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HomeMy WebLinkAboutCP-21-CR-0001746-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. CP-21-CR-1746-2010 : KURT NEIL SCHWAB : IN RE: POST-SENTENCE MOTION OPINION and ORDER Before the Court is Defendant’s Post-Sentence Motion, filed June 10, 2011. (Defendant’s Post-Sentence Motion, filed Jun. 10, 2011). Defendant was charged with (1) DUI – Controlled Substances; (2) DUI – Controlled Substances; (3) Driving on Roadways Laned for Traffic (Summary); (4) Drivers Required to be Licensed (Summary); (5) Reckless Driving (Summary); (6) Restraint Systems (Summary); and (7) Unauthorized Transfer or Use of Registration (Summary). A non-jury trial was held on March 9, 2011, and Defendant was found guilty of Count 2, DUI-Controlled Substances, a violation of 75 Pa.C.S.A. §3802(d)(1)(iii), and not guilty of the remaining counts. Defendant was sentenced on May 31, 2011. He subsequently filed the Post-Sentence Motion sub judice challenging the sufficiency of the evidence, and, in the alternative, alleging that the verdict was against the greater weight of the evidence. Defendant’s Motion alleges that this court improperly admitted evidence at trial of a lab report, which detailed the presence of a controlled substance in Defendant’s blood, and the testimony in support thereof, in violation of Defendant’s federal and Pennsylvania constitutional rights and in violation of the Pennsylvania Rules of Evidence. The facts of this case may be summarized as follows. On November 26, 2009, Defendant was arrested by the Pennsylvania State Police following an automobile accident investigation. On that date, Trooper Steven P. Nesbit responded to a call regarding a car crash, and when he arrived at the scene he observed Defendant standing outside of a vehicle which had impacted a tree. (Notes of Testimony 5, In Re: Nonjury Trial Proceedings, March 9, 2011 (hereinafter “N.T. __”)). EMS and fire personnel were already present. Tpr. Nesbit observed that Defendant was unsure of his footing, swayed in place, stumbled, was confused, and was making inconsistent statements. (N.T. 7). In addition, Tpr. Nesbit ran the license plate on the vehicle found at the scene and determined that the plates did not match either Defendant’s name or the vehicle to which they were attached. (N.T. 9-11). Based upon these observations and the conduct of Defendant at the scene, the trooper administered a PBT to determine whether Defendant was under the influence of alcohol. (N.T. 12). The results of the PBT, however, were negative. (N.T. 12). Tpr. Nesbit then questioned Defendant regarding any medications which he may have been on which could have been the cause of Defendant’s impaired motor skills. (N.T. 12). Defendant responded that he was on several medications, but he did not relate what those medications were. (N.T. 12). Because Defendant had sustained minor injuries as a result of the crash, EMS took Defendant to the Carlisle Regional Medical Center, and Tpr. Nesbit followed to the treatment room. (N.T. 14-15). Tpr. Nesbit concluded that Defendant could not safely drive a vehicle in the condition that he was in, and, as a result, the trooper read Defendant the PennDOT DL-26 form, advised him of his O’Connell warnings, and requested a blood draw. (N.T. 15). The blood draw was taken in accordance with the required procedures, and the Pennsylvania State Police retained custody of the sample until it was delivered to NMS Laboratories for testing. (N.T. 16). The blood was analyzed at NMS Labs, and a subsequent report indicated the presence of opiates, benzodiazepines, and cannabinoids. (N.T. 45). It is neither the blood draw itself, nor the actual results which were derived therefrom, which are the subject of the present motion. Rather, Defendant challenges the introduction of those results at 2 trial, and the means by which they were introduced, as being violative of his federal and Pennsylvania constitutional rights. At trial, the Commonwealth introduced the lab report indicating the presence of the controlled substances in Defendant’s blood through the testimony of Dr. Lee Blum of NMS Labs. (N.T. 31). Dr. Blum testified that he did not personally handle the aliquoting of the actual sample of blood himself; rather, he looked at the actual results which were generated in the computer system, the lab data, and he produced a report based on those findings. (N.T. 39). Dr. Blum testified as to the method by which the blood samples are analyzed. (N.T. 34). The procedure for blood testing at NMS Labs is, roughly, as follows: blood samples, often from the state police, are first received at NMS Labs, and these samples contain a chain of custody and other documentary information which is entered into the NMS Labs computers. (N.T. 34). The integrity of the samples is examined, and the sample is then aliquoted, or small portions of the sample are taken for testing. (N.T. 35). This aliquoting is done by a lab technician. (N.T. 49). Three aliquots are initially taken: two to test for the presence of alcohol and one to test for the presence of drugs. (N.T. 36). When the computer recognizes the general presence of any substances for which it is searching, it will schedule confirmation tests. (N.T. 37). Further aliquots are taken and inputted into the computer to determine exactly which substances are in the blood. (N.T. 37). The results are produced by the computer system. (N.T. 39). Dr. Blum then takes what has been generated and produced in the computer system, compares the results to ensure that nothing is amiss, and produces his report based on those findings. (N.T. 39-40). Somewhere during the procedure, however, there is “another person’s interpretation of the results from the computer” for the testing of drugs of abuse which goes into the computer system and is reflected in the computer reports that Dr. Blum views as he prepares his actual lab report. 3 (N.T. 42). It is, therefore, a combination of sources of data which go into Dr. Blum’s final report. In preparing Defendant’s blood draw report, Dr. Blum testified that he looked at the following: the raw data for the alcohol testing, the results for the drugs of abuse in the computer system, the results of other tests to ensure that everything matches at the time the report is generated, the chains of custody to verify that the samples have not been tampered with, the type of samples which were received, and the technicians who drew the aliquots for the testing. (N.T. 41). All of these sources, in combination, were taken into consideration, and Dr. Blum’s final report was generated and electronically signed by him. (N.T. 42). This is the report which was admitted at trial. At trial, defense counsel raised, and held a standing objection to, the testimony of Dr. Blum based upon the fact that Dr. Blum had not been the one who actually “analyzed the blood” or who “actually performed the testing.” (N.T. 29). Because Defendant was subsequently found guilty of Count 2, DUI-Controlled Substances, a violation of 75 Pa.C.S.A. §3802(d)(1)(iii), and later sentenced, Defendant filed the Post-Sentence Motion sub judice challenging the sufficiency of the evidence, and, in the alternative, alleging that the verdict was against the weight of the evidence. Defendant alleges that the lab report and testimony of Dr. Blum were improperly admitted at trial, asserting violations of his federal and Pennsylvania constitutional right to confront witnesses presented against him. As a result, Defendant alleges that the finding of guilt was not supported by sufficient evidence. (Defendant’s Post-Sentence Motion, filed Jun. 10, 2011). Furthermore, Defendant asserts that Dr. Blum’s testimony and report were inadmissible under Pennsylvania Rules of Evidence 705 and 703 alleging that Dr. Blum did not disclose the 4 basis of his opinion, and that the opinion was simply a restatement of another’s conclusion. (Defendant’s Post-Sentence Motion, filed Jun. 10, 2011). When evaluating a challenge to the sufficiency of the evidence in a criminal case, the test is “whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined all the elements of the crime have been established beyond a reasonable doubt.” Comomwealth v. O'Bryon, 2003 PA Super 139, ¶ 7, 820 A.2d 1287, 1290 (quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995)). Stated another way, the test requires that, prior to granting a motion in arrest of judgment based on insufficiency of the evidence, the court must “make a finding that the evidence supporting the verdict of guilt is so weak and inconclusive that a jury of reasonable men and women could not be satisfied as to the guilt of the defendant beyond a reasonable doubt.” Comonwealth v. Rightley, 421 Pa. Super. 270, 281, 617 A.2d 1289, 1295 (1992) (citing Commonwealth v. Rawles, 501 Pa. 514, 521, 462 A.2d 619, 622 (1983)). When reviewing a claim that the verdict is against the weight of the evidence, Pennsylvania courts use the “shocks-the-conscience” test. Commonwealth v. United States Mineral Products Company, 598 Pa. 331, 341, 956 A.2d 967, 973 (2008). A new trial will not be granted on the basis of a challenge to the weight of the evidence except in “truly extraordinary circumstances, i.e., ‘when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.’” Id. at 341-42 (citing Armbruster v. Horowitz, 572 Pa. 1, 9-10, 813, A.2d 698, 703 (2002)). 5 The Sixth Amendment to the United States Constitution provides, in pertinent part, that in all criminal prosecutions the accused shall enjoy the right “to be confronted with witnesses against him.” U.S. C. amend VI. The Supreme Court has held that the Clause permits the ONST admission of “[t]testimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross- examine.” Bullcoming v. New Mexico, 131 S.Ct. 2705, 2707, 2011 WL 2472799 (June 23, 2011) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354 (2004)). In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 557 U.S. __ (2009), the Supreme Court also made clear that forensic laboratory reports, prepared for the purpose of evidence in criminal proceedings, do constitute testimonial evidence for purposes of the Confrontation Clause. Bullcoming, 131 S.Ct. at 2707. “Absent stipulation, the [Melendez-Diaz] Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.” Id. (citing Melendez-Diaz, 129 S.Ct. at 2527). As a result, the lab report in the case sub judice is testimonial evidence and is subject to Confrontation Clause concerns. The recent case of Bullcoming v. New Mexico, 131 S.Ct. 2705, 2011 WL 2472799 (June 23, 2011), is highly instructive on the constitutional issues presented in the motion currently before this court. In that case, Defendant Bullcoming was arrested on charges of driving while intoxicated (DWI). Bullcoming, 131 S.Ct. at 2709. At trial, evidence of a forensic laboratory report certifying that Bullcoming’s blood-alcohol concentration was above the threshold levels for aggravated DWI was introduced against him. Id. The prosecution in that case did not call as a witness the analyst who actually signed the certification or who personally performed or observed the tests reported in the certification. Id. Instead, another analyst was called who was simply “familiar with the laboratory’s testing procedures, but had neither participated in nor 6 observed the test on Bullcoming’s blood sample.” Id. The forensic laboratory report was admitted as a business record and an objection concerning Bullcoming’s Confrontation Clause rights was overruled. Id. at 2712. The question for determination in that case was whether or not the Confrontation Clause of the United States Constitution permitted the prosecution “to introduce a forensic laboratory report containing a testimonial certification – made for the purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” Bullcoming, 131 S.Ct. at 2710. The Supreme Court held that the “surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” Id. In Bullcoming, the New Mexico Supreme Court had admitted the forensic laboratory report, without the testimony of the analyst who signed the report, despite acknowledging that in light of Melendez-Diaz the report did qualify as testimonial evidence and thus was subject to Bullcoming’s right of confrontation under the Sixth Amendment. Bullcoming, 131 S.Ct. at 2712. The New Mexico Supreme Court had reasoned, first, that the actual certifying analyst was a “mere scrivener” who “simply transcribed the results generated by the gas chromatograph machine.” Id. at 2713. Secondly, the New Mexico Supreme Court reasoned that the analyst who did testify, although he did not participate in the actual testing of the blood, “qualified as an expert witness with respect to the gas chromatograph machine” and “provided live, in-court testimony” and was, therefore, “available for cross-examination regarding the operation of the . . . machine, the results of [Bullcoming’s] BAC test, and the [laboratory] procedures.” Id. The 7 New Mexico Supreme Court held that the testifying analyst was a qualified surrogate for the actual analyst, sufficient to satisfy the constitutional concerns. Id. The United States Supreme Court was not persuaded by the reasoning of the New Mexico 1 Supreme Court. The Court held that where evidence is testimonial in nature, and offered in order to prove a fact at a criminal trial, and where there is testimony of one “who did not sign the certification or personally perform or observe the test reported in the certification,” then on those facts the forensic laboratory report “may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” Bullcoming, 131 S.Ct. at 2713. Because the New Mexico Supreme Court had permitted the testimonial statement of the certifying analyst to enter into evidence through the testimony of a second person, one who neither signed nor observed the actual testing, the judgment of the New Mexico Supreme Court was reversed. Id. The facts and issues presented in the instant motion are sufficiently different from the facts of Bullcoming so as to render the forensic laboratory report offered against Defendant properly admitted. In this case, it was Dr. Blum who looked at the raw data for the alcohol testing, the results of the drugs of abuse testing from computer system, the results of the other tests to ensure that everything matched at the time the report was generated, the chains of custody to verify that the samples have not been tampered with, the type of samples which were received, the technicians who drew the aliquots for the testing, and who then, personally, prepared and signed the forensic laboratory report. This is the report which was admitted at trial. Indeed, this is not a case where there was an original analyst who was a “mere scrivener” who 1 Evidence is constitutionally defined as “testimonial” when the statement has the “primary purpose of establishing or proving past events potentially relevant to later criminal prosecution.” Bullcoming, 131 S.Ct. at 2714, FN6 (citing Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006)). Furthermore, the Bullcoming Court reiterated that an “analyst’s certification prepared in connection with a criminal investigation or prosecution” is testimonial in nature and subject to Confrontation Clause concerns. Id. 8 “simply transcribed the results generated by the [testing machines],” and where at trial there was a secondary testifying witness, who had no connection with the preparation and certification of the laboratory report, who was used in an attempt to get around the concerns of the Confrontation Clause. Rather, the testimonial statement, the report itself, was prepared, signed, and testified to by the one who drafted it: Dr. Blum. In Melendez-Diaz, the Supreme Court held first that the Confrontation Clause “does not permit the prosecution to prove its case via ex parte out-of-court affidavits. . .” Melendez-Diaz, 129 S.Ct. at 2542. The Court went on, however, to clarify the point and stated “we disagree with the dissent’s contention that ‘only an analyst’s testimony suffices to prove the fact’ that ‘the substance is [what the prosecution alleges it to be].’” Id. at 2542 FN 14. We do not find that Bullcoming changed that holding. Furthermore, we do not find that Melendez-Diaz or Bullcoming demand that in order for a forensic laboratory report to be constitutionally admissible at trial that there must be one single analyst who opens the blood sample, aliquots the blood, places the blood into the machine, tests the blood, prepares the findings, drafts the report, signs the report, and testifies at trial to the report. Justice Sotomayor, in her Bullcoming concurrence, alluded to the fact that this very issue has not been definitively examined by the Court. She wrote as follows: [T]his is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos [the testifying “analyst”] conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor's [the analyst who prepared the report] conduct of the testing. The court below also recognized Razatos' total lack of connection to the test at issue. It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report. Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring). 9 Thus, the concerns of Bullcoming were largely that the person who testified to the introduction of the laboratory report was not the person who wrote the report. This presents a Confrontation Clause issue because the report itself is testimonial in nature. See Melendez-Diaz, 129 S.Ct. at 2527. “[T]he obvious reliability of a testimonial statement does not dispense with the Confrontation Clause.” Bullcoming, 131 S.Ct. at 2715 (internal citations omitted). The Confrontation Clause requires that the criminally accused defendant be afforded the opportunity to confront one who testifies against him. “Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’” Id. In the present case, Defendant was presented with the opportunity to, and did indeed, cross-examine the person who prepared and signed the report. We find that Defendant’s rights under the Confrontation Clause were not violated; as a result, the forensic laboratory report and testimony were not improperly admitted into evidence. For this reason, the finding of guilt in the present case was supported by sufficient evidence and Defendant’s post-sentence motion will be denied. Turning to Defendant’s Pennsylvania constitutional argument, for the same reasons as stated above, Defendant will not be granted relief. Article I, Section 9 of the Pennsylvania Constitution provides, in pertinent part, as follows: “In all criminal prosecutions the accused hath a right . . . to be confronted with the witnesses against him.” P.A. C. Art. I, §9. In 2003, ONST the Pennsylvania Constitution was amended to track the language of the federal constitution regarding the confrontation right. As a result, “our Confrontation Clause analysis . . . is the same for both the United States Constitution and the Pennsylvania Constitution.” Commonwealth v. Mollett, 2010 PA Super 153, ¶ 15, 5 A.3d 291, 308 FN5. Because Defendant was afforded an opportunity to cross-examine the author and subscriber of the testimonial statement offered 10 against him at trial, his Confrontation Clause rights under the Pennsylvania Constitution were not violated and the forensic laboratory report and testimony in support thereof were not improperly 2 admitted into evidence. Defendant further alleges that Dr. Blum’s testimony and report were inadmissible under Pennsylvania Rule of Evidence 705. That rule provides as follows: “The expert may testify in terms of opinion or inference and give reasons therefore; however, the expert must testify as to the facts or data on which the opinion or inference is based.” Pa.R.E. 705. The Pennsylvania rule differs drastically from its federal counterpart. Generally, the federal rules do not require the expert witness to testify to the facts upon which an opinion is based before expressing an opinion on the matter. Pennsylvania Rule of Evidence 705, however, does require the expert to testify to the facts or data on which the opinion or inference is based. The reasoning behind the Pennsylvania rule goes to the credibility of the expert as a witness. “If a jury disbelieves the facts upon which the opinion is based, the jury undoubtedly will disregard the expert’s opinion. . . . At the heart of any analysis is the veracity of the facts upon which the conclusion is based. Without the facts, a jury cannot make any determination as to validity of the expert's opinion.” Commonwealth. v. Rounds, 518 Pa. 204, 209, 542 A.2d 997, 999 (1988). In the present case, Dr. Blum did testify and disclose the facts or data upon which he based his opinion. Dr. Blum testified that he prepared his report after reviewing the raw data for the alcohol testing, the results of the drugs of abuse testing from computer system, the results of other all tests to ensure that everything matched at the time the report was generated, the chains of custody to verify that the samples have not been tampered with, the type of samples which 2 But cf. Commonwealth v. Barton-Martin, 2010 PA Super 163, 5 A.3d 363 (2010) (holding, on largely the same facts as Bullcoming, that “[b]ecause the Commonwealth did not summon at trial the analyst who prepared Appellant’s lab report, we conclude that Appellant’s rights under the Confrontation Clause were violated. . . .”) (emphasis added). In the present case, Defendant was afforded the opportunity to confront the one who prepared the lab report. As a result, there was no violation of his right of confrontation. 11 were received, and the technicians who drew the aliquots for the testing. Only then did he prepare and sign the forensic laboratory report. We have found no case that would require the expert to methodically recreate his experiments and tests in the courtroom before offering testimony of his opinion. His testimony was sufficient, first, to allow the factfinder to determine the veracity of those facts, and, secondly, to give the factfinder enough information so as to determine the appropriate weight to give the resulting opinion. For these reasons, Dr. Blum’s testimony was properly deemed admissible. Defendant also alleges that Dr. Blum’s testimony and report were inadmissible under Pennsylvania Rule of Evidence 703. That rule provides as follows: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Pa.R.E. 703. Defendant alleges that Dr. Blum’s testimony and report were inadmissible at trial under this rule because they were merely a “restatement of another’s conclusion.” We disagree. Dr. Blum testified that he looked at the actual results that were generated in the computer system in the lab data and produced a report based on those findings. As has already been stated, Dr. Blum looked at a variety and combination of sources when preparing his report. He was free to include or not include any of the information he viewed. For these reasons, his report was not simply a restatement of another’s conclusion and was, rather, his own work. For the reasons stated above, we find that the testimony and forensic laboratory report of Dr. Blum were properly admitted at trial. To sustain a conviction under 75 Pa.C.S.A. §3802(d)(1)(iii), the Commonwealth must prove that an individual drove, operated, or was in 12 actual physical control of the movement of a motor vehicle with a metabolite of a Schedule 1, Schedule 2, or non-prescribed Schedule 3 substance in their blood. Viewing the evidence presented at trial in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, we find that the trier of fact could have determined that all the elements of the crime were established beyond a reasonable doubt. Furthermore, we do not find that the verdict in this case was so contrary to the evidence as to shock one's sense of justice. For these reasons, Defendant’s Post-Sentence Motion will be denied. ORDER AND NOW, this day of September, 2011, upon consideration of Defendant’s Post- Sentence Motion, filed June 10, 2011, and for the reasons stated above, Defendant’s Motion is DENIED. BY THE COURT, __________________ Kevin A. Hess, P.J. 13 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : NO. CP-21-CR-1746-2010 : KURT NEIL SCHWAB : IN RE: POST-SENTENCE MOTION ORDER OF COURT AND NOW, this day of September, 2011, upon consideration of Defendant’s Post- Sentence Motion, filed June 10, 2011, and for the reasons contained in the accompanying opinion, Defendant’s Motion is DENIED. BY THE COURT, __________________ Kevin A. Hess, P.J. Joshua Yohe, Esquire Assistant District Attorney Tim M. Barrouk, Esquire For the Defendant :rlm