The opinion
J-A25034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SIMON ANTHONY MORRIS,
Appellant No. 1896 MDA 2015
Appeal from the Judgment of Sentence May 29, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0002161-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 07, 2016
Appellant Simon Anthony Morris appeals the judgment of sentence
entered by the Court of Common Pleas of Centre County after Appellant was
convicted of two counts of Driving Under the Influence (DUI) and one count
of Disobedience to Traffic Control Device.1 Appellant claims the trial court
abused its discretion in limiting the testimony of his expert witness and
challenges the weight of the evidence supporting his convictions. We affirm.
On Sunday, June 30, 2013, at approximately 2:55 p.m., Officer
Akinyokunbo Obiri of the State College Police Department was out on traffic
patrol when he observed Appellant’s vehicle proceed straight through an
intersection where motorists are only allowed to make a right turn. The
1
75 Pa.C.S. § 3802(a)(1) (General Impairment); 75 Pa.C.S. § 3802(c)
(Highest Rate of Alcohol); 75 Pa.C.S. § 3111.
*Former Justice specially assigned to the Superior Court.
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intersection is clearly marked with signs telling drivers that all traffic must
turn right. Due to Appellant’s failure to obey this traffic sign, Officer Obiri
initiated a traffic stop of Appellant’s vehicle.
When Officer Obiri explained his reason for the stop, Appellant claimed
he did not realize there were signs posted at that intersection. Appellant
alleged that he was coming from Spats Bar, which Officer Obiri later
discovered was actually closed that day. As Officer Obiri noticed Appellant
was avoiding eye contact, he observed Appellant’s eyes were droopy. In
addition, Officer Obiri smelled an odor of alcohol emanating from the vehicle.
When Officer Obiri asked if Appellant or his passengers had been drinking,
Appellant denied drinking but indicated that his passengers had been
drinking. Officer Obiri asked Appellant to step out of the vehicle to see if the
alcohol smell was coming directly from Appellant. As he exited the vehicle,
Appellant had to grab the door handle for balance and swayed on his first
few steps. Officer Obiri noticed Appellant personally smelled of alcohol and
he was stuttering in his speech. When asked, Appellant again denied having
alcohol prior to the stop.
After Appellant agreed to submit to field sobriety testing and Officer
Obiri found his performance to be unsatisfactory, Officer Obiri arrested
Appellant for suspicion of DUI and took him to Mount Nittany Medical Center
for a blood draw. Officer Obiri read the implied consent warnings contained
on the DL-26 form to Appellant, who indicated that he understood the
implied consent warnings and agreed to the blood draw. Testing revealed
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that Appellant’s blood alcohol content was 0.260%, more than three times
the legal limit.
Appellant was charged with the aforementioned DUI and traffic
offenses. Prior to trial, the Commonwealth filed a Motion to Preclude Expert
Report and Testimony, claiming defense expert Dr. Jimmie Valentine
submitted a report containing speculative opinions not supported by the
evidence or based on a reasonable degree of scientific certainty. The trial
court heard argument before trial and granted the Commonwealth’s motion
in part, limiting Dr. Valentine to testify only concerning Officer Obiri’s
observations of Appellant during the traffic stop.
Appellant proceeded to a jury trial conducted on March 20, 2015. The
Commonwealth presented the testimony of Officer Obiri, Alyssa Caldwell-
Gill, the phlebotomist who performed Appellant’s blood draw, and Christina
Fialkowski, the forensic scientist employed at the Pennsylvania State Police
Crime Lab who tested Appellant’s blood sample. Appellant presented Dr.
Valentine as his expert witness. Ultimately, the jury convicted Appellant of
both DUI offenses and the failure to obey a traffic control device.
On May 29, 2015, the trial court sentenced Appellant for his conviction
of DUI (highest rate of alcohol), imposing Intermediate Punishment for a
period of five years, which included a period of Restrictive Intermediate
Punishment of 120 days in the In-Home Detention Program. The trial court
also ordered Appellant to pay costs, fines, and fees and to participate in
various programs. Further, the trial court required Appellant to pay costs
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and fines on the traffic violation but imposed no further penalty on the DUI
(general impairment) conviction. On June 4, 2015, Appellant filed a Motion
for Post-Sentence Relief. As the trial court did not act on this motion, it was
denied by operation of law pursuant to Pa.R.Crim.P. 720 on October 5, 2015.
Appellant filed this timely appeal on October 26, 2015 and complied with the
trial court’s directions to submit a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review on appeal:
1. Did the trial court err in precluding Dr. Jimmie Valentine from
testifying to the entirety of his expert report and professional
scientific opinions where his report was nothing less than
thorough and complete and his opinions were supported by
peer review articles, to a degree of scientific certainty and
would have assisted the jury in reaching their conclusions
thereby violating Due Process and his right to be heard in a
meaningful way[?]
2. Whether the trial court’s verdict of guilt as to DUI: Highest
Rate of Alcohol was against the weight of the evidence where
the Commonwealth’s witness testified that acetonitrile (a
substance not found in human blood) may have been found in
[Appellant’s] blood sample; she had no concerns that it may
have been present; and did nothing to determine why it was
there; and Dr. Valentine opined that the observations made
by Officer Obiri of [Appellant] were not consistent with
someone with a .26 blood alcohol content.
3. Whether the trial court’s verdict of guilt as to DUI: General
Impairment was against the weight of the evidence where the
officer was unable to link any observations of impaired driving
to [Appellant] and the Commonwealth did not establish that
[Appellant’s] mental and physical faculties were impaired
such that he could not safely operate a motor vehicle.
Appellant’s Brief, at 1.
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Appellant first challenges the trial court’s discretion in limiting the
testimony of his expert witness, Dr. Valentine. “[T]he admission of expert
scientific testimony is an evidentiary matter for the trial court's discretion
and should not be disturbed on appeal unless the trial court abuses its
discretion.” Commonwealth v. Freeman, 128 A.3d 1231, 1246 (Pa.Super.
2015) (quoting Grady v. Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038,
1046 (2003)). An abuse of discretion “is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence or the record, discretion
is abused.” Commonwealth v. Poplawski, --- Pa. ---, 130 A.3d 697, 718
(2015).
Pennsylvania Rule of Evidence 702 sets forth the parameters for the
admission of expert testimony:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the
relevant field.
Pa.R.E. 702.
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In granting the prosecution’s motion to preclude Dr. Valentine’s expert
report and testimony, the trial court indicated that, after reviewing Dr.
Valentines’ report twice, it concluded that:
it appears as though it is a broad-sweeping compilation of
suggestions and pointers for appropriate places for cross-
examination without reaching the necessary scientific
conclusions that this Court thinks needs to happen for it to be
more than just speculation and innuendo to the jury.
Trial Court Opinion, 12/9/15, at 1-2.2
To be admissible, expert testimony must exhibit the application of
expertise and cannot be merely an expert’s lay opinion. Snizavich v.
Rohm & Haas Co., 83 A.3d 191, 195 (Pa.Super. 2013). “Testimony does
not become scientific knowledge merely because it was proffered by a
scientist. Likewise, expert testimony must be based on more than mere
personal belief, and must be supported by reference to facts, testimony or
empirical data.” Id. (citation omitted). Further,
The exercise of scientific expertise requires inclusion of
scientific authority and application of the authority to the specific
facts at hand. Thus, the minimal threshold that expert testimony
must meet to qualify as an expert opinion rather than merely an
2
We recognize that our Supreme Court held that “the proponent of expert
scientific evidence bears the burden of establishing all of the elements for its
admission under Pa.R.E. 702, which includes showing that the Frye rule is
satisfied.” Grady, 576 Pa.at 558, 839 A.2d at 1045 (citing Frye v. United
States, 293 F. 1013 (Pa. 1923)). Under Frye, “novel scientific evidence is
admissible if the methodology that underlies the evidence has general
acceptance in the relevant scientific community. Grady, 576 Pa. at 555,
839 A.2d at 1043–44. The trial court in this case did not perform a Frye
analysis, essentially finding that Appellant had failed to show the basic
requirement of presenting a coherent scientific analysis that would assist the
jury in understanding any facts at issue.
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opinion expressed by an expert, is this: the proffered expert
testimony must point to, rely on or cite some scientific
authority—whether facts, empirical studies, or the expert's own
research—that the expert has applied to the facts at hand and
which supports the expert's ultimate conclusion. When an expert
opinion fails to include such authority, the trial court has no
choice but to conclude that the expert opinion reflects nothing
more than mere personal belief.
Id. at 197.
In this case, the trial court did allow Dr. Valentine to testify that
Officer Obiri’s indications that Appellant had droopy eyes, slurred speech,
trouble completing field sobriety tests were not definite proof of Appellant’s
intoxication, but were subjective observations made by the officer. The trial
court also permitted Dr. Valentine to offer his opinion that Appellant’s
behavior was inconsistent with that of an individual with a 0.26% blood
alcohol level.
Appellant challenges the trial court’s decision to preclude Dr. Valentine
from testifying to the rest of his expert report. In his appellate brief,
Appellant lists Dr. Valentine’s conclusions but does not explain why he
believes that the trial court erred in finding these opinions were mere
speculation unsupported by any scientific analysis. Instead, Appellant
asserts that Dr. Valentine has offered well-founded opinions as a recognized
figure in the fields of medical pharmacology and toxicology. While Appellant
includes citations to scientific literature, he does not explain how Dr.
Valentine’s opinions were supported by these sources.
The Rules of Appellate Procedure state unequivocally that
each question an appellant raises is to be supported by
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discussion and analysis of pertinent authority. Appellate
arguments which fail to adhere to these rules may be considered
waived, and arguments which are not appropriately developed
are waived. Arguments not appropriately developed include
those where the party has failed to cite any authority in support
of a contention. This Court will not act as counsel and will not
develop arguments on behalf of an appellant. [M]ere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.
Coulter v. Ramsden, 94 A.3d 1080, 1088–89 (Pa.Super. 2014), appeal
denied, 403 WAL 2014 (Pa. filed Dec. 10, 2014) (internal citations and
quotation marks omitted). As Appellant has not provided any discussion of
his claims of trial court error, we find Appellant has waived this argument on
appeal.
Even assuming Appellant had properly developed his argument, we
would find it to be meritless. Our review of Dr. Valentine’s expert report
shows that the majority of his conclusions are made without any citation to
relevant authority or a reference to the basis upon which Dr. Valentine made
his conclusions. For example, Dr. Valentine baldly asserts that Appellant’s
field sobriety test results were skewed as Appellant was under undue
pressure to perform well in front of his peers. He also speculates that
Appellant’s BAC level may have been lower at the time of the traffic stop
because he was in an alcohol absorption phase in which his BAC did not read
accurately until his blood was drawn 32 minutes later. Dr. Valentine offers
no factual basis for these conclusions and does not recognize that Appellant
denied drinking before the traffic stop. Dr. Valentine also questions Ms.
Fialkowski’s credibility, asserting that her resume does not contain a college
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transcript showing the courses she completed or whether she published any
scientific articles. However, Dr. Valentine did not claim Ms. Fialkowski is
unqualified in any way and admits that she has a bachelor of science degree
in applied forensic science and completed forensic toxicology training with
the Pennsylvania State Police.
When Dr. Valentine does cite to a scientific study, it is inapplicable to
the facts of this case. In arguing that an officer’s smell of alcohol on a driver
cannot be scientifically correlated with alcohol use, Dr. Valentine cites a
scientific article stating that there was a small likelihood of an officer
detecting breath alcohol odor for individuals with BACs below 0.10% Dr.
Valentine does not explain the relevance of this study to this case where
Appellant’s BAC was 0.26%. Dr. Valentine also noted that Officer Obiri did
not observe vertical gaze nystagmus (VGN), which he notes is associated
with high doses of alcohol. However, the article that he relies on does not
support his conclusion that VGN must be observed in individuals with high
blood alcohol levels. Moreover, some of Dr. Valentine’s expert conclusions
are merely points for the defense to cross-examine the prosecution
witnesses. Dr. Valentine emphasizes that Officer Obiri interchangeably used
the terms “slurred” speech and “stuttering.” Expert testimony is not
necessary to cross-examine the officer on his discrepancy of language.
Essentially, Dr. Valentine merely reviews the facts in this case and
speculates that Appellant’s blood alcohol level test results cannot be correct.
We agree with the trial court’s observation that Dr. Valentine’s report
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reflected nothing more than personal belief as he did not apply any relevant
scientific authority to the facts at hand to support his conclusions. Coulter,
supra. Thus, we find the trial court did not err in limiting the scope of Dr.
Valentine’s expert testimony.
Appellant also challenges the weight of the evidence supporting both
of his DUI convictions. When reviewing a challenge to the weight of the
evidence, our standard of review is as follows:
The weight of the evidence is a matter exclusively for the
finder of fact, who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. A
new trial is not warranted because of a mere conflict in the
testimony and must have a stronger foundation than a
reassessment of the credibility of witnesses. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
On appeal, our purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the
jury verdict did not shock its conscience. Thus, appellate review
of a weight claim consists of a review of the trial court's exercise
of discretion, not a review of the underlying question of whether
the verdict is against the weight of the evidence. An appellate
court may not reverse a verdict unless it is so contrary to the
evidence as to shock one's sense of justice.
Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa.Super. 2016)
(citation omitted).
Appellant claims that the weight of the evidence does not support his
conviction under Section 3802(c) (Highest Rate of Alcohol) of the Vehicle
Code. To be convicted of DUI — highest rate of alcohol, an individual's BAC
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must be 0.16% or higher. See 75 Pa.C.S. § 3802(c).3 Here, Appellant
concedes that his BAC was measured to be 0.26% less than one hour after
he was detained by the arresting officer. Nevertheless, Appellant suggests
that his blood sample may have been contaminated, asserting that the
testing revealed the presence of acetonitrile, a substance not normally
contained in human blood. Appellant argues that the Commonwealth’s
expert witness’s testimony should have been discounted as she did not
determine why this substance was in Appellant’s blood.
Our review of the trial transcript reveals that Ms. Fialkowski, the
forensic scientist who tested Appellant’s blood sample, admitted that her
testing indicated the possible presence of acetonitrile in Appellant’s blood.
However, she clarified that the instrument she used, a gas chromatograph,
was not set up to identify the compound and thus, she could not confirm
that the blood sample contained acetonitrile. Moreover, Officer Obiri, Ms.
Caldwell-Gill, the phlebotomist who drew Appellant’s blood, and Ms.
Fialkowski testified in depth as to how the sample was taken, sealed,
3
Section 3802(c) provides the following:
(c) Highest rate of alcohol. -- An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that
the alcohol concentration in the individual's blood or breath is
0.16% or higher within two hours after the individual has driven,
operated or been in actual physical control of the movement of
the vehicle.
75 Pa.C.S. § 3802.
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entered into evidence, tested, and carefully documented. All the prosecution
witnesses were subject to cross-examination by defense counsel. Despite
Appellant’s insinuations to the contrary, there was no evidence that
Appellant’s blood sample was contaminated, that there was a gap in the
chain of custody, or that the tests inaccurately measured Appellant’s BAC to
be 0.26%. The jury was free to believe all, part, or none of the
Commonwealth’s evidence and to determine the credibility of the witnesses.
See Rosser, supra. As a result, we conclude that the trial court properly
exercised its discretion in determining the jury’s verdict was not against the
weight of the evidence.
In addition, Appellant challenges the weight of the evidence supporting
his conviction for DUI – general impairment, asserting that “Officer Obiri’s
opinion that Appellant was incapable of safe driving was based on mere
subjective factors that do not scientifically correlate to levels of impairment.”
Appellant’s Brief, at 37. In order to sustain a conviction of DUI — general
impairment, “the Commonwealth [must] prove the following elements: the
accused was driving, operating, or in actual physical control of the
movement of a vehicle during the time when he or she was rendered
incapable of safely doing so due to the consumption of alcohol.”
Commonwealth v. Segida, 604 Pa. 103, 985 A.2d 871, 879 (2009).
Moreover, this Court has stated, “[e]vidence of erratic driving is not a
necessary precursor to a finding of guilt under [DUI — general impairment].
The Commonwealth may prove that a person is incapable of safe driving
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through the failure of a field sobriety test.” Commonwealth v. Mobley,
14 A.3d 887, 890 (Pa.Super. 2011).
Furthermore, our Supreme Court has stated:
The types of evidence that the Commonwealth may proffer
in a subsection 3802(a)(1) prosecution include but are not
limited to, the following: the offender's actions and behavior,
including manner of driving and ability to pass field sobriety
tests; demeanor, including toward the investigating officer;
physical appearance, particularly bloodshot eyes and other
physical signs of intoxication; odor of alcohol, and slurred
speech. Blood alcohol level may be added to this list, although it
is not necessary and the two hour time limit for measuring blood
alcohol level does not apply.... The weight to be assigned these
various types of evidence presents a question for the fact-finder,
who may rely on his or her experience, common sense, and/or
expert testimony. Regardless of the type of evidence that the
Commonwealth proffers to support its case, the focus of
subsection 3802(a)(1) remains on the inability of the individual
to drive safely due to consumption of alcohol - not on a
particular blood alcohol level.
Segida, 604 Pa. at 115-16, 985 A.2d at 879. In Mobley, this Court upheld
a defendant’s conviction for DUI – general impairment as the arresting
officer reported that Mobley had “failed four separate field sobriety tests,
smelled of alcohol, and proceeded to coast through a stop sign despite a
police officer being in plain view.” Mobley, 14 A.3d at 890.
The facts of the instant case are substantially similar to the facts in
Mobley. Officer Obiri observed Appellant proceed straight through an
intersection which was clearly marked with traffic signs that directed all
traffic to turn right. After Officer Obiri initiated a traffic stop, he noticed
Appellant smelled of alcohol, was avoiding eye contact, had droopy eyes,
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and slurred his speech. Officer Obiri observed Appellant struggle to exit the
vehicle, needing to hold on to the door for support and Appellant failed three
field sobriety tests. Thirty-two minutes after the stop, Appellant’s blood
alcohol level was measured to be 0.260%, which is more than three times
the legal limit. Accordingly, we conclude that the trial court did not abuse its
discretion in denying Appellant’s challenge to the weight of the evidence
supporting his conviction for DUI – general impairment.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2016
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