J. A02034/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
:
v. :
:
DREW RIZZO, :
:
Appellant :
: No. 60 EDA 2013
Appeal from the Judgment of Sentence July 24, 2012,
in the Court of Common Pleas of Bucks County,
Criminal Division at No(s): CP-09-CR-0001450-2012
BEFORE: FORD ELLIOTT, P.J.E., OTT, and STRASSBURGER*, JJ.
CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:
FILED SEPTEMBER 17, 2014
Because I conclude that the trial court erred by admitting hearsay
evidence with respect to how Szpanka found out about the error in the SOP
(Issue IV), I respectfully dissent.1
-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.
1
conclude, infra, that Appellant is entitled to a new trial, I would not address
the relief I would grant
is the same.
* Retired Senior Judge assigned to the Superior Court.
J. A02034/14
Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012) (internal citations
omitted).
The hearsay rule is grounded in the following principles.
The hearsay rule provides that evidence of a declarant's
out-of-court statements is generally inadmissible because such
evidence lacks guarantees of trustworthiness fundamental to the
Anglo-American system of jurisprudence. Hearsay evidence is
presumed to be unreliable because the original declarant is not
before the trier of fact and, therefore, cannot be challenged as to
the accuracy of the information conveyed. Exceptions to the
hearsay rule are premised on circumstances surrounding the
utterance which enhance the reliability of the contents of the
assurances of cross-examination and oath[.]
Commonwealth v. Chamberlain, 731 A.2d 593, 595 (internal citations
omitted).
The standard operating procedure (SOP) for the Bucks County Crime
Laboratory provides the standards for testing blood alcohol content (BAC).
al standard peak
area for all samples and controls must be within 25 percent of the average
-76.
However, analyst Joanna Szpanka (Szpanka) testified that the SOP
contained an error, and that the laboratory actually used 50 percent for the
average internal standard peak area of the calibrators.
that there was an error in the SOP, it had to accept that a mistake was
actually made. Szpanka testified that she did not make the mistake; rather,
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she testified that Josh Folger made the mistake. N.T., 7/20/2012, at 13
should have had the opportunity to cross-
examine Mr. Folger with respect to his alleged mistake. Accordingly, I
objection.
I also consider whether the admission of this evidence was harmless
Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014).
This Court has described the proper analysis as follows:
Harmless error exists if the record demonstrates
either: (1) the error did not prejudice the defendant
or the prejudice was de minimis; or (2) the
erroneously admitted evidence was merely
cumulative of other untainted evidence which was
substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error
could not have contributed to the verdict.
Id (quoting Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997)).
In this case, Szpanka testified that the standard internal recovery fell
within the 50% standard, but not within the 25% standard. N.T.,
7/20/2012, at 4. Thus, the testimony with respect to which percentage was
proper - the one used by the laboratory in practice or the one stated in its
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J. A02034/14
own SOP - was critical in this case. Moreover, the BAC goes directly to the
heart of the DUI - high rate of alcohol charge, as the Commonwealth must
harmless. Accordingly, Appellant is entitled to a new trial on this charge.2
Because Appellant is entitled to a new trial on the DUI - high rate of
alcohol conviction, I conclude that Appellant is also entitled to a new trial on
the general impairment conviction because the improper BAC testimony
3
could have contributed to the trial
2
Where improperly admitted evidence has been considered by the [fact-
finder], its subsequent deletion does not justify a finding of insufficient
Chamberlain
sufficiency of the evidence argument (Issue I) on this issue.
3
stop sign, and failing to use a turn signal are not affected by the hearsay
testimony, Appellant is not entitled to a new trial on those charges.
-4-
Com. v. Rizzo, D.
Combined Opinion