Com. v. Schrock, J.

J-A32004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

JASON PAUL SCHROCK : 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 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.

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 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.

__________

It was not clear from Mr. Adams’ testimony whether Judy

10

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.

__________

Trooper Frantz has been employed by PSP since January

11

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.

__________

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.

__________

13The 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 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.

__________

It is not clear from the testimony at what precise point

14

Trooper Frantz placed [Schrock] and Ms. Rock under arrest.

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

15

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.

16Mr. 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

____________________________________________

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

____________________________________________

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 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

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

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