J-S18039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JONATHAN BEDOYA
Appellant No. 2328 EDA 2016
Appeal from the Judgment of Sentence March 18, 2016
in the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0003025-2013
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 24, 2017
Appellant, Jonathan Bedoya, appeals from his judgment of sentence
for driving under the influence of a controlled substance (“DUI”) 1 and
careless driving2 entered in the Northampton County Court of Common
Pleas. Appellant argues that the trial court violated his Confrontation Clause
rights by admitting expert testimony relating to the results of Appellant’s
blood tests and an unsigned toxicology report listing the results of
Appellant’s tests. Appellant also challenges the weight of the evidence. The
Commonwealth concedes that the admission of the unsigned report violated
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(d)(2).
2
75 Pa.C.S. § 3714. Appellant does not challenge this conviction in the
present appeal.
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Appellant’s Confrontation Clause rights but asserts that this error was
harmless due to the overwhelming evidence of Appellant’s guilt. We affirm.
The following evidence was adduced during trial. At 8:50 p.m. on June
23, 2013, Appellant was involved in a single-vehicle accident on Route 191
in Northampton County. N.T., 12/1/15, at 25-26. Appellant’s brother,
Anthony Bedoya, was a passenger in the vehicle at the time of the accident.
Id. at 73.
Shortly before the accident, David Whitehouse, who was driving two
cars behind Appellant, observed Appellant veer over the double yellow line.
Id. at 26-27. The car between Appellant and Whitehouse passed around
Appellant’s car on the right shoulder, leaving Whitehouse directly behind
Appellant. Id. Whitehouse saw Appellant veer again across the yellow line
and honked his horn to try to get Appellant’s attention. Id. at 27. Instead
of correcting his path, Appellant drove off the opposite side of the road, slid
down a seven-foot embankment, and struck a tree and a pole, smashing in
the rear driver side door and cracking several windows. Id. at 27, 28, 30,
33, 82, 103-04. Whitehouse exited his vehicle and approached Appellant’s
vehicle to see whether anyone was hurt. Id. at 28. Appellant did not
respond appropriately and was incoherent. Id. at 34.
Bethlehem Township Officer William Stanton, the first police officer to
arrive at the accident scene, observed Appellant sitting in the driver’s seat
next to several empty packets of synthetic marijuana and hollowed out
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cigars. Id. at 83, 85-86. Appellant told the officer that he was not injured,
but he “appeared . . . to be intoxicated” and “his eyes were rolling around.”
Id. at 87. After exiting the vehicle, Appellant had trouble maintaining his
balance, slurred his speech and needed assistance walking up the
embankment. Id. at 84, 87. Appellant admitted to the officer that he had a
problem smoking synthetic marijuana. Id. at 100. Appellant’s brother told
the officer that he and Appellant had been smoking synthetic marijuana that
day and “routinely smoke that stuff.” Id. at 86.
At 11:35 p.m., Trooper Steven Moyer, a drug recognition expert
employed by the Pennsylvania State Police, met with Appellant. N.T.,
12/2/15, at 18. Trooper Moyer testified that “[s]ynthetic marijuana
essentially has similar effects to regular marijuana.” Id. at 19; see also id.
at 48 (“very similar” effects).
Trooper Moyer performed a twelve step test to determine whether
Appellant was impaired. Id. at 6-9. Appellant’s errors during the heel-to-
toe test, one-leg stand test, and finger-to-nose test indicated that he was
impaired, as did the manner in which Appellant’s eyes reacted to light
stimuli. Id. at 29-30, 36, 38, 40, 74-75. He exhibited numerous other
signs of impairment, such as poor coordination, bloodshot eyes, eyelid,
body, and leg tremors, slowed speech, and elevated blood pressure. Id. at
2, 24, 29, 34, 36-37, 38, 40, 41, 64, 79. His tongue was dark green, a sign
of recent marijuana usage. Id. at 43. In Trooper Moyer’s opinion, Appellant
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was under the influence of cannabinoids to such a degree that he was unable
to safely operate a motor vehicle.3 Id. at 42.
Appellant’s blood sample was sent to NMS Laboratory for testing.
N.T., 12/1/15, at 41. Dr. Wendy Adams, assistant laboratory director at
NMS and an expert in forensic toxicology, testified about the test results.
Id. at 41-72. She first described the chain of custody of blood samples and
NMS’ testing procedures and quality controls. Id. at 42-49. Several
employees work on each sample, including a prep analyst, a calculator, and
a second reviewer. Id. at 49. If the first test indicates the presence of a
controlled substance, there is a second confirmatory test. Id. at 51. When
testing is complete, a toxicology report is automatically generated listing the
test results. Id. at 52. There is no author or signature on the report. Id.
at 70.
Dr. Adams described the result of the toxicology report but admitted
that she did not personally test Appellant’s blood, handle his sample or
prepare the toxicology report. Id. at 51-54. Prior to trial, she reviewed all
quality control checks and the raw data compiled from tests on Appellant’s
blood. Id. at 47, 54, 69. Based on this review, she reached the
3
Although defense counsel suggested during Trooper Moyer’s cross-
examination that Appellant’s behavior was the result of a concussion, there
is no medical evidence in the record that supports this suggestion. As
discussed above, Appellant did not appear to be injured at the accident
scene.
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independent conclusion that Appellant’s blood contained XLR-11, a chemical
indicator of synthetic marijuana. Id. at 52, 54, 56, 69.
Appellant moved to strike Dr. Adams’ testimony and the toxicology
report on the ground that the Confrontation Clause required the author of
the toxicology report to testify instead of Dr. Adams. Id. at 60-64; N.T.,
12/2/15, at 100-01. The trial court overruled the objection and admitted
the report “for the limited purpose of it being a factual basis for [Dr. Adams)
rendering her own independent opinion.” N.T., 12/2/15, at 101-02. The
purpose of this ruling was to exclude the toxicology report as substantive
evidence of Appellant’s guilt. Id. at 102, 108-10. In accordance with this
ruling, the trial court gave the following instruction to the jury:
In giving you her opinion, Dr. Adams referred to certain
facts such as [the] NMS report identified as
Commonwealth Exhibit 1 that have not — that has not
been presented from the witness stand except as Dr.
Adams described it as part of the basis of her opinion.
Because that fact has not been presented in evidence
except through Dr. Adams’ testimony, you should consider
the report only for the limited purpose of deciding whether
or not to accept Dr. Adams’ opinion.
You should not consider the report in any other way in
your deliberations in this case because it has no bearing on
the question of whether [Appellant] is guilty or not guilty
except for the purpose I just described . . . to you. In
other words, you’re looking at Dr. Adams’ opinion and not
solely . . . the report. That’s just one of the bas[e]s of her
opinion[. T]hat’s why I allowed the report into evidence.
Id. at 165-66.
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The jury found Appellant guilty of DUI. On March 18, 2016, the court
sentenced Appellant to three to six months’ imprisonment followed by fifty-
four months’ probation. Appellant filed timely post-sentence motions
challenging the weight of the evidence, which the court denied, and a timely
notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises two issues in this appeal:
1. Confrontation Clause. The Sixth Amendment
guarantees criminal defendants the right to a fair trial—
including the right to confront “witnesses” against them.
Here, the government introduced a forensic toxicology
report via a “witness” who neither performed, reviewed,
authored the report, nor certified the results. Does a
“witness” who neither performed, reviewed, authored the
report, nor certified the results introduced at trial, violate
the Confrontation Clause? In other words, is this the
proper “witness” against [Appellant]?
2. Weight of the Evidence. Whether the verdict was
against the weight of the evidence when the
Commonwealth presented evidence that could equate
either with impairment or head trauma and the [drug
recognition expert] who opined that the evidence equates
to impairment could not provide any reference to the
studies he relied upon?
Appellant’s Brief at 4.
Appellant first argues that the admission of an unsigned laboratory
report listing his blood test results and Dr. Adams’ expert testimony relating
to these results violated Appellant’s rights under the Confrontation Clause of
the Sixth Amendment. Our standard of review of this question of law is de
novo, and our scope of review is plenary. Commonwealth v. Brown, 139
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A.3d 208, 211 (Pa. Super. 2016), appeal granted, __ A.3d __, 2016 WL
7235589 (Pa. Dec. 14, 2016) (citation omitted).
The trial court reasoned that Dr. Adams’ testimony and the toxicology
report violated Appellant’s Confrontation Clause rights, but that this error
was harmless in light of the court’s limiting instruction to the jury and the
other evidence of Appellant’s guilt. Trial Ct. Op., 9/13/16, at 14-15, 17.
Assuming without deciding that there was a Confrontation Clause violation,
we agree with the trial court that the error was harmless.
The Sixth Amendment to the United States Constitution provides: “In
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” This protection applies to
state court prosecutions by virtue of the Due Process Clause of the
Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965). The
Confrontation Clause “applies to witnesses against the accused—in other
words, those who bear testimony. Testimony, in turn, is typically a solemn
declaration or affirmation made for the purpose of establishing or proving
some fact.” Crawford v. Washington, 541 U.S. 36, 51 (2004).
In order to determine if a document or statement
created out-of-court is testimonial in nature, our Supreme
Court looks at the primary purpose of the document or
statement. [Commonwealth v. Yohe, 79 A.3d 520, 531–
32 (Pa. 2013)] (citations omitted). A document or
statement is testimonial if its primary purpose is “to
establish or prove past events potentially relevant to later
criminal prosecution.” Id. at 531 (citation omitted). A
document or statement has such a primary purpose if it is
created or given “under circumstances which would lead an
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objective witness reasonably to believe that the [document
or] statement would be available for use at a later trial[.]”
Id. (citation omitted). If a document or statement is
testimonial, then the witness who prepared it must testify
at trial, unless he or she is unavailable and the defendant
had a prior opportunity for cross-examination. Michigan
v. Bryant, 562 U.S. 344, 354 [] (2011) (“[F]or testimonial
evidence to be admissible, the Sixth Amendment demands
what the common law required: unavailability [of a
witness] and a prior opportunity for cross-examination.”
(internal quotation marks and citation omitted)).
Brown, 139 A.3d at 212.
In a series of recent decisions, the United States Supreme Court has
addressed difficult questions concerning the legality of forensic tests or
expert testimony pertaining to forensic tests under the Confrontation Clause.
See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009)
(absent showing that forensic analysts who prepared report relating to
weight of cocaine seized from defendant were unavailable to testify at trial,
and that defendant had prior opportunity to cross-examine them, defendant
was entitled to be confronted with analysts at trial); Bullcoming v. New
Mexico, 564 U.S. 647, 664-68 (2011) (introduction of blood-alcohol analysis
report, wherein forensic analyst certified that defendant’s blood-alcohol
concentration was well above the threshold for aggravated driving while
intoxicated under New Mexico law, through the surrogate testimony of
second analyst, who had not certified the report or performed or observed
the testing, violated the Confrontation Clause); Williams v. Illinois, 567
U.S. 50 (2012) (plurality decision) (Confrontation Clause not violated when
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expert expresses independent conclusions based on review of inadmissible
evidence, although underlying inadmissible evidence does not become
admissible based on expert’s independent conclusions). Courts in this
Commonwealth have also issued scholarly and exhaustively researched
opinions on this subject. See, e.g., Yohe, 79 A.3d at 530-42; Brown, 139
A.3d at 212-20.
Here, Appellant raises another interesting Confrontation Clause
question by contrasting this case with Yohe. In Yohe, a DUI case, our
Supreme Court held that the defendant’s Confrontation Clause rights were
not violated even though the Commonwealth’s expert forensic witness did
not perform the blood tests himself. Yohe, 79 A.3d at 543. The Court held
that the expert was a proper “analyst”, and therefore a proper witness, for
Confrontation Clause purposes, because he supervised the laboratory in
which the tests were performed, oversaw technicians who tested the
defendant’s blood samples, reviewed the test data, evaluated the results,
and wrote and signed the report assessing the test results. Id. at 540-41.
Appellant strenuously argues that crucial distinctions exist between the
present case and Yohe. Appellant argues that in this case,
Dr. Adams did not certify the results. She did not perform
the underlying analysis. She did not sign or author the
report. She was given the report to come to trial and
testify to its results. [She] did not do the testing herself.
She didn’t certify the results. She merely reviewed them
when called for trial . . . .
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Appellant’s Brief at 18. Further, Appellant argues that while the analyst in
Yohe certified that laboratory technicians followed proper procedures,
Dr. Adams did not witness the opening of the vial of blood,
[she] did not check to make sure the sample was intact
with no broken seal, she did not have direct access to
check that the sample number and report number
corresponded with one another, and she did not know that
the sample was tested with the utmost care and diligence
throughout the entire testing process. [Appellant] was not
given the opportunity to confront the person who
performed the test, reviewed it, and the person who
certified its validity[;] therefore, he has not confronted the
proper witness against him and he was deprived of his
Sixth Amendment Confrontation Clause rights. [Appellant]
deserves the opportunity to test the veracity of those who
performed the tests and confirmed the results.
Id. at 20.
Although this issue is intriguing, we need not examine it in depth.
Instead, assuming arguendo that Dr. Adams’ testimony violated Appellant’s
Confrontation Clause rights, the error is harmless because the remaining
evidence against him is overwhelming.
The doctrine of harmless error is a technique of
appellate review designed to advance judicial economy by
obviating the necessity for a retrial where the appellate
court is convinced that a trial error was harmless beyond a
reasonable doubt. Its purpose is premised on the well-
settled proposition that a defendant is entitled to a fair trial
but not a perfect one.
Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quotation
and citations omitted).
Harmless error exists where: (1) the error did not
prejudice the defendant or the prejudice was de minimis;
(2) the erroneously admitted evidence was merely
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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.
Commonwealth v. Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (citations
omitted).
Appellant was convicted of violating 75 Pa.C.S. § 3802(d)(2), which
provides:
(d) Controlled substances.— An individual may not
drive, operate or be in actual physical control of the
movement of a vehicle under any of the following
circumstances:
* * *
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in
actual physical control of the movement of the vehicle.
75 Pa.C.S. § 3802(d)(2). This provision does not require expert testimony.
See Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa. 2011) (section
3802(d)(2) “does not limit, constrain, or specify the type of evidence that
the Commonwealth can proffer to prove its case”). Thus, under harmless
error standards, Appellant’s conviction under section 3802(d)(2) remains
intact if overwhelming evidence of guilt remains after exclusion of Dr.
Adams’ expert testimony and the prejudicial impact of her testimony is
insignificant by comparison.
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The remaining evidence satisfies this test. An eyewitness,
Whitehouse, observed Appellant driving his car erratically and then
plummeting down an embankment off of the opposite side of the highway,
crashing into a tree and a pole. The officer who arrived at the accident
scene observed Appellant sitting in the driver’s seat next to synthetic
marijuana packets and hollowed out cigars. Appellant displayed well-known
signs of intoxication: his eyes were rolling around, he slurred his speech, he
had trouble maintaining his balance upon exiting the vehicle and needed
assistance walking up the embankment. He also admitted to the officer that
he had a problem smoking synthetic marijuana. Appellant’s brother told the
officer that he and Appellant had been smoking synthetic marijuana that day
and “routinely smoke that stuff.” Later that evening, Appellant exhibited
multiple signs of impairment during a meeting with a drug recognition
expert. His tongue was dark green, a sign of recent marijuana usage. He
failed a heel-to-toe test, one-leg stand test and finger-to-nose test. The
manner in which his eyes reacted to light stimuli demonstrated impairment,
as did his poor coordination, bloodshot eyes, eyelid, body, and leg tremors,
slowed speech and elevated blood pressure. Cf. Commonwealth v.
Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (conviction for DUI affirmed
even though defendant refused to submit blood sample, where evidence of
intoxication included defendant’s failure to stop at stop sign despite police
officer’s cruiser being in full view, strong odor of alcohol emanating from
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vehicle, slurred speech, failure to perform four field sobriety tests and
inability to recite alphabet). Viewed collectively, these facts overwhelmingly
establish that Appellant drove his car while under the influence of a drug
that impaired his ability to safely drive the vehicle.
In addition, the trial court minimized any possible Confrontation Clause
error by instructing the jury not to consider the toxicology report or Dr.
Adams’ testimony about the report as evidence of Appellant’s guilt. “A jury
is presumed to follow a trial court’s instructions.” Commonwealth v. Reid,
99 A.3d 470, 501 (Pa. 2014) (citation omitted). We see nothing in the
record that rebuts this presumption. For these reasons, no relief is due on
Appellant’s first argument.
In his second issue, Appellant challenges the weight of the evidence,
claiming that the evidence was equally consistent with head trauma as it
was with impairment through use of a controlled substance. We disagree.
Our Supreme Court has held that
[a] motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the
discretion of the trial court. An appellate court, therefore,
reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the
evidence. The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of
the witnesses. The trial court will award a new trial only
when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and
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inferences of record disclose a palpable abuse of
discretion. Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the
least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations
omitted).
Based on the evidence summarized above, the trial court rejected
Appellant’s post-sentence motion challenging the weight of the evidence.
Even excluding Dr. Adams’ report, the court acted within its discretion by
concluding that this evidence was “not so contrary to the evidence as to
shock one’s sense of justice.” Id.
In effect, Appellant asks this Court to re-weigh the evidence as
indicative of head trauma merely because defense counsel suggested that
Appellant might have suffered head trauma while cross-examining the
Commonwealth’s drug recognition expert. This we cannot do. See id.
(“Appellant’s argument is nothing more than a veiled attempt to have this
Court re-weigh the evidence and substitute our judgment for that of the
jury, which is wholly improper”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
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