J. A02034/14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DREW RIZZO, : No. 60 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, July 24, 2012,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0001450-2012
BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 17, 2014
Appellant appeals from the judgment
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under the influence (DUI - general impairment), driving under the influence
(DUI - high rate of alcohol), careless driving, stop signs and yield signs, and
turning movements and required signals.1 Finding no error on review, we
affirm.
The trial court accurately presented the factual background:
In the early morning hours of October 25,
2011, Officer Brad Smeltzer of the Morrisville
Borough Police Department was patrolling the
400 block of South Pennsylvania Avenue in
* Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3714(a), 3323(b), and 3334(a),
respectively.
J. A02034/14
Morrisville Borough, Bucks County, Pennsylvania.
N.T. 7/19/12, pp. 6-7. At approximately 12:33 AM,
Officer Smeltzer observed a black sedan drive
through a stop sign located on the southbound ramp
of Route 1 and proceed south on Pennsylvania
Avenue. N.T. 7/19/12, p. 7. The driver of the
vehicle then made a left turn into a parking lot
without using the turn signal. N.T. 7/19/12, pp. 7-8.
The officer thereafter activated his overhead
emergency lights and effectuated a traffic stop. N.T.
7/19/12, p. 8.
When Officer Smeltzer approached the car, he
noticed that the driver of the vehicle, the Defendant,
-
N.T. 7/19/12, p. 9. An odor of alcohol emanated
Id. While conversing
with the officer, the Defendant admitted to drinking
two beers that evening. N.T. 7/19/12, pp. 9-10.
The Defendant responded slowly to the officer, but
did not slur his words. N.T. 7/19/12, p. 21.
Officer Smeltzer directed the Defendant to step
out of his vehicle and thereafter administered three
forward, six steps back and to count aloud as he did
so. The Defendant took four steps, failed to count
aloud and was unsteady on his feet. N.T. 7/19/12,
p. 12. During the second test, the Defendant was
instructed to tilt his head back, close his eyes,
outstretch his arms and touch the tip of his nose
with the tip of his finger. The Defendant touched the
bridge of his nose with the middle of his finger. N.T.
7/19/12, p. 13. Finally, the Defendant was asked to
-
directed to stand on one foot and lift the other foot
approximately six inches from the ground and count
to nine. The Defendant lifted his foot but had to
touch his foot to the ground numerous times. N.T.
7/19/12, p. 14. At no point did the Defendant
inform the officer that he suffered from any condition
that would have prevented him from adequately
completing the field sobriety tests. N.T. 7/19/12,
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p. 32. Based upon his observations and the
Officer Smeltzer formed the opinion that the
Defendant was incapable of safely operating a motor
vehicle. N.T. 7/19/12, p. 42.
Medical Center by Officer Justin Bickhardt of the
Morrisville Police Department. N.T. 7/19/12, pp. 44-
46. After arriving at the hospital, the Defendant
signed a consent form allowing the hospital staff to
draw his blood. N.T. 7/19/12, p. 46. In
Officer
N.T.
7/19/12, pp. 46, 48, 51. The
drawn at 1:30 AM on October 25, 2011. N.T.
7/19/12, pp. 47, 51; Exhibit C-1. Thereafter,
Mr.
the vials of blood and put the vials into an evidence
bag, after which point the evidence bag was sealed.
N.T. 7/19/12, pp. 48, 52
samples were later submitted to the Bucks County
Crime Laboratory for analysis. N.T. 7/19/12, pp. 56,
65
determined to be .105%. No drugs were detected.
N.T. 7/19/12, p. 67; Exhibit C-3.
Trial court opinion, 2/13/13 at 1-3 (footnote omitted).
Appellant raises the following issues on appeal:
I.
Driving Under the Influence, High Rate of
Alcohol, was supported by sufficient evidence
because the Analyst testified that the test on
the analyst testified that the written
procedures require that the internal standard
control samples must be within twenty-five
percent of the average internal standard peak
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samples fell outside of the twenty-five percent
limit.
II.
Driving Under the Influence, High Rate of
Alcohol, was supported by sufficient evidence
blood alcohol content may be as low as
0.077%[?]
III.
Driving Under the Influence, High Rate of
Alcohol, was supported by sufficient evidence
because the Commonwealth failed to develop a
blood sample[?] More specifically, contrary to
the chain of custody documents stating that
Officer Smeltzer placed the blood into
evidence, Officer Smeltzer testified that he had
no interaction or involvement with the blood
after it was drawn from [appellant] at the
hospital.
IV. Whether the Trial Court erred by allowing
Joanne Szpanka to testify that Josh Folger,
V. Whether the Tria
Driving Under the Influence, High Rate of
Alcohol, was against the weight of the evidence
because the Analyst testified that the test on
L
specifically, the analyst testified that the
written procedures require that the internal
and quality control samples must be within
twenty-five percent of the average internal
standard peak areas of calibrators and that
twenty-five percent limit.
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VI.
Driving Under the Influence, High Rate of
Alcohol, was against the weight of the evidence
blood alcohol content may be as low as
0.077%[?]
VII.
Driving Under the Influence, High Rate of
Alcohol, was against the weight of evidence
because the Commonwealth failed to develop a
blood sample[?] More specifically, contrary to
the chain of custody documents stat[ing] that
Officer Smeltzer placed the blood into
evidence, Officer Smeltzer testified that he had
no interaction or involvement with the blood
after it was drawn from [appellant] at the
hospital.
VIII.
Driving Under the Influence, General
Impairment, was against the weight of
evidence because the Trial Court as finder of
fact improperly found a reliable blood alcohol
content which could be consider[ed] in
determining whether [appellant] was impaired
and the remaining testimony and evidence
provided was if insufficient weight to support a
conviction[?]
-6 (footnotes and suggested answers omitted).
Preliminarily, we note a duplication of issues above. Appellant raises
the same core issue at Issues I and V, II and VI, and III and VII. The only
difference is that the former issue is cast as a sufficiency of the evidence
claim while the latter issue is cast as a weight of the evidence claim. We
determine that the core issues described at Issues I and V and Issues II and
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VI go to the sufficiency of the evidence; consequently, we will not review
Issues V and VI because the core issues do not implicate the weight of the
evidence. On the other hand, we find that the core issue described at Issues
III and VII goes to the weight of the evidence; consequently, we will not
review Issue III as sufficiency of the evidence is not implicated.
connected. Issue I challenges the sufficiency of the evidence:
A challenge to the sufficiency of the evidence is
a question of law, subject to plenary review. When
reviewing a sufficiency of the evidence claim, the
appellate court must review all of the evidence and
all reasonable inferences drawn therefrom in the
light most favorable to the Commonwealth, as the
verdict winner. Evidence will be deemed to support
the verdict when it establishes each element of the
crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The
Commonwealth need not preclude every possibility
of innocence or establish the defe
mathematical certainty. Finally, the trier of fact
while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Teems, 74 A.3d 142, 144-145 (Pa.Super. 2013)
(citations omitted), appeal denied, 79 A.3d 1098 (Pa. 2013), citing
Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010),
appeal denied, 29 A.3d 797 (Pa. 2011).
Issue IV questions the admission of alleged hearsay evidence. The
following principles guide our consideration of whether the trial court erred
in its conclusion.
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The admission of evidence is committed to the sound
discretion of a trial court and will not be reversed
absent an abuse of discretion. Discretion is abused
where the law is not applied. Where improperly
admitted evidence has been considered by the [fact-
finder], its subsequent deletion does not justify a
finding of insufficient evidence and the remedy in
such a case is the grant of a new trial.
Commonwealth v. Chamberlain, 731 A.2d 593, 595 (Pa. 1999) (internal
quotations and citations omitted), cert. denied, Chamberlain v.
Pennsylvania, 132 S.Ct. 2377 (2012).
-of-
court statement, which is offered in evidence to
prove the truth of the matter asserted. Hearsay
statements are generally inadmissible unless they
fall under an enumerated exception. An out-of-court
statement is not hearsay when it has a purpose
other than to convince the fact finder of the truth of
the statement.
Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012) (internal citations
omitted), cert. denied, Busanet v. Pennsylvania, 134 S.Ct. 178 (2013).
In Issue I, appellant argues that the evidence was insufficient because
the BAC result testified to by analyst Joanne Szpanka was unreliable.
Specifically, appellant contends that Szpanka contradicted her testimony
when she first testified that the result had to conform to a certain threshold
20-24.) As a corollary to this issue, in Issue IV, appellant also argues that
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how she found -30.)
The SOP for the Bucks County Crime Laboratory provides standards for
samples and controls must be within 25 percent of the average internal
75-76.) Szpanka later testified that this 25 percent figure was a clerical
error, and the laboratory utilized a 50 percent figure. (Notes of testimony,
50 Id.
within 50 percent, but not within 25 percent. (Notes of testimony, 7/20/12
at 4.)
Szpanka testified about this clerical error as follows.
Q.
not to report that result. Correct?
A. Upon reviewing the SOP for the laboratory, it
had come to my attention that there is a
clerical error --
Counsel for Appellant: Objection.
A. -- in the SOP.
Overruled.
her attention from, Your Honor. Hearsay, Your
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A. You put the SOP in front of me. I read the
SOP, turned the SOP to you and the ADA, and
said the 25 percent comment was a
typographical, clerical error. Last lab. The
laboratory practice is within 50 percent, and it
always has been.
Id. at 5.
Szpanka later testified, on re-direct examination, about how this
clerical error came about. She stated that Josh Folger, the person who
Id. at 13.) Counsel for appellant again objected to
hearsay. The trial court permitted Szpanka to testify because it was her
understanding of why she was following a different protocol. (Id.)
On appeal, appellant argues that the trial court erred in failing to
sustain these hearsay objections. The trial court concluded that the
evidence was not hearsay, and reasoned as follows.
There is no evidence on the record that the
-of-
court statements of a third party. In any case, the
explanation was not being offered for the truth of the
matter asserted, i.e. that the error in fact occurred in
that fashion. The import of the testimony was that
the written procedural protocol relied upon by the
defense contained incorrect information.
Trial court opinion, 2/13/13 at 7.
We agree. When Szpanka testified that it had come to her attention
that there was a clerical error in the SOP, that does not indicate that
someone told her about it. Appellant argues that her language to the effect,
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one had told her of the
suggests that Szpanka discovered the error herself. Had Szpanka testified,
indica
that Folger was using a prior method from another laboratory as a template
for his SOP, this is not an assertion that Folger told her this information.
Szpanka may have witnessed Folger preparing the SOP using the other
for the truth of the matter asserted since the origin of the error in the SOP
was of no moment. It was the existence of the 25 percent error itself that
was critical and Szpanka testified to this as if it were first-hand knowledge
testimony that she was relying on, or repeating, an out-of-court statement
by a third party. Issue IV is without merit.
re-direct, the Commonwealth adduced testimony from Szpanka that using
(Notes of testimony, 7/20/12 at 12-
evidence was insufficient using the incorrect 25% measure thus relies upon
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an improper predicate to reach a false conclusion. We remind appellant that
our standard of review requires us to view the evidence in the light most
favorable to the Commonwealth. The Commonwealth produced evidence
that the proper measure was 50% and that using that parameter,
Issue I is without merit.
In Issue II, appellant argues that the evidence was insufficient
be as low as .077%.
Here, appellant was convicted of DUI - high rate of alcohol, which
provides as follows.
(b) High 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
or breath is at least 0.10% but less than
0.16% 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.A. § 3802(b).
Appellant
24-27.) The trial court concluded that appellant
proper procedure for calculating blood alcohol content would not result in a
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inion, 2/13/13 at 7
(emphasis in original).) We agree.
On cross-examination, Szpanka testified as follows:
Q. And a calibration curve, basically, is an
equation that allows you to extrapolate a
blood/alcohol content?
A.
Q. Okay. So using the average area of 272,582,
you came up -- plugging into the calibration
curve, you came up with a result of .0777?
A. Correct.
Notes of testimony, 7/20/12 at 8.
On re-direct examination, Szpanka clarified this testimony. She
test
result was 193,393. It was not the average of the calibrators. It was
Id. at 15.) The
ed how counsel for appellant reached
the .077 number.
[ADA]: And what [counsel for appellant] was using
was the average of the calibrators to get that .077
number. Correct?
A. Yes.
Id. at 15-16.
Based on a review of this testimony, we agree with the trial court that
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hypothetical situation
testified that in this case, because the actual internal standard recovery
the statutory range of .10% and .16%. Accordingly, Issue II is without
merit.
As previously noted, we will not be reviewing Issues III, V, and VI. In
Issue VII, appellant argues that his conviction for DUI High Rate of Alcohol
was against the weight of the evidence because the Commonwealth failed to
establish a sufficient chain of custody for his blood sample. We note our
standard of review:
A motion for a new trial based on a claim that
the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.
Commonwealth v. Widmer, 560 Pa. 308, 319, 744
A.2d 745, 751-52 (2000); Commonwealth v.
Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189
(1994). A new trial should not be granted because
of a mere conflict in the testimony or because the
judge on the same facts would have arrived at a
different conclusion. Widmer, 560 Pa. at 319-20,
certain facts are so clearly of greater weight that to
ignore them or to give them equal weight with all the
Id. at 320, 744 A.2d at
752 (citation omitted). It has often been stated that
verdict is so contrary to the evidence as to shock
ard of a new trial is
imperative so that right may be given another
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Brown, 538 Pa. at 435, 648
A.2d at 1189.
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a
review of the exercise of discretion,
not of the underlying question of
whether the verdict is against the
weight of the evidence. Brown, 648
A.2d at 1189. Because the trial judge
has had the opportunity to hear and see
the evidence presented, an appellate
court will give the gravest consideration
to the findings and reasons advanced by
the trial judge when reviewing a trial
against the weight of the evidence.
Commonwealth v. Farquharson, 467
Pa. 50, 354 A.2d 545 (Pa.1976). One of
the least assailable reasons for granting
conviction that the verdict was or was
not against the weight of the evidence
and that a new trial should be granted in
the interest of justice.
Widmer, 560 Pa. at 321-22, 744 A.2d at 753
(emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).
In its opinion, the trial court identified the correct standard by which it
court later provided this analysis on chain of custody:
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To establish chain of custody, the Commonwealth
need not produce every individual who came into
contact with the evidence, nor need it eliminate all
possibilities of tampering. Commonwealth v. Rick,
366 A.2d 302 (Pa.Super. 1976). Evidence may be
admitted despite gaps in testimony regarding its
custody. Commonwealth v. Bruner, 564 A.2d 1277,
1285 (Pa.Super. 1989) (citing Commonwealth v.
Hudson, 489 Pa. 620, 414 A.2d 1381 (1980)). Gaps
in the chain of custody go to the weight that is to be
afforded evidence, not to its admissibility.
Commonwealth v. Copenhefer, 553 Pa. 285, 312,
719 A.2d 242, 256 (1998).
The evidence admitted at trial in the instant
case established that, after the initial car stop, the
Center by Officer Bickhardt. N.T. 7/19/12, pp. 44-
46. Thomas Mazzo, a registered nurse, drew the
Bickhardt. N.T. 7/19/12, pp. 46, 48, 51; Exhibit C-
the vials of blood, placed the vials into an evidence
bag and sealed the bag. N.T. 7/19/12, pp. 48, 52.
Officer Bickhardt then transported the evidence to
the police station where it was secured in evidence.
N.T. 7/19/12, p. 48. Lt. Thomas Herron
subsequently transported the evidence to the Bucks
County Crime Laboratory for purposes of analysis.
N.T. 7/19/12, pp. 56, 65. This evidence is clearly
sufficient to permit admission of the blood test
and weight of the evidence base[d] upon chain of
custody is, therefore, without merit.
In challenging the chain of custody, the
Defendant relies on Exhibit C-1, the blood alcohol
evidence kit form and Exhibit C-
submission form, which indicate that
Officer Smeltzer placed the blood samples in
evidence at the police station and not
Officer
testimony that he did not handle the evidence. N.T.
7/19/12 p. 43. This contradiction does not alter the
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conclusion that evidence of the blood test analysis
was admissible. In Commonwealth v. Seibert, 799
A.2d 54, 61 (Pa.Super.2002), the court held that the
fact that the Emergency Room technician did not
preclude admission of the blood test results. The
court held that the previously completed, signed,
and dated form explaining the performed procedures
and corresponding results was sufficient to establish
a chain of custody. Commonwealth v. Seibert, 799
A.2d 54, 61, (Pa.Super.2002). In the instant case,
the Blood Alcohol Kit Evidence Report, Exhibit C-1,
and the Bucks County Crime Laboratory Chain of
Custody Report, Exhibit C-2, establish the blood was
transferred from the registered nurse who drew the
blood to Office[r] Bickhardt. Officer Bickhardt
transferred custody of the evidence to
Officer Smeltzer, who placed the item into evidence.
Under the holding of Seibert, this evidence was
sufficient to establish chain of custody. Moreover,
even with this gap in the chain of custody, the
evidence is still admissible. Commonwealth v.
Bruner, supra. As stated above, gaps in the chain of
custody go to the weight that is to be afforded
evidence, not to its admissibility. Commonwealth v.
Copenhefer, supra.
Id. at 8-9.
We find no abuse of discr
weight of the evidence pertaining to the chain of custody of the blood
specific complaint. There is no error.
Finally, in Issue VIII, appellant asserts that his conviction for DUI
General Impairment was against the weight of the evidence. The trial court
provided the following analysis:
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Finally, the Defendant avers that the conviction
of Driving Under the Influence General Impairment
was against the weight of the evidence because the
Defendant was impaired, and that the remaining
testimony and evidence was of insufficient weight to
support the verdict. As discussed above, the
content, considered in conjunction with evidence
observations of the De
failure to properly perform field sobriety tests is
more than sufficient to support the conclusion that
the Defendant was incapable of safe driving. His
conviction for violating section 3802(a)(1) of the
Driving Under the Influence of Alcohol statute was,
therefore, proper.
Id. at 9-10.
trial court catalogued the several factors leading to its verdict, particularly
was .105%. There is no error here
either.
Accordingly, having found no error in the issues raised on appeal, we
will affirm the judgment of sentence.
Judgment of sentence affirmed.
Ott, J. joins the Memorandum.
Strassburger, J. files a Concurring and Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/2014
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