation of section 3802(d)(2). See DiPanfilo, supra; cf. Commonwealth v. Jones, 121 A.3d 524 (Pa. Super. 2015) (as matter of f irst impression, police officer’ s smelling strong, distinct odor of burnt marijuana emanat ing from vehicle during traffic stop provided reasonable grounds, by itself, to request chemical testing); Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007). Because it required specialized knowledge, Officer Eiker’ s testimony was inadmissible as “lay opinion.” See Pa.R.E. 701.J

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Id. at 539 (footnotes omitted). Furthermore, the panel disagreed with the

trial court’s ruling that the error was harmless. The panel explained: “ Without

expert testimony to explain a connection, if any, the jury was perm itted to

engage in speculation that the observation of eye tremors indicates marijuana

impairment, or, at the least, ingestion. ” Id. at 540.

We find Trooper Frantz’s opinion testimony in the present case to be

similarly flawed. At the suppression hearin g, the trooper described Schrock

and Rock as both having a pale complexion and droopy eyelids

– proper lay

witness testimony

- but then he inappropriately testified that their appearance

was “indicative in [his] expertise that they had recently used some type of

drug, specifically an opiate.” N.T., 2/6/2017, at 21 (emphasis supplied).

Similarly, the trooper’s testimony that there was a “chemical odor” in the air

was proper; however, his follow

- up statement that the odor was indicative of

recent narcotic use was based on his DRE training, and, thus, represented

expert testimony. See id. Lastly, with respect to Rock’s “drug kit,” Trooper

Frantz’s description of the paraphernalia observed in the purse was proper,

but his c onclusion, based on his “training and experience,” that the items

constituted “ a heroin kit used to inject the drug” was improper expert

testimony. Id. at 23.

Accordingly , because we agree Trooper Frantz should not be permitted

to provide expert opinio n testimony when he is not being offered as an expertJ

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witness, we affirm the trial court’s order granting, in part, Schrock’s motion in

limine

. Order affirmed. Case remanded for further proceedings. Jurisdiction

relinquished. Schrock’s pro se petit ion for leave to file supplemental appellee

brief is denied as moot.

Judge Dubow joins this memorandum.

Judge Strassburger files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/10/2018