from the Judgment of Sentence December 2, 2014 In the Court
of Common Pleas of York County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J.,
OTT, J., STABILE, J., DUBOW, J., MOULTON, J., and RANSOM, J.
Linard Maurice Gause appeals from the judgment of sentence,
entered in the Court of Common Pleas of York County,
following his convictions of driving under the influence of
alcohol or controlled substance ("DUI") - general
impairment,  DUI - controlled substance,  and driving
without stop lights (brake lights) in violation of period for
requiring lighted lamps. After careful review, we vacate the
judgment of sentence and discharge Gause.
trial court summarized the facts of this case as follows.
[O]n September 25, 2013, at around 1:20 in the morning,
Officer [Erika] Eiker encountered a vehicle lacking
illuminated taillights.  During the ensuing stop, the officer
asked [Gause] for his license and registration and questioned
where [Gause] was coming from. [Gause] provided the requested
items without any fumbling and informed the officer that he
was traveling from a friend's home[.] Officer Eiker
smelled alcohol and [Gause] stated that he had consumed one
12-ounce can of beer. [Gause] then completed field sobriety
tests with varying levels of success. On cross-examination,
defense counsel elicited from Officer Eiker that during the
encounter she neither smelled nor saw marijuana. Moreover,
the officer testified that [Gause's] speech was not
slurred and that, outside of the field sobriety tests,
[Gause's] balance and coordination were fine. Officer
Eiker went on to testify that she gives the Romberg Test when
she suspects marijuana usage because she associates eyelid
tremors, as in this case, with marijuana usage. . . .
[T]hough [Gause] submitted himself to a drug recognition
evaluation, he refused chemical testing.
Trial Court Opinion, 4/16/15 at 5-6 (citations to record
trial, a jury convicted Gause of the aforementioned charges.
The trial court merged the DUI convictions for sentencing
purposes and sentenced Gause to a term of 5 years of
intermediate punishment, including 45 days to be served in
county prison and 90 days of house arrest, and imposed a $1,
500 fine, plus costs of prosecution. On the summary offense
of driving without brake lights, the court imposed a $25
fine, plus the costs of prosecution. Gause filed
post-sentence motions, which the trial court denied. This
timely appeal followed.
raises the following issues for our review:
1. Whether Officer Eiker's opinion testimony that body
tremors and eyelid tremors are indicative of marijuana
impairment should have been excluded?
2. Whether Officer Eiker should have been denied the ability
to testify as to her opinion that body tremors and eyelid
tremors are indicative of marijuana impairment when the trial
court ruled prior to the beginning of trial that the
Commonwealth's witnesses could not render an opinion?
3. Whether Officer Eiker's and Officer George's
testimony regarding eyelid and body tremors should have been
excluded even if they did not render an opinion because the
testimony was irrelevant without their opinion?
4. Whether there was insufficient evidence to support the
[j]ury's finding of guilt on count 2, DUI-[c]ontrolled
[s]ubstance, because the Commonwealth failed to present
sufficient evidence that Mr. Gause was incapable of safely
operating an automobile because of drug consumption?
5. Whether there was insufficient evidence to support the
[j]ury's finding of guilt on count 1, DUI, [g]eneral
[i]mpairment, when Officer George testified that he had
excluded alcohol as a factor of impairment?
6. Whether the [j]ury's verdict as to count 2 is against
the weight of the evidence when there was no testimony as to
the drug(s) that Mr. Gause was supposedly impaired by?
7. Whether the verdict as to count 1 is against the weight of
the evidence when Officer George had specifically excluded
Appellant's Brief at 6-7.
first argues that the trial court committed reversible error
when it permitted Officer Eiker to offer her opinion that
eyelid and body tremors are indicative of marijuana
impairment. We agree. Officer Eiker's lay opinion was
incompetent and the trial court should have excluded it as
inadmissible under Pennsylvania Rule of Evidence 701.
to the start of trial, the court ruled that Officer Eiker
could testify to her observations of body and eyelid tremors
"but not to any conclusions as to what those tremors
signified." N.T., 10/9/14, at 13. During trial, the
court reversed its earlier ruling and, over defense
counsel's objection, permitted Officer Eiker to attribute
Gause's body and eyelid tremors to marijuana impairment.
Officer Eiker testified that, in her opinion, Gause was under
the influence of a controlled substance, and that she formed
this opinion, in part, on body and eyelid tremors:
Q: [B]ased on your training, your experience, your education,
your observations of [Gause], performance on those tests, did
you form an opinion at the time of your contact with [Gause]
whether or not you believed he was impaired?
A: Yes. At the time of my contact with him, just, you know,
the totality of everything, you know, his behavior, the body
tremors, the eyelid tremors, the clues on the walk and turn,
you know, his poor perception of time with the Romberg
balance test, and ...