J-A32004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JASON PAUL SCHROCK

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 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, 2017,1in the Franklin County Court of Common Pleas, 

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

prohibited a state trooper from offering 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 trooper should 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 will “substantially handicap the prosecution” pursuant to Pa.R.A.P. 

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

April 9, 2016, [Schrock] and his then girlfriend, Katelyn Rock, 

arrived at Mr. Adams’ 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. Adams’ 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 advised PSP that there were unwanted individuals 

on his property and that one or both of them may have warrants 

for their arrest. Trooper Benjamin Frantz11 was dispatched to Mr. 

Adams’ residence.

__________

11 Trooper Frantz has been employed by PSP since January 

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 training, 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.

__________
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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 asked 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. Trooper 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. Adams’ 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 ran12 their names 

for wants/warrants. Ms. Rock provided a false name to Trooper 

Frantz.

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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 their 
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drug delivery devices and other drug-use paraphernalia, as well 

as controlled 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 heroin.

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13

 The Court notes that these items are commonly used for 

ingesting controlled substances, particularly heroin.

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At some point, Trooper Frantz took both [Schrock] and Ms. 

Rock into custody14 for the instant offenses.15 Trooper Frantz then 

conducted an immediate search of the area within arms’ reach16

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, 

she 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 drug paraphernalia (three counts), and possession 
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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 

Grazier3 hearing conducted on October 12, 2016. Thereafter, Schrock filed 

several pretrial motions including an omnibus motion for pretrial relief, which 

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 Commonwealth 

filed an answer, 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 question as to whether [Schrock] 

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

Answer, 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, Schrock’s motion. For purposes of this appeal, the court 

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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 Schrock’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.
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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 next 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 that 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 appeal6 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 

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5 On May 30, 2017, the trial court ordered the Commonwealth to file a concise 

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, 

appointment 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 abeyance until after a ruling 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.
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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 wellestablished:

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 

admission 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 based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to 

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702.

Pa.R.E. 701. 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 be permitted to 

provide lay opinion testimony that: (1) Schrock was under the influence of 
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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. The 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. at 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 in 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 explanation as to why it will not offer 

Trooper Frantz as an expert witness, particularly considering his training as a 

DRE.
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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 Commonwealth avers that the observations and 

conclusions of Trooper Frantz are admissible under Pa.R.Evid. 

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 Trooper Frantz can 

certainly testify under Pa.R.Evid. 701 regarding his observations 

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 offered 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 

experience, 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 Expert7 becomes irrelevant. 

__________

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) identify 
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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 drugs or alcohol, the officer smelled 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 tests. 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 testify 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 allegedly influencing the defendant’s driving. See
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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 

opened” 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 not 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 

qualified expert is required to provide the connection between the 

symptoms observed and the drug allegedly influencing the 

defendant’s driving.”).

It is clear to this Court that Officer Eiker’s observation of 

“eyelid tremors” is not the typical and obvious indicia 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 the trial court 

acknowledged, Officer 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 

impaired 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 first 

impression, police officer’s smelling strong, distinct odor of burnt 

marijuana emanating 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.
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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 permitted 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 hearing, 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 conclusion, 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 opinion testimony when he is not being offered as an expert 
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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 petition 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