J-S80003-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

VAUGHN DANTE TYNER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3780 EDA 2016

Appeal from the Judgment of Sentence September 15, 2016

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

No(s): CP-23-CR-0003314-2016

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.: FILED JANUARY 14, 2019

Vaughn Dante Tyner’s appeal from the judgment of sentence of 

seventy-two hours to six months of imprisonment, plus community service, 

fines, and costs, after he was convicted of driving under the influence 

(“DUI”), returns to this Court following remand.1 We affirm. 

The trial court summarized the underlying facts as follows.

On February 19, 2016, Trooper [Tyrone] Bradley was 

working the 11 pm to 7 am shift along with his partner Trooper 

Woody. Trooper Bradley was patrolling I-95 southbound in a 

marked state police vehicle, when he observed a red mustang in 

the middle lane, traveling at [a] high rate of speed in the area of 

Exit 3, which is located in Chester, Delaware County, 

Pennsylvania. Further, Trooper Bradley observed that the 

vehicle weaved within its lane of travel before crossing over the

dotted white lines with the passenger-side tires, and then began 

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1 On May 5, 2018, this Court remanded for the filing of new briefs. The 

additional briefing was completed when the Commonwealth filed its brief on 

November 5, 2018.
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driving in between the middle and right lanes. Trooper Bradley 

followed the vehicle and clocked it going 83 miles per hour in a 

55 mile[-]per[-]hour zone.1

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1 [The Commonwealth offered into evidence] a 

Pennsylvania Department of Transportation, the Bureau of 

Motor Vehicles certificate of speedometer accuracy. 

[Trooper Bradley] further explained that his vehicle’s 

speedometer was tested and calibrated on September 2, 

2015.

Trooper Bradley subsequently noticed the red mustang, 

which was still traveling at a high-rate of speed, cross the white 

line a second time. At this time Trooper Bradley activated his 

lights and sirens and initiated a traffic stop on South I-95 at mile 

marker 0.3, which is located in Lower Chichester Township, 

Delaware County, Pennsylvania. The driver complied by pulling 

over. 

Next, Trooper Bradley, along with Trooper Woody 

approached the red mustang. Trooper Bradley approached the 

driver, who[m][sic] he learned to be [Appellant], and introduced 

himself as a Pennsylvania State Trooper. Trooper Bradley asked 

Appellant for his driver’s license, registration, and insurance 

card, while proceeding to explain to Appellant his reasoning for 

pulling him over. Trooper Bradley observed that Appellant did 

not appear to be focused when locating the requested 

documents. Moreover, Appellant asked Trooper Bradley to 

repeat the documents needed. 

While speaking with Appellant, Trooper Bradley detected 

an odor of alcohol on his breath. Additionally, Trooper Bradley 

detected a strong odor of burnt marijuana coming from within 

the vehicle, and observed that Appellant’s eyes were bloodshot,

red, glassy, and that his pupils were dilated. When asked about 

the odor of marijuana, Appellant stated that there was no 

marijuana in the vehicle, but that he had smoked it in the car 

with some friends earlier that evening. When asked if he had

consumed any alcoholic beverages that evening, Appellant 

stated that he had one tequila sunrise and then one double-shot 

of rum and coke. 

At this point, Trooper Bradley asked Appellant to exit the 

vehicle to perform standardized field sobriety tests. Trooper 
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Bradley started with the horizontal gaze nystagmus test. Next, 

Trooper Bradley asked Appellant to perform the walk-and-turn 

test. In regard to the walk-and-turn test, while giving Appellant 

the instructions, Trooper Bradley observed that Appellant visibly

swayed, [and] could not keep his balance. During the first series 

of [nine] steps, Trooper Bradley observed that Appellant lost his 

balance, did not walk in a straight line, raised his arms, did not 

touch heel-to-toe, and completed an improper turn. On the 

second series of steps, there was no heel-to-toe, Appellant 

raised his arms for balance, did not walk in a straight line, and 

did not count aloud as instructed. 

Next, Trooper Bradley conducted the on[e]-legged stand 

test. Again, he walked through the instructions with Appellant. 

During the test, Trooper Bradley observed that Appellant visibly 

swayed, put his foot down several times, could not keep his 

balance and raised his arms. At this point, Trooper Bradley

stopped the administration of the field sobriety tests.

Based on Trooper Bradley’s observations of Appellant on 

the road, his contact of Appellant’s person, Appellant’s 

performance on the field sobriety tests, and Appellant’s

admission to consuming alcohol and smoking marijuana, Trooper 

Bradley believed that Appellant was incapable of safe driving and 

placed him under arrest for driving under the influence. 

Trial Court Opinion, 3/6/17, at 2-4 (citations omitted). 

Appellant proceeded to a non-jury trial on DUI—general impairment, 

75 Pa.C.S. § 3802(a)(1), and DUI—controlled substance (impairment), 75 

Pa.C.S. § 3802(d)(2),2 as well as several summary offenses. The trial court 

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2 The Commonwealth had originally charged Appellant with a violation of 75 

Pa.C.S. § 3802(d)(1)(iii) (DUI—controlled substance (metabolite)), but did 

not proceed on that count after the trial court excluded blood test results 

under Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). 
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found Appellant guilty of both DUI charges.

3 Appellant was sentenced as 

indicated above, and filed a timely post-sentence motion. After its denial, 

Appellant filed a timely notice of appeal, and both Appellant and the trial 

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

In this Court, Appellant’s counsel filed an application to withdraw and a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We denied 

counsel’s application to withdraw and remanded for counsel to file an 

advocate’s brief upon the determination that Appellant was able to make a 

non-frivolous argument that the evidence was insufficient to sustain his DUI 

convictions in light of this Court’s decision in Commonwealth v. Gause, 

164 A.3d 532 (Pa.Super. 2017) (en banc).

On October 22, 2018, after we granted three extensions of time to do 

so, Appellant filed the new brief late. Therein, he framed the following 

questions for our review.

1) Whether there was insufficient evidence to support 

the trial court’s finding of guilt on Count 1 — DUI-general 

impairment because the Commonwealth failed to present 

sufficient evidence that [Appellant] was incapable of safely 

operating a motor vehicle because of alcohol consumption?

2) Whether there was insufficient evidence to support 

the trial court’s finding of guilt on Count 4 — DUI-controlled 

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3 Appellant was also convicted of exceeding the applicable speed limit by 

twenty-eight miles per hour and fined accordingly. 75 Pa.C.S. § 3362(a)(2), 

(c). 
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substances when the Commonwealth failed to present sufficient 

evidence that [Appellant] was incapable of operating a motor 

vehicle because of drug consumption?

3) Whether Trooper Bradley’s opinion testimony was 

improperly admitted as he was not qualified as an expert in 

either alcohol or drug consumption and their individual effects on 

the body.

Appellant’s brief at 5 (unnecessary capitalization omitted). 

The following principles apply to Appellant’s sufficiency claims. 

Evidentiary sufficiency is a question of law and “our standard of review is de 

novo and our scope of review is plenary.” Commonwealth v. Williams, 

176 A.3d 298, 305 (Pa.Super. 2017). 

In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial and all reasonable 

inferences drawn therefrom, viewed in the light most favorable 

to the Commonwealth as verdict winner, were sufficient to prove 

every element of the offense beyond a reasonable doubt. [T]he 

facts and circumstances established by the Commonwealth need 

not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be 

accorded to each witness’s testimony and to believe all, part, or 

none of the evidence. The Commonwealth may sustain its 

burden of proving every element of the crime by means of 

wholly circumstantial evidence. Moreover, as an appellate court, 

we may not re-weigh the evidence and substitute our judgment 

for that of the fact-finder.

Id. at 305-06.

Appellant was convicted under the following provisions of the DUI 

statute.

(a) General impairment.—

(1) An individual may not drive, operate or be in actual 

physical control of the movement of a vehicle after 
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imbibing a sufficient amount of alcohol such that the 

individual is rendered incapable of safely driving, operating 

or being in actual physical control of the movement of the 

vehicle.

. . . .

(d) Controlled substances.--An individual may not drive, 

operate or be in actual physical control of the movement of a 

vehicle under any of the following circumstances:

. . . . 

(2) The individual is under the influence of a drug or 

combination of drugs to a degree which impairs the 

individual’s ability to safely drive, operate or be in actual 

physical control of the movement of the vehicle.

75 Pa.C.S. § 3802. 

We have no hesitation in concluding that the evidence was sufficient to 

prove that Appellant was impaired to the point that he was incapable of 

driving safely. Appellant, exceeding the speed limit by nearly thirty miles 

per hour, weaved within his lane and outside of it. N.T. Trial, 8/15/16, at 9-

10. Appellant had difficulty focusing when Trooper Bradley conducted the 

traffic stop and asked for Appellant’s documentation. Id. at 11-12. When 

asked to exit his vehicle, Appellant was slow, sluggish, and unsure of his 

footing. Id. at 13. Further, Appellant failed the standardized field sobriety 

tests. Id. at 15-16. Thus, the Commonwealth established the elements of 

impairment and inability to drive safely. See, e.g., Commonwealth v. 

Mobley, 14 A.3d 887, 890 (Pa.Super. 2011) (holding impaired ability to 
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drive safely was proven where the defendant failed field sobriety tests, 

smelled of alcohol, and ran a stop sign with a police officer in plain view).

However, the Commonwealth was also obligated to offer causation 

evidence. Specifically, to meet its burden of proof under subsection (a)(1), 

the Commonwealth was required to prove beyond a reasonable doubt that 

Appellant consumed a sufficient amount of alcohol to cause his impairment. 

Mobley, supra at 890. Likewise, to establish that Appellant was guilty of 

violating subsection (d)(2), the Commonwealth had to prove that Appellant’s

inability to drive safely was caused by the influence of a drug or combination 

of drugs.4 Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 

2012). 

In proving the causation elements of the offenses, expert testimony is 

not always needed; rather, the necessity for such evidence depends on the 

specific facts of the case. Commonwealth v. Griffith, 32 A.3d 1231, 1238 

(Pa. 2011). “[A] police officer who has perceived a defendant’s appearance 

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4

 Our legislature has recognized that a person may be unable to drive safely 

from a combination of alcohol and drugs where neither the alcohol nor drugs 

alone caused substantial impairment. 75 Pa.C.S. § 3802(d)(3). See also

Commonwealth v. Plybon, 421 A.2d 224, 226 (Pa.Super. 1980) (“[A] 

person may consume a small amount of alcohol which by itself would not 

cause the person to violate [the DUI statute] and yet when combined with a 

controlled substance would render that same person incapable of safe 

driving in violation of [subsection (d)(3)].”). Although Appellant was 

charged with a subsection (d)(3) violation, and the evidence seemingly

supports a conviction under that subsection more strongly than under (a)(1) 

or (d)(2), the Commonwealth without explanation declined to pursue the 

subsection (d)(3) count at trial. See N.T. Trial, 8/15/16, at 3. 
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and conduct is competent to express an opinion, in a prosecution for [DUI] 

as to the defendant’s state of intoxication and ability to safely drive a 

vehicle.” Commonwealth v. Butler, 856 A.2d 131, 137 (Pa.Super. 2004). 

While testimony generally is required regarding marijuana impairment, it is 

unnecessary where “the circumstances are so telling of recent marijuana use 

as to form a clear connection between marijuana use and impairment.” 

Gause, supra at 537. 

In this case, the only evidence of the amount of alcohol Appellant 

consumed was his admission that he had one tequila sunrise and one double 

rum and Coke at an undisclosed time before driving. N.T. Trial, 8/15/16, at 

13. There is no record evidence concerning the amount of marijuana 

Appellant smoked; as for the timing, Appellant indicated that “he smoked 

[marijuana] inside the vehicle with his friends earlier that night.” Id. 

However, at the time of the traffic stop, Trooper Bradley noticed both the 

strong smell of burnt marijuana “coming from inside the vehicle,” and the 

smell of alcohol “on [Appellant’s] breath and coming from within the 

vehicle.” Id. at 12. The trooper observed that Appellant’s “eyes were 

bloodshot, red, glassy, and his pupils were dilated.” Id. Further, the trooper 

noted Appellant’s sluggishness and unsteadiness discussed above. 

Trooper Bradley was neither offered nor accepted as an expert 

witness. Indeed, although Trooper Bradley offered lay opinion testimony

that Appellant was incapable of unsafely driving, no opinion testimony of any 
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kind was elicited from or offered by the trooper as to the cause of 

Appellant’s impairment. Trooper Bradley testified to having personal and 

professional experience observing people under the influence of alcohol, 

controlled substances, or both. Id. at 6-8. However, he did not indicate 

what his experience has taught him about the observable signs of alcohol 

impairment and impairment caused by controlled substances, or whether 

there are indicia of impairment unique to one type of impairment or the 

other. The full extent of Trooper Bradley’s opinion testimony was as follows:

Based on my observations of him behind the steering wheel 

driving, unable to maintain lanes, his excessive speed[;] my 

contact with him, bloodshot eyes, glassy eyes, dilation of pupil, 

unable to walk, unsure of his footing[;] and basically his 

admissions of consuming alcoholic beverages and smoking 

marijuana[;] I believed that he was incapable of safe driving, 

and I placed him under arrest for driving under the influence.

Id. at 17. 

Appellant argues that the Commonwealth’s evidence failed to show 

that Appellant used marijuana recently, and there was no indication that 

marijuana or paraphernalia was in the car at the time of the traffic stop. 

Appellant’s brief at 15. Appellant contends that the finding that Appellant 

was under the influence of marijuana to the degree that he could not safely 

operate his vehicle cannot be based just upon the lingering odor in 

marijuana in the car and his admission that he smoked it in the car earlier 

that evening. Id. Appellant insists that, under these circumstances, the 

Commonwealth was required to call an expert “to testify as to the effects 
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marijuana has on the body and to show a clear connection between 

marijuana and impairment.” Id. at 15-16. Along the same lines, Appellant 

asserts that the evidence failed to show “a clear connection between alcohol 

consumption and the ability to safely operate a motor vehicle.” Id. at 16. 

We find our resolution of the issue informed by this Court’s decision in 

Gause, supra. In that case, when Gause was stopped for driving without 

illuminated taillights, the officer smelled alcohol and Gause admitted to 

having consumed beer. Id. at 535. Gause also exhibited eyelid tremors, 

which the officer indicated was indicative of marijuana use. Id. at 536. 

Another officer who had administered sobriety tests opined that Gause was 

impaired by both alcohol and marijuana. Id. at 537. 

On appeal, this Court examined Gause’s convictions under subsections 

(a)(1) and (d)(2) of the DUI statute. This Court first held that the lay 

opinion testimony offered by the officers as to causation was improper. We 

determined that, based upon the lack of physical evidence of marijuana use, 

and “no admission from Gause that he had recently smoked marijuana,” the 

officer’s “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[.]” Id. at 539 (emphasis omitted). This was because “[u]nlike 

staggering, stumbling, glassy or bloodshot eyes, and slurred speech, ‘the 

ordinary signs of intoxication discernable by a layperson,’ eye tremors are 
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not an ordinary sign of ingestion of a controlled substance, in particular, 

marijuana.” Id. at 539. Thus, we concluded that the Commonwealth failed 

to prove that Gause “was under the influence of a drug to a degree that his 

ability to safely drive was impaired.” Id. at 540. 

Further, this Court concluded that the record did not support a finding 

that Gause was under the influence of alcohol to a degree that rendered him 

incapable of driving safely. Although the officers detected the odor of 

alcohol when questioning Gause, and Gause admitted that he had one 

twelve-ounce light beer, Gause “did not exhibit the typical indicators of 

alcohol impairment; there was no evidence of erratic driving, slurred speech, 

difficulty in handing over required documents, and no inability to stand 

without support.” Id. at 541. Accordingly, this Court vacated Gause’s 

convictions under both subsections (d)(2) and (a)(1). 

The presence in the instant case of the circumstances notably absent 

in Gause leads us to conclude that the evidence and all reasonable 

inferences therefrom, viewed in the light most favorable to the 

Commonwealth as verdict-winner, was sufficient to sustain Appellant’s 

convictions. Unlike the defendant in Gause, Appellant did admit that he 

had smoked marijuana that evening; Trooper Bradley did smell burnt 

marijuana in Appellant’s vehicle; Appellant did drive unsafely; and Appellant 

did exhibit ordinary signs of marijuana use discernable by a layperson, 

namely glassy, bloodshot eyes, dilated pupils, and lack of focus in retrieving 
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his paperwork. We conclude that, under the circumstances of this case, the

fact finder was able to ascertain the causation element through reasonable 

inferences from Trooper Bradley’s lay testimony. See Commonwealth v. 

Matthews, 389 A.2d 71, 73 (Pa. 1978) (“[C]ausation need not be 

established by direct evidence but may follow from circumstantial evidence 

of a reliable and persuasive nature.”); see also Commonwealth v. 

DiPanfilo, 993 A.2d 1262, 1267 n.5 (Pa.Super. 2010) (“[I]if a police officer 

stopped a driver who was driving erratically, and the driver then rolled down 

his window and greeted the officer through a cloud of marijuana smoke, 

showing the typical signs of heavy marijuana use, it would be difficult to 

imagine that expert testimony would be necessary to establish the link 

between the erratic driving and the driver’s marijuana use.”). 

Likewise, unlike the officers in Gause who expressly indicated that the 

defendant did not show the usual signs of alcohol impairment, Trooper 

Bradley smelled alcohol on Appellant’s breath and Appellant exhibited typical 

indicia of alcohol impairment, namely glassy and bloodshot eyes, lack of 

balance, stumbling, poor performance on sobriety tests such that Appellant 

“was about to fall over.” N.T. Trial, 8/15/16, at 15. From this, the trial 

court was able to conclude that Appellant’s alcohol consumption had caused 

him to be impaired to the point that he was unable to drive safely. See, 

e.g., Commonwealth v. Hartle, 894 A.2d 800, 804–05 (Pa.Super. 2006)

(holding evidence sufficient to establish DUI—general impairment where the 
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defendant “ran a stop sign, smelled of alcohol, had bloodshot and glassy 

eyes, was unsteady on his feet, refused to perform field sobriety tests, and 

refused a breath test”); Butler, supra at 136-37 (concluding evidence that 

the defendant who had been driving erratically smelled of alcohol, had 

bloodshot eyes and slurred speech, and was unable to stand, was sufficient 

to establish the defendant’s alcohol impairment rendered him unable to drive 

safely). Therefore, both of Appellant’s sufficiency challenges fail.

Appellant’s final issue on appeal is that Trooper Bradley’s opinion 

testimony was improperly admitted. See Appellant’s brief at 5. Appellant 

did not make this objection at trial, and therefore waived the issue.5 See, 

e.g., Commonwealth v. Whitaker, 878 A.2d 914, 920 n.3 (Pa.Super. 

2005) (“To preserve a claim for review, the defendant must make a timely 

and specific objection to the introduction of the challenged evidence at 

trial.”). As such, Appellant’s final issue merits no relief. 

Judgment of sentence affirmed. 

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5

In any event, to the extent that Trooper Bradley offered opinion evidence, 

it was lay opinion testimony the likes of which this Court has held to be 

admissible in similar circumstances. See Butler, supra at 137 (noting 

officer observing DUI defendant is competent to opine as to intoxication and 

driving ability); see also Commonwealth v. Davies, 811 A.2d 600, 603 

(Pa.Super. 2002) (“A police officer may testify to his or her opinion as to a 

suspect’s alcohol-induced intoxication and the suspect’s ability to drive safely 

when the officer has observed the suspect’s appearance and acts. . . . We 

find no basis upon which to distinguish opinion testimony of drug-induced 

intoxication from opinion testimony of alcohol-induced intoxication where the 

witness is personally familiar with the effects of narcotics.”) (cleaned up). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/14/19