J.S45039/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
BRANDON R. HARRELL, :
:
Appellant : No. 2428 EDA 2013
Appeal from the Judgment of Sentence July 22, 2013
In the Court of Common Pleas of Bucks County
Criminal Division No(s).: CP-09-CR-0006412-2012
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 22, 2015
Appellant, Brandon R. Harrell, appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas following a jury trial
and his convictions for manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance1 (“PWI”), possession of a
controlled substance,2 and possession of drug paraphernalia.3 Appellant
contends the trial court erred in (1) failing to dismiss the prosecution for
*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
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pre-arrest delay, (2) failing to require the Commonwealth to disclose the
identity of the confidential informant, and (3) sustaining an objection when
defense counsel asked the forensic chemist why she was no longer with the
Bucks County Crime Lab. Additionally, Appellant claims the court abused its
discretion in allowing both forensic chemists to testify that the substance in
question was cocaine when neither rendered an opinion to a reasonable
degree of scientific certainty. We affirm.
The trial court summarized the facts of this case as follows:
Pursuant to a lead from a confidential informant (“CI”), the
Bristol Township Police Department conducted a narcotics
investigation targeting Appellant. The CI and Officer Dino
Lepore of the Bristol Township Police Department set up a
drug sale with Appellant over the phone. The sale was to
take place in the area of Pond and Washington Streets in
Bristol Borough, in Bucks County, Pennsylvania, on
November 4, 2010.
On November 4, 2010[,] Officer Lepore acted in an
undercover capacity and met the CI at a predetermined
location. Officer Lepore conducted a pat down search of
the CI and subsequently searched his vehicle. He
determined the CI did not have any money or contraband
on his person or in his vehicle prior to meeting Appellant.
Officer Lepore then gave the CI $100 to use in the drug
sale.[4]
Officer Lepore and the CI traveled from the
predetermined location to a parking lot on the corner [of]
Pond and Washington Streets in Bristol Borough and
parked the vehicle. The CI was seated in the driver’s seat
and Officer Lepore was seated in the passenger’s seat.
After being parked for a few minutes, Appellant drove up
4
As set forth in further detail, infra, the transaction was observed by
Sergeant Joseph Moors and Officer Elifa Soto.
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in a Nissan vehicle and parked next to the CI’s vehicle on
the driver’s side. Appellant exited the Nissan vehicle and
walked across the front of the CI’s vehicle to the
passenger’s side door. Upon realizing Officer Lepore was
in the passenger’s seat, Appellant entered the vehicle from
the rear passenger’s side door. The CI introduced Officer
Lepore to Appellant as his co-worker, at which time Officer
Lepore turned around to shake Appellant’s hand. Officer
Lepore was not dressed in his police uniform, but was
dressed in plainclothes at this time.
While seated in the CI’s vehicle, the dome light was
turned on and Officer Lepore saw Appellant extend his
right hand and give the CI three glassine baggies that
contained a white, rock-like substance. The CI took the
baggies and placed them in the center console of the
vehicle. The CI then turned around and handed Appellant
$100 that was supplied by the Bucks County Narcotics
Fund. Appellant then left the vehicle. The entire
encounter took about three to four minutes.
The CI and Officer Lepore drove back to the
predetermined location to meet with two other police
officers. Once there, the CI turned over the glassine
baggies to Sergeant Joseph Moors, the evidence custodian,
who processed the evidence. Appellant was not arrested
that day because the CI was to be used in future drugs
buys. . . .
Sergeant Moors was the evidence custodian and
received the glassine baggies from the CI on November 4,
2010. He brought the evidence to the Bucks County Crime
Lab where it was tested. Sergeant Moors also ran a
license plate check on the Nissan vehicle present at the
drug buy and the vehicle was registered to Appellant. On
April 12, 2012, Pennsylvania State Police arrested
Appellant.
Trial Ct. Op., 12/10/13, at 2-4 (references to record omitted).
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Following a jury trial,5 Appellant was found guilty of all charges.
Appellant was sentenced to eleven-and-one-half to twenty three months’
imprisonment. This timely appeal followed. Appellant filed a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal 6 and the trial
court filed a responsive opinion.
Appellant raises the following issues for our review:
A. Did the Lower Court err in failing to dismiss the
prosecution for pre-arrest delay?
B. Did the Lower Court err in failing to require the
Commonwealth to disclose the identity of the confidential
informant?
C. Did the Lower Court err in sustaining an objection when
defense counsel asked forensic chemist, Carol Sendecki
“Why are you no longer with the Bucks County Crime
Lab?”
D. Did the Lower Court abuse its discretion in allowing
both forensic chemists to testify that the substance in
question was cocaine, when neither rendered an opinion to
a reasonable degree of scientific certainty and did this
error affect the sufficiency of the evidence?
5
Appellant was also charged in connection with a drug buy that occurred on
November 12, 2010. Following the consolidated jury trial, he was found not
guilty of the charges stemming from the November 12th buy. Trial Ct. Op.
at 2.
6
We note that Appellant also raised the following issue in his Pa.R.A.P.
1925(b) statement: “The Lower Court erred in failing to instruct the jury
regarding the testimony of an expert witness, as both forensic chemists
rendered expert opinions.” Appellant’s Pa.R.A.P. 1925(b) Statement,
10/8/13, at 2. This issue was abandoned on appeal as it was not raised in
Appellant’s brief. See Commonwealth v. Dunphy, 20 A.3d 1215, 1218
(Pa. Super. 2011).
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Appellant’s Brief at 5.
First, Appellant contends the trial court erred in failing to dismiss the
criminal complaint due to pre-arrest delay.7 Appellant avers his right to due
process was violated by the pre-arrest delay.8 Id. at 11. He claims he was
prejudiced due to the delay because “[h]e was unable to specifically state his
whereabouts on the night[ ] in question.” Id. at 14. Additionally, he avers
7
On December 28, 2012, Appellant filed an omnibus pre-trial motion to
dismiss based upon pre-arrest delay. Following a hearing, the trial court
denied the motion. See N.T., 3/21/13, at 81.
8
We note Appellant argues “where the evidence shows that the delay was
the product of intentional, bad faith, or reckless conduct by the prosecution
a court must find a violation of due process,” citing Commonwealth v.
Scher, 803 A.2d 1204 (Pa. 2002) (plurality). Appellant’s Brief at 12. In
Commonwealth v. Wright, 865 A.2d 894 (Pa. Super. 2004), discussing
the divergent views of the members of the Pennsylvania Supreme Court, this
Court opined:
Although the Pennsylvania Supreme Court, in
Commonwealth v. Scher, [ ] 803 A.2d 1204 ([Pa.]
2002) (Opinion Announcing the Judgment of the Court), .
. . sought to resolve the issue confronted by trial courts
when there has been a significant period of delay between
a crime and the prosecution of that crime, that Court was
unable to agree on a controlling standard as to when
such delay constitutes a due process violation.
Id. at 900 (emphasis added and footnote omitted). Scher was a plurality
opinion. “While the ultimate order of a plurality opinion, i.e., an affirmance
or reversal, is binding on the parties in that particular case, legal conclusions
and/or reasoning employed by a plurality certainly do not constitute binding
authority.” Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super.
2011) (en banc) (citation omitted). Therefore, Appellant’s reliance upon
Scher is unavailing. See id.
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prejudice because his girlfriend, Natalie Wolfe, could have served as an alibi
witness for him but, due to the delay, she was unable to do so. Id. at 13,
15.
“As this is an issue involving a constitutional right, it is a question of
law; thus, our standard of review is de novo, and our scope of review is
plenary.” Commonwealth v. Baldwin, 58 A.3d 754, 762 (Pa. 2012). The
Pennsylvania Supreme Court holds
a defendant’s due process right against pre-arrest delay is
limited; law enforcement is not required to make an arrest
as soon as enough evidence has been accumulated to
constitute probable cause, or even proof beyond a
reasonable doubt. Indeed, there is no right to be arrested
or right to prosecution. Only if a defendant can show “that
the passing of time caused actual prejudice and that
the prosecution lacked sufficient and proper reasons
for postponing the prosecution,” is he entitled to relief.
As such, a due process violation will be found only in
“extreme cases” when there are “no valid reasons” for the
delay.
Commonwealth v. Simpson, 66 A.3d 253, 283 (Pa. 2013) (emphasis
added and citations omitted).
In Simpson, the defendant asserted “he was prejudiced because,
after the three-year delay, he could no longer recall his whereabouts at the
time of the crime or find any witness who could testify as to his whereabouts
. . . .” Id. at 283. The Simpson Court noted that “the gravamen of
Appellant’s assertion of prejudice—that he could not remember where he
was on the night in question, depriving him of alibi witnesses—was rejected
in [United States v. ] Marion, [404 U.S. 307, 325-26 (1971)].” Id.
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Instantly, the trial court held a hearing on the omnibus pre-trial
motion for dismissal of the charges against Appellant for pre-arrest delay.
Officer Lepore testified the CI worked on other cases for Bristol Borough.
N.T., 3/21/13, at 11. There were ten parties and approximately twenty-five
controlled buys after the November 4th buy from Appellant. Id. at 12.
Undercover officers are paired with CI’s in order to make a buy. Id. at 12-
13. If the identity of the CI was exposed, both the CI and the undercover
officer’s safety would be in danger. Id. at 13. The reason for the pre-arrest
delay was the ongoing drug purchasing activity of the CI and undercover
officer during this time period. Id.
Appellant testified that at the time he learned of the charges against
him, he was living with his girlfriend. Id. at 34. He was preparing to have
surgery on his left ankle. Id. He “was home most of the night.” Id. at 35.
He did not have a cell phone because he was unemployed and waiting for his
unemployment and workers’ compensation. Id. He could not remember
specifically where he was on November 4, 2010. Id. at 38.
We find the Commonwealth had valid reasons for the pre-arrest delay,
and thus, Appellant’s constitutional rights were not violated. See Simpson,
66 A.3d at 283. Appellant has not shown actual prejudice. Our Supreme
Court has found that the averment that a defendant could not remember his
whereabouts at the time of the crime and could not find witnesses to testify
as to his whereabouts did not show he was prejudiced by the delay. See id.
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Next, Appellant argues the court erred in failing to require the
Commonwealth to disclose the identity of the CI.9 Appellant concedes that
“[i]n the case at hand, admittedly, other corroboration of the undercover
officer’s testimony exists for the November 4th transaction, albeit
contradictory.” Appellant’s Brief at 21. Appellant asserts that his defense at
trial was mistaken identity. Id. at 23.
“Our standard of review of claims that a trial court erred in its
disposition of a request for disclosure of an informant’s identity is confined to
abuse of discretion.” Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.
Super. 2013) (citation omitted). In Watson, one police officer observed the
drug transaction between the defendant and the CI. Id. at 606. The
defendant claimed the court erred in denying his request for disclosure of
the identity of the CI because his defense was mistaken identity. Id. at 607.
This Court rejected the defendant’s argument in Watson because “officers
executing the warrant observed him throw multiple vials of crack cocaine
under a parked vehicle in an obvious attempt to avoid arrest.” Id. at 609.
This Court opined:
Under Pennsylvania Rule of Criminal Procedure 573, a trial
court has the discretion to require the Commonwealth to
reveal the names and addresses of all eyewitnesses,
including confidential informants, where a defendant
makes a showing of material need and reasonableness:
9
On November 16, 2012, Appellant filed a pre-trial motion to disclose the
identity of the CI. Following a hearing, the court denied the motion. See
N.T., 3/21/13, at 81-82.
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(a) In all court cases, except as otherwise provided
in Rule 230 (Disclosure of Testimony Before
Investigating Grand Jury), if the defendant files a
motion for pretrial discovery, the court may order
the Commonwealth to allow the defendant’s attorney
to inspect and copy or photograph any of the
following requested items, upon a showing that they
are material to the preparation of the defense, and
that the request is reasonable:
(i) the names and addresses of eyewitnesses. . . .
Pa.R.Crim.P. 573(B)(2)(a)(i).
The Commonwealth enjoys a qualified privilege to withhold
the identity of a confidential source. In order to overcome
this qualified privilege and obtain disclosure of a
confidential informant’s identity, a defendant must first
establish, pursuant to Rule 573(B)(2)(a)(i), that the
information sought is material to the preparation of the
defense and that the request is reasonable. Only after the
defendant shows that the identity of the confidential
informant is material to the defense is the trial court
required to exercise its discretion to determine whether
the information should be revealed by balancing relevant
factors, which are initially weighted toward the
Commonwealth.
In striking the proper balance, the court must consider the
following principles:
A further limitation on the applicability of the
privilege arises from the fundamental requirements
of fairness. Where the disclosure of an informer’s
identity, or of the contents of his communication, is
relevant and helpful to the defense of an accused, or
is essential to a fair determination of a cause, the
privilege must give way. In these situations[,] the
trial court may require disclosure and, if the
Government withholds the information, dismiss the
action.
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[N]o fixed rule with respect to disclosure is
justifiable. The problem is one that calls for
balancing the public interest in protecting the flow of
information against the individual’s right to prepare
his defense. Whether a proper balance renders
nondisclosure erroneous must depend on the
particular circumstances of each case, taking into
consideration the crime charged, the possible
defenses, the possible significance of the informer’s
testimony, and other relevant factors.
Commonwealth v. Marsh, [ ] 997 A.2d 318, 321–322
([Pa.] 2010).
Id. at 607-08 (some citations omitted).
The trial court found that the officers involved in the drug buy had the
opportunity to observe Appellant. The court concluded based upon the
evidence, the “likelihood of misidentification is so minimal that the qualified
privilege of the Commonwealth to protect the identity of the CI was not
overcome.” Trial Ct. Op. at 10. We agree no relief is due.
At trial, Officer Lepore testified that he saw Appellant when he walked
up to the passenger side of the vehicle he was seated in and knocked on the
window. N.T., 3/25/13, at 17. Appellant got into the vehicle and Officer
Lepore shook hands with him. Id. at 18. He saw Appellant hand the CI the
“three glassine baggies that contained a white rock-like substance.” Id. at
18-19. He stated that he was “[o]ne hundred percent positive” that
Appellant was the man he shook hands with on November 4th. Id. at 20.
Sergeant Moors testified he saw Appellant arrive from his seat in the
passenger side of the undercover vehicle. N.T., 3/22/13, at 37. He was in
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the vehicle with Officer Elifa Soto. Id. He saw Appellant walk up to the van.
Id. at 38. Appellant was approximately fifteen to twenty feet from the
undercover vehicle. Id. He testified that there was no question that
Appellant was “definitely the person who came to the van that night.” Id. at
39. He saw Appellant for “a couple minutes” after he exited the van. Id. at
40. There was no question whatsoever that the person he saw leave the
van was Appellant. Id.
Officer Soto saw Appellant walk up to the van on November 4th. Id.
at 150. Officer Soto identified Appellant as the person he saw without any
doubt. Id. at 151. After Appellant left the scene, he met with the CI,
Officer Lepore and Sergeant Moors. Id. He stated “Officer Lepore had the
drugs and handed it over to Sergeant Moors.” Id. at 152.
Instantly, Officers Soto and Lepore and Sergeant Moors observed
Appellant and positively identified him as the person involved in the drug
buy. We discern no abuse of discretion by the trial court in denying the
request to disclose the identity of the confidential informant. See Watson,
69 A.3d at 609. As in Watson, we reject Appellant’s claim that his defense
of mistaken identity required disclosure, given the observations of the police
officers. See id. at 609.
Next, Appellant claims that the court erred in sustaining an objection
when defense counsel asked forensic chemist Carol Sendecki “Why are you
no longer with the Bucks County Crime Lab?” Appellant’s Brief at 25.
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Appellant avers the evidence was relevant because it was intended “to
ascertain whether her termination of employment at the Bucks County Crime
Lab was potentially related to the handling of evidence . . . .” Id. at 27.
As a prefatory matter, we consider whether Appellant has waived this
issue. On appeal, Appellant fails to cite to the place in the record where this
claim was preserved before the trial court. See Pa.R.A.P. 2117(c) (requiring
statement of case to specify state of proceedings at which issue sought to be
reviewed on appeal was raised), 2119(e) (requiring same of argument
section of appellate brief); Commonwealth v. Fransen, 42 A.3d 1100,
1106 n.11 (Pa. Super. 2012) (en banc) (“Failing to direct this Court to
specific portions of the record in support of an argument violates Pa.R.A.P.
2119 (c) [and for] that reason alone, we could conclude this issue is
waived.”), appeal denied, 76 A.3d 538 (Pa. 2013). However, we don’t find
waiver on this basis.
Appellant did not file a post-sentence motion. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). Instantly, however, the certified record does not
reveal whether Appellant was apprised of the need to file post-sentence
motions to preserve issues for appeal. In Commonwealth v. Malovich,
903 A.2d 1247 (Pa. Super. 2006), this Court opined:
We will not conclude that [the a]ppellant forwent the
opportunity to raise issues via post-sentence motions when
the sentencing court did not tell him he could file such
motions. Given that [the a]ppellant was unaware of the
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need to preserve claims in a motion for reconsideration,
we find that he has not waived those claims on appeal.
Moreover, we note that the Commonwealth has not
argued waiver but, instead, has addressed [the
a]ppellant’s arguments. The Commonwealth’s brief and
the record give us ample opportunity for meaningful
judicial review of these claims.
Id. at 1252 (citations omitted).
Given the absence of evidence that Appellant was advised of the need
to preserve his claims in a post-trial motion, and the fact that the
Commonwealth did not argue waiver, we decline to find the issue waived.
See id.
Our standard of review is well-established:
The admission of evidence is a matter vested within
the sound discretion of the trial court, and such a
decision shall be reversed only upon a showing that
the trial court abused its discretion. In determining
whether evidence should be admitted, the trial court
must weigh the relevant and probative value of the
evidence against the prejudicial impact of the
evidence. Evidence is relevant if it logically tends to
establish a material fact in the case or tends to
support a reasonable inference regarding a material
fact. Although a court may find that evidence is
relevant, the court may nevertheless conclude that
such evidence is inadmissible on account of its
prejudicial impact.
Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014), (citation omitted).
Pennsylvania Rule of Evidence 103 provides in pertinent part:
(a) Preserving a Claim of Error. A party may claim
error in a ruling to admit or exclude evidence only:
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* * *
(2) if the ruling excludes evidence, a party informs the
court of its substance by an offer of proof, unless the
substance was apparent from the context.
Pa.R.E. 103(a)(2).10
Ms. Sendecki testified that she had worked for the Bucks County Crime
Lab as a forensic chemist between November 17, 2010 and December 22,
2010. N.T., 3/25/13, at 45. Appellant’s argument centers on the following
exchange:
[Defense counsel]: Ma’am, why are you no longer with the
Bucks County Crime Lab?
[Commonwealth]: I’ll object to relevance.
The Court: Sustained.
10
We note the rule was rewritten on January 17, 2013. The prior rule
provided:
(a) Effect of Erroneous Ruling. Error may not be
predicated upon a ruling that admits or excludes evidence
unless
* * *
(2) Offer of Proof. In case the ruling is one excluding
evidence, the substance of the evidence was made known
to the court by offer or by motion in limine or was
apparent from the context within which the evidence was
offered.
Pa.R.E. 103(a)(2).
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Id. at 57. Defense counsel resumed his cross-examination of the witness,
without an offer of proof. See id.
The trial court opined:
This [c]ourt found that any evidence of why Ms. Sendecki
was no longer at the Bucks County Crime Lab was not
relevant to the current case. Absent an offer of proof from
Defense Counsel that Ms. Sendecki’s termination of
employment at the Bucks County Crime Lab was directly
related to the handling of evidence, which was not present
here, such evidence is irrelevant and inadmissible. The
objection by the Commonwealth was properly sustained.
Trial Ct. Op. at 11. We agree. Appellant does not aver “the substance was
apparent from the context.” See Pa.R.Evid. 103(a)(2). We discern no
abuse of discretion. See Antidormi, 84 A.3d at 749.
Lastly, Appellant argues the trial court abused its discretion in
permitting both laboratory technicians, Ms. Sendecki and Joann Szpanka, to
testify that the substance in question was cocaine when neither rendered an
opinion to a reasonable degree of scientific certainty.11 Appellant’s Brief at
28. Appellant avers the court erred in admitting the testimony of Szanka
11
We note Appellant contends “[t]his affected the sufficiency of the evidence
to convict” him. Appellant’s Brief at 28. Although not raised before the trial
court, the sufficiency of the evidence can be raised for the first time on
appeal. Pa.R.Crim.P. 606(A)(7). Appellant, however, did not raise this
issue in his Pa.R.A.P. 1925(b) statement. “[W]e observe generally that
issues not raised in a Rule 1925(b) statement will be deemed waived for
review.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011); see Pa.R.A.P. 1925(b)(4)(vii) (providing “Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). Therefore, we find Appellant has waived the
issue on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Hansley, 24 A.3d at 415.
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because she “should have been qualified and accepted as an expert.”
Appellant’s Brief at 29.
“The admission of evidence is a matter vested within the sound
discretion of the trial court . . . .” Antidormi, 84 A.3d at 749.
While an expert need not use “magic words,” the
foundation of her opinion must still be sturdy. As our
Supreme Court has emphasized, the expert must base the
substance of her opinion on a reasonable degree of
certainty instead of mere speculation. Commonwealth v.
Spotz,[ ] 756 A.2d 1139, 1150 ([Pa.] 2000) (forensic
pathologist’s testimony in first-degree murder trial as to
victim’s manner of death was properly based on
reasonable degree of medical certainty, though
pathologist did not use those “magic words,” where
pathologist explained that victim had been shot in neck
and chest, that amount of hemorrhage surrounding
gunshot wounds indicated she was shot while she was
alive, and that minimal hemorrhage surrounding other
wounds indicated she was run over after she died).
Commonwealth v. Gonzalez,109 A.3d 711, 727 (Pa. Super. 2015)
(emphases added).
As a prefatory matter, we consider whether Appellant has waived his
claim regarding Ms. Sendecki. In Commonwealth v. Ballard, 80 A.3d 380
(Pa. 2013), our Supreme Court held that appellant waived his claims
regarding the testimony of a witness by failing to object at trial. Id. at 406.
Appellant does not cite to the place in the record where this claim was
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preserved before the trial court. See Pa.R.A.P. 2117(c). Appellant did not
object to her testimony at trial.12
The trial court opined:
Ms. Sendecki, a forensic chemist at the Bucks county
Crime Lab, also testified that the substance in question
was cocaine.[13] Testimony of Ms. Sendecki’s qualifications
as a forensic chemist, including her bachelor’s degree in
chemistry[14] and her almost thirty years’ experience in the
field,[15] were elicited on cross-examination by Defense
Counsel. On re-direct examination by the Commonwealth,
Ms. Sendecki testified that she determined the substance
to be cocaine. Defense Counsel did not object to the
witness testifying that the substance was cocaine on re-
direct examination. Counsel’s failure to object to the
testimony at trial constitutes a waiver and Appellant
cannot raise this issue for the first time on [a]ppeal.
Trial Ct. Op. at 13. We agree.
Even assuming, arguendo, that the claim was preserved, it is without
merit. Ms. Sendecki testified regarding the laboratory report she prepared.
N.T., 3/25/13, at 46. She was “qualified to be an expert witness in the
analysis of drugs.” Id. at 65. She concluded that the substance was
cocaine. Id. at 67. An expert need not use “magic words.” See Gonzalez,
109 A.3d at 727.
12
At the conclusion of Ms. Sendecki’s testimony, the court asked defense
counsel “Anything else . . . ?” and he replied, “No, Your Honor.” N.T.,
3/25/13, at 71.
13
See N.T., 3/25/13, at 67.
14
See N.T., 3/25/13, at 51.
15
See N.T., 3/25/13, at 50.
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Appellant also contends the trial court erred in permitting Ms.
Szpanka, a forensic analyst at the Bucks County Crime Lab, to testify that
the substance in question was cocaine, without rendering an opinion to a
reasonable degree of scientific certainty. Appellant’s Brief at 28. He claims
“the witness should have been qualified and accepted as an expert.” Id. at
29. In support of his contention that the court erred in permitting her
testimony without rendering an opinion, Appellant cites Pa.R.Evid. 702. Id.
We find no relief is due.16
At trial, Ms. Szpanka testified for the Commonwealth. N.T., 3/22/13,
at 82. On cross-examination, defense counsel asked if she had been
certified as an expert and she stated that she had not. Id. at 116. Counsel
stated he had no further questions. Id. The court requested a sidebar
conference and the following exchange took place:
The Court: Now, as I understand it, your position is you
are not presenting her as an expert in the field of forensic
analysis; is that correct?
[The Commonwealth]: My original intent, yes, Your honor.
The Court: Then how is it that you intend to go from how
she went about conducting a test to providing the results?
16
We note the trial court opined that Ms. Szapanka’s “education and
experience provide the necessary qualifications to be tendered as an expert.
Permitting her to opine that the substance purchased was cocaine without
having her tendered as an expert witness is harmless error, if any.” Trial Ct.
Op. at 13. “We may affirm the trial court on any ground.” Commonwealth
v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003).
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[The Commonwealth]: Your Honor, this works the way it
would have if someone were to just plug numbers into a
calculator. She plugs the drugs into the machines, the
machines come[ ] out with a result. It’s not an opinion-
based thing. She doesn’t have to make guesses.
* * *
[Defense Counsel]: But, Your Honor, she’s giving an
opinion because she writes in the report that this was
cocaine and what the weight of it was, and that’s an
opinion. . . .
* * *
The Court: I will allow her to testify as to what the results
were that were provided by the equipment.
[Defense Counsel]: Your Honor, can I just have a
clarification? Does that mean she’s going to be able to
testify that the substances are, in fact, cocaine?
The Court: If the machine gives the results that that’s
what it is, yes.
N.T., 3/22/13, at 117, 118, 119.
Ms. Szpanka testified, inter alia, as follows, without objection from
defense counsel:
[The Commonwealth]: Did the analysis that you did . . .
result in an output of determining what the specimens’
chemical makeup was?
A: Yes.
Q: And on C-8,[17] what was the output chemical?
A: Cocaine Hydrochloride.
17
C-8 was described by the witness as a drug envelope containing three
clear Ziploc bags. N.T., 3/22/13, at 104, 112.
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Q: And did that also determine a measurement of weight?
A: It did.
Q: And what was the measured weight?
A: I believe it was 1.25 grams.
Q: And was there a similar output on C-7[18] that
determined what the chemical content of the specimen or
specimens were?
A: Yes.
Q: And what was that output?
A. Cocaine hydrochloride.
Q: And on that specimen, was there also a weight
measure?
A: Yes.
Q: What was it?
A: I believe it was 1.25 grams.
Id. at 120-21.
Appellant’s sole basis for his claim of trial court error in the admission
of Ms. Szpanka’s testimony is Rule 702. His reliance on Rule 702 is
unavailing. The rule provides:
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
18
C-7 was also a drug envelope containing little Ziploc bags that had a white
substance in them Id. at 104, 111.
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(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in
the relevant field.
Pa.R.Evid. 702 (emphasis added). Rule 702 is not applicable because Ms.
Szpanka did not render an opinion within the purview of the rule.
We discern no abuse of discretion by the trial court. See Antidormi,
84 A.3d at 749.
For all of the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2015
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Com. v. Harrell, B.
Combined Opinion