Com. v. Gordon, S.

• Court: Superior Court of Pennsylvania
• Decided: December 8, 2021
• Docket: 660 MDA 2021
• Status: Unpublished

Opinion

J-S34013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAUDIA KYRON GORDON : : Appellant : No. 660 MDA 2021

Appeal from the Judgment of Sentence Entered May 14, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000039-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED: DECEMBER 8, 2021

Appellant, Saudia Kyron Gordon, appeals from the May 14, 2021

Judgment of Sentence entered in the Schuylkill County Court of Common Pleas

following her conviction after a bench trial of two counts of Driving Under the

Influence of a Controlled Substance.1 Appellant challenges the admission of

certain expert testimony. After careful review, we affirm.

The facts and procedural history are, briefly, as follows. On September

16, 2019, Trooper Nicholas Reese arrested Appellant for, inter alia, driving

under the influence of a controlled substance. Appellant consented to

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1 75 Pa.C.S. §§ 3802(d)(1)(i) and 3802(d)(2). The court also convicted Appellant of the summary offenses of one count each of Failure to Use Turning Signals, Driving an Unregistered Vehicle, Driving a Vehicle Without Certificate of Inspection, and Displaying a License Plate Registered to Another Vehicle. 75 Pa.C.S. §§ 3334(a), 1301(a), 4703(a), and 1372(3), respectively. J-S34013-21

providing the Commonwealth with a blood sample, and phlebotomist Betsy

MacBride drew the sample, which confirmed Appellant’s intoxication.

Appellant proceeded to a non-jury trial at which Trooper Reese, Ms.

MacBride, and Michael Lamb, a forensic toxicologist employed by NMS

Laboratory (the “Lab”),2 testified.

Relevant to the instant appeal, the Commonwealth offered, and the trial

court accepted, Mr. Lamb as an expert witness, without objection by

Appellant’s counsel. Mr. Lamb testified regarding the chain of custody of a

blood sample received at the Lab and the process by which a Lab employee

tests and analyzes the sample. N.T., 3/22/21, at 36-41. When Mr. Lamb

began to explain the results of the test of Appellant’s blood, Appellant’s

counsel objected because he was not “sure that a proper foundation has been

laid that this individual is the one who actually performed the test.” Id. at

41. The court overruled the objection and Mr. Lamb proceeded to testify, inter

alia, that the results of the blood test indicated that Appellant was intoxicated

at the time she was driving. Id. at 41-46.

On cross-examination, in response to Appellant’s counsel’s inquiry, Mr.

Lamb explained that, although he does have experience working as an analyst

in a laboratory, he did not perform the toxicology test of Appellant’s blood

because now, as a toxicologist, he is not involved in the physical testing

process. Id. at 49. He explained that his responsibility is more supervisory ____________________________________________

2 NMS Laboratory is the laboratory that performed the toxicology test of Appellant’s blood.

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and involves “review[ing] the entirety of the case from start to end and

com[ing] to my own independent conclusions regarding the accuracy of the

data and issue a report[.]” Id. Mr. Lamb confirmed that he “review[ed] all

of the quality controls associated with the analysis [of Appellant’s blood][]”

and “ensure[d] that all standard operating procedures [were] followed in order

to report the analytical findings that are in included on this report.” Id. at 50.

At the close of evidence, Appellant objected to the admission of the

Commonwealth’s “Exhibit-4”—the toxicology report authored by Mr. Lamb—

on hearsay grounds because “Mr. Lamb, who testified[,] is not the individual

who performed the tests that generated [the report’s] findings. . . . “[T]hat

person should be here to testify.” Id. at 51. The court overruled the objection

and admitted “Exhibit-4” as evidence.

The trial court then convicted Appellant of the above charges. On May

14, 2021, the trial court sentenced Appellant to a term of 72 hours’ to 6

months’ incarceration. Appellant did not file a post-sentence motion.

This appeal followed. Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Did the trial court commit reversible error by admitting the testimony of the Commonwealth’s expert witness which merely recited the test results generated by another technician over the hearsay objection of defense counsel?

Appellant’s Brief at 4.

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Appellant asserts that the trial court erred in overruling her hearsay

objection to Mr. Lamb’s expert testimony.3 Id. at 8.

Before we reach the merits of this claim, we must determine whether

Appellant has preserved it.

It is well settled in Pennsylvania that a party must make a timely and

specific objection at trial to preserve an issue for appellate review. Pa.R.A.P.

302(a); see also Commonwealth v. Montalvo, 641 A.2d 1176, 1185 (Pa.

Super. 1994) (“In order to preserve an issue for review, a party must make a

timely and specific objection at trial.”). Pursuant to Pa.R.A.P. 302, issues that

are not raised in the lower court are waived and cannot be raised for the first

time on appeal. Pa.R.A.P. 302(a). Likewise, we have long held that “[a] claim

which has not been raised before the trial court cannot be raised for the first

time on appeal.” Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa. Super.

2000).

Our review of the Notes of Testimony indicates that, although Appellant

objected to the admission of the Commonwealth’s “Exhibit-4” on hearsay

grounds, see N.T. at 51, she did not lodge an objection to Mr. Lamb’s ____________________________________________

3 Appellant further claims that the court erred in relying on Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013). In Yohe, the Supreme Court concluded that the trial court did not violate the Confrontation Clause by admitting the testimony of a forensic toxicologist who did not perform a blood test but only reviewed the analytical testing and wrote the report setting forth the results of the test. Appellant claims that holding in Yohe is inapplicable here because the Court did not consider there whether the witness’s testimony was hearsay, which is the issue here. Appellant’s Brief at 9-10. In light of our disposition, we need not consider this claim.

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testimony on the same basis. Rather, as described above, her objection to

Mr. Lamb’s testimony was based on her counsel’s belief that the

Commonwealth had not laid a proper foundation for it. N.T. at 41. Our

conclusion is further supported by Appellant’s own brief where, in support of

her assertion of trial court error in overruling her hearsay objection, she cites

the portion of the Notes of Testimony where her counsel objected to the

admission of “Exhibit-4” on hearsay grounds.4 Appellant’s Brief at 7-8 (citing

N.T. at 51). Accordingly, we conclude that Appellant’s failure to make a timely and

specific objection at trial to Mr. Lamb’s testimony has resulted in her failure

to preserve the issue for appellate review.

Judgment of Sentence affirmed.

Judge McLaughlin joins the memorandum.

Judge McCaffery concurs in results.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/08/2021

4Appellant has not challenged on appeal the trial court’s admission, over her objection, of “Exhibit-4.”

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