Commonwealth v. Haight

DISSENTING OPINION BY

BOWES, J.:

While the majority ably details the law and facts of this matter, I respectfully depart from its conclusion that Appellant’s own expert witness established a sufficient *145basis for the trial court to convert Appellant’s supernatant blood alcohol content of .174% to .158%. Accordingly, I offer this dissent.

The majority accurately states that conversion evidence must be provided when a person is charged with DUI and supernatant blood testing is conducted. Commonwealth v. Hutchins, 2012 PA Super 44, 42 A.3d 302; Commonwealth v. Kohlie, 811 A.2d 1010 (Pa.Super.2002); Commonwealth v. Renninger, 452 Pa.Super. 421, 682 A.2d 356 (1996). The Commonwealth below, however, as the trial court recognized, offered only an expert report that conversion evidence was unnecessary in this case. Hence, the majority correctly rejects the Commonwealth’s expert report as a primary basis for supporting Appellant’s conviction.

The Commonwealth, apparently recognizing its faulty premise at the trial level, now opines that its expert report did present a conversion method. The trial court, acting as the fact-finder, plainly rejected this assertion by utilizing a different conversion factor and stating in its verdict that the Commonwealth argued that it met “its burden of providing a conversion factor because [the Commonwealth] considered Doctor Kamerow’s report to be proof there is no need for conversion.” N.T., 7/13/11, at 180. While we may affirm on any basis supported in the record, we cannot sustain a conviction based on facts expressly rejected by the factfinder.5 Indeed, the majority properly disregards the Commonwealth’s argument in this respect and instead affirms based largely, as did the trial court, on the testimony of Appellant’s expert, Dr. Joseph Citron.

Preliminarily, I note that I am in agreement with the majority insofar as it states that the fact-finder could properly consider Dr. Citron’s testimony in determining Appellant’s guilt, although he was not a Commonwealth witness. A fact-finder is permitted to consider all evidence that is introduced in reaching its verdict, not merely testimony from Commonwealth witnesses. Plainly, cross-examination of a defense witness may be used in convicting a defendant. In this case, the trial court’s questioning, and not the Commonwealth’s, introduced much of the testimony that the majority relies on in reaching its decision. Nonetheless, I agree with Appellant to the extent that he contends inadequate testimony regarding a conversion factor was presented in this case.

I first highlight the trial court’s specific findings in reaching its verdict. The court stated,

Defendant introduced the testimony of Doctor Joseph Citron who, while generally disagreeing with Dr. Kamerow, did suggest at one point in his testimony that a conversion factor might exist with respect to the machine used by the hospital in testing. While Doctor Citron’s general testimony was that there is no conversion factor for supernatant, if we were to use the figures set forth on Defendant’s Exhibit 8 and apply those numbers to the .174 test result introduced as Commonwealth Exhibit 2, we would reach a conversion figure of .158.

N.T., 7/13/11, at 180. Having reviewed Exhibit 8 and the relevant testimony by Dr. Citron regarding that exhibit, I cannot agree that his testimony, even when viewed in a light most favorable to the Commonwealth, establishes a conversion factor applicable to Appellant’s BAC test.

*146A review of the relevant questions and testimony pertinent to the majority’s finding relative to Dr. Citron’s alleged presentation of a conversion factor is warranted. However, by way of background, I note that Exhibit 8 is merely a graphic chart drawn by defense counsel during his examination of Dr. Citron. The chart drawn by counsel was in reference to another defense exhibit, Exhibit 7. That exhibit pertains to an eighty-eight-person study apparently conducted by the makers of the Beckman Colter machine, which was the type of machine utilized herein, and compares gas chromatography whole blood testing to testing done with its machine. Exhibit 8 merely reiterates that the study showed a supernatant test on a Beckman Colter machine revealing an average BAC of .182% could be correlated with a gas chromatography whole blood test result of .166%.6 The study bears no relationship to Appellant’s testing aside from the fact that Appellant’s supernatant BAC test was conducted on a Beckman Colter machine.

The majority’s conclusion appears to be derived from the following testimony of Dr. Citron in regards to Exhibits 7 and 8:

the mean for the machine when they measured the blood alcohol concentration of these eighty-eight people came out to be .182 grams per deciliter. The gas chromatography with those same people was lower because the machine measures supernatant serum and plasma and the gas chromatography measures whole blood. So, with that, they established a conversion factor and they also say that within the graph or this group of eighty-eight people comparing that curve or bell-shaped curve or slope the correlation between those two is very high .997, almost one. So, they can take this data and say our machine is accurate, but it’s accurate in terms of what we measure. We measured serum, plasma, or a partial. We’re not measuring whole blood. When you do, we have a good correlation to the gold standard. That’s what’s [sic] their analysis did.
Defense Counsel: But does the correlation mean no conversion is necessary from supernatant to whole blood?
[Commonwealth objection overruled]
Dr. Citron: No. Just looking at this, you could do a calculation and come up with what their conversion factor is. There has to be a conversion factor because one machine got 182 and [the] other method got 166 with the same specimen from the same person. It’s a lower number. You have the enzyme method by the hospital lab 182 where you’re measuring smaller volume that you have taken the cellular material out of. Your conversion factor there is a little bit less than ten percent conversion factor.
Defense Counsel: But that’s just the mean?
Dr. Citron: Yes.

Id. at 133-134 (emphasis added). Later, counsel, while drawing Exhibit 8, asked and Dr. Citron answered,

Defense Counsel: This difference or the mean indicates there’s a need to convert supernatant to whole blood because in the supernatant sample you take out all the solids; in the gas chromatography samples, you don’t.
Dr. Citron: That’s correct.

Id. at 135.

The trial court subsequently questioned Dr. Citron with respect to Exhibit 8.

*147Court: On the chart that [counsel] put up, which is Defendant’s Exhibit No. 8, the numbers that he was looking at were kind of remarkably similar to the numbers that we have in this case here today, at least the one, and that was supernatant of .182 and I wasn’t sure exactly where the number came from but I thought you were suggesting that a conversion of the 182 supernatant result was 166 gas whole blood result; is that correct?
Dr. Citron: Yes, according to the— where it’s coming from was from the— Court: According to the information you have relied on in giving your testimony today, correct?
Dr. Citron: Only in terms of the relationship or the accuracy of the machine. What they did was they took serum and put ethanol in it or gave people ethanol. That’s why I’m saying these are — its states four to five of these are specimens that are known to contain ethanol whereas when you get a specimen in a laboratory, you don’t know that it’s a specific ethanol only and that’s where these numbers come from.
Court: If I were to accept the fact that there were supernatant results of 181 from the Lock Haven Hospital on this Defendant’s blood, the conversion of that number to a gas test on whole blood would be 166, correct?
Dr. Citron: With this study. There have been other studies that have shown different relationships.
Court: With this machine based on that study. Dr. Citron: Yes, sir.
Court: But you’re telling me that there are other studies, I believe that go from eight to forty-nine percent or something like that?
Dr. Citron: Yes, sir.
Court: Is forty-nine percent the highest?
Dr. Citron: That’s been reported in the medical literature, yes, sir.
Court: And that’s forty-nine percent of what; forty-nine percent difference.
Dr. Citron: Yes.
Court: So that no matter what if it were a supernatant of even 174, no matter how much of a conversion it would be, it still would be above a .10; is that right? Dr. Citron: On the premise that the 184 was only ethanol, yes.
Court: Let’s assume that it was 174, which is the lowest number we have here.
Dr. Citron: Again, what you don’t have is you don’t have any measurements by the hospital to include or discount the potential bias forming elements or contaminants. Had they done a lactic acid level at the same time that they did the ethanol, because lactic acid is the most common form of contaminants—
Court: But do you agree that the blood level under any testing would be .10 or above — at least .10 on this Defendant on this particular day in this particular case?
Dr. Citron: Not if the premise is that it’s .10 ethanol, no, I do not agree. There’s been nothing that’s been presented to me to rule out anything that could falsely elevate that number that’s not ethanol.

Id. at 165-167 (emphases added).

Contrary to the majority, I do not read this testimony as Dr. Citron opining, “that supernatant results of .181% from the Lock Haven Hospital could be converted to a gas test on whole blood of .166%.” Majority Opinion, at 11. Dr. Citron was not referring to the Lock Haven Hospital testing, but a study on a brand of machine used by the hospital. He specifically rejected the premise that the Lock Haven *148Hospital test results could be converted in the manner prescribed by the majority. This is precisely why he did not give a definitive percentage in discussing the trial court’s question of a conversion from .174%. See id. Pointedly, Dr. Citron stated, “you can’t transfer this study to that type of environment.” N.T., 7/13/11, at 168. He added that there was no scientifically-established conversion range for the method used by Lock Haven Hospital and that it would be speculative to determine a whole blood BAC in this case based on the test performed by the hospital. Id. at 169. Ultimately, he stated that no conversion was done in this case. Id. at 171.

Instantly, there was no evidence presented of a scientifically-accepted conversion factor used by Lock Haven Hospital, nor was evidence presented that Lock Haven Hospital follows a standard policy or procedure for converting supernatant blood test results to whole blood results. Compare Commonwealth v. Michuck, 454 Pa.Super. 594, 686 A.2d 403, 406-407 (1996). Accordingly, I am not persuaded by the majority’s expression of rationale and believe its reliance on Dr. Citron’s testimony as providing a basis for a conversion factor in this case is untenable. For these reasons, I respectfully dissent.

. The Commonwealth, in its brief, incorrectly refers to the verdict in this matter as a jury verdict.

. Here, the trial court took this study's conversion rate of .91 and concluded that this was an appropriate conversion factor in this matter and multiplied that by Appellant’s supernatant BAC test result of .174%.