Opinion
J-S37024-17 No. 1822 MDA 2016
11-15-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. RITA E. FORBES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Rita E. Forbes appeals from the August 24, 2016 judgment of sentence entered in the York County Court of Common Pleas following her bench-trial convictions for driving under the influence ("DUI") of a controlled substance - general impairment and careless driving. We affirm.
75 Pa.C.S. § 3802(d)(2) and 3714(a), respectively.
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.
Forbes raises one issue on appeal: "The trial court erred in admitting the lack of convergence (LOC) test as it is a variation of the horizontal gaze nystagmus (HGN) test, which is not admissible, as both tests are used to gauge the eye's ability to track an object in order to determine the possibility of intoxication." Forbes' Br. at 4.
The Commonwealth argues that Forbes waived this challenge on appeal because she did not file a pre-trial motion in limine challenging the LOC evidence under the standard in Frye v. United States , 293 F. 1013 (D.C. App. 1923) or request a Frye hearing. While it is true that Forbes did not file such a motion or request, Forbes objected to admission of the LOC test both pre-trial and when Officer O'Brien testified about the test, arguing that the LOC test was inadmissible because of its similarity to the HGN test. When Forbes objected, the trial court found, without considering expert testimony, that the LOC and HGN tests were not similar and, without further argument, allowed Officer O'Brien to lay a foundation for the LOC test. N.T., 8/24/16, at 4-7, 38-39. While Forbes could have lodged a more specific objection to the LOC evidence, under these circumstances we conclude that Forbes has preserved her challenge pursuant to Pennsylvania Rule of Appellate Procedure 302.
We further note that the Pennsylvania Supreme Court recently amended the comment to Pennsylvania Rule of Criminal Procedure 578, which addresses omnibus pretrial motions, to state that, effective January 1, 2018, motions in limine "proposing or opposing the admissibility of scientific or expert evidence" should be addressed in an omnibus pretrial motion. In re: Order Revising the Comment to Rule 578 of the Pennsylvania Rules of Criminal Procedure, No. 494 Criminal Procedural Rules Docket (Pa. filed Sep. 21, 2017). The comment notes that "[g]iven the potential complexity when the admissibility of such evidence is challenged, such challenges should be raised in advance of trial as part of the omnibus pretrial motion if possible." Id. However, the comment also notes that "nothing in this rule precludes such challenges from being raised in a motion in limine when circumstances necessitate it." Id.
Forbes argues that the trial court erred in admitting the results of the LOC test as substantive evidence. We apply the following standard of review in such matters:
[T]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and . . . an appellate court may only reverse upon a showing that the trial court abused its discretion. An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.Commonwealth v. Cox , 115 A.3d 333, 336 (Pa. Super.) (internal quotations omitted), app. denied, 124 A.3d 308 (Pa. 2015). Further, if
it is determined that the trial court erred in admitting the evidence, the inquiry becomes whether the appellate court is convinced beyond a reasonable doubt that such error was harmless. Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.Commonwealth v. Robinson , 721 A.2d 344, 350 (Pa. 1998) (internal citations omitted).
Forbes asserts that the trial court incorrectly determined that the LOC test is different from the HGN test. Forbes notes that this Court has determined that the HGN test is novel scientific evidence, the admissibility of which depends on expert testimony pursuant to Commonwealth v. Topa , 369 A.2d 1277 (Pa. 1977), which adopted the standard announced in Frye v. United States , 293 F. 1013 (D.C. App. 1923). According to Forbes, the LOC and HGN tests are similar and, as a result, the trial court should have required the Commonwealth to present evidence that the LOC test has gained general acceptance in the scientific community. However, we need not reach this question.
Even if Forbes were correct that the trial court improperly admitted this evidence, we conclude any error was harmless because the uncontradicted evidence of guilt was overwhelming.
Section 3802(d)(2) of the Vehicle Code provides:
(d) Controlled substances.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:75 Pa.C.S. § 3802(d)(2). A person may be convicted under this subsection where the Commonwealth proves that person "was under the influence of a drug to a degree that impairs [the person's] ability to safely drive[] or operate a vehicle." Commonwealth v. Williamson , 962 A.2d 1200, 1204 (Pa.Super. 2008). "Section 3802(d)(2) does not require that any amount or specific quantity of the drug be proven in order to successfully prosecute under that section." Id. (emphasis in original).
. . .
(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.
Here, the record shows that Forbes swerved into a lane of oncoming traffic, forcing another vehicle off the road to avoid a collision. When Officer O'Brien made contact with Forbes, she was swaying, nodding off, and speaking so softly that she could barely be heard. In addition, when Officer O'Brien re-approached and tried to return Forbes' license and paperwork to her, Forbes failed in her effort to grab the documents. Forbes also admitted to Officer O'Brien that she had taken numerous narcotics, including fentanyl, Dilaudid, gabapentin, and Zoloft. Further, Forbes failed two other field sobriety tests and when she attempted to perform the LOC test, Officer O'Brien terminated the test because he feared that Forbes would fall and injure herself. While Forbes has well-documented medical issues and presented an expert witness who concluded that Forbes could safely drive because she should have built up a tolerance to these medications, the Commonwealth's evidence overwhelmingly showed that Forbes was under the influence of a combination of drugs to a degree that impaired her ability to safely drive an automobile. Given this overwhelming evidence, any error in the trial court's consideration of a possibly inadmissible sobriety test was harmless.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/15/2017
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