Com. v. Rizzo, D.

Opinion

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

v. :

:

DREW RIZZO, : No. 60 EDA 2013 :

Appellant :

Appeal from the Judgment of Sentence, July 24, 2012, in the Court of Common Pleas of Bucks County Criminal Division at No. CP-09-CR-0001450-2012

BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 17, 2014

Appellant appeals from the judgment

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under the influence (DUI - general impairment), driving under the influence

(DUI - high rate of alcohol), careless driving, stop signs and yield signs, and

turning movements and required signals.1 Finding no error on review, we

affirm.

The trial court accurately presented the factual background:

In the early morning hours of October 25, 2011, Officer Brad Smeltzer of the Morrisville Borough Police Department was patrolling the 400 block of South Pennsylvania Avenue in

* Retired Senior Judge assigned to the Superior Court. 1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3714(a), 3323(b), and 3334(a), respectively.

Morrisville Borough, Bucks County, Pennsylvania. N.T. 7/19/12, pp. 6-7. At approximately 12:33 AM, Officer Smeltzer observed a black sedan drive through a stop sign located on the southbound ramp of Route 1 and proceed south on Pennsylvania Avenue. N.T. 7/19/12, p. 7. The driver of the vehicle then made a left turn into a parking lot without using the turn signal. N.T. 7/19/12, pp. 7-8. The officer thereafter activated his overhead emergency lights and effectuated a traffic stop. N.T. 7/19/12, p. 8.

When Officer Smeltzer approached the car, he noticed that the driver of the vehicle, the Defendant, -

N.T. 7/19/12, p. 9. An odor of alcohol emanated Id. While conversing

with the officer, the Defendant admitted to drinking two beers that evening. N.T. 7/19/12, pp. 9-10. The Defendant responded slowly to the officer, but did not slur his words. N.T. 7/19/12, p. 21.

Officer Smeltzer directed the Defendant to step out of his vehicle and thereafter administered three

forward, six steps back and to count aloud as he did so. The Defendant took four steps, failed to count aloud and was unsteady on his feet. N.T. 7/19/12, p. 12. During the second test, the Defendant was instructed to tilt his head back, close his eyes, outstretch his arms and touch the tip of his nose with the tip of his finger. The Defendant touched the bridge of his nose with the middle of his finger. N.T. 7/19/12, p. 13. Finally, the Defendant was asked to -

directed to stand on one foot and lift the other foot approximately six inches from the ground and count to nine. The Defendant lifted his foot but had to touch his foot to the ground numerous times. N.T. 7/19/12, p. 14. At no point did the Defendant inform the officer that he suffered from any condition that would have prevented him from adequately completing the field sobriety tests. N.T. 7/19/12,

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p. 32. Based upon his observations and the

Officer Smeltzer formed the opinion that the Defendant was incapable of safely operating a motor vehicle. N.T. 7/19/12, p. 42.

Medical Center by Officer Justin Bickhardt of the Morrisville Police Department. N.T. 7/19/12, pp. 44- 46. After arriving at the hospital, the Defendant signed a consent form allowing the hospital staff to draw his blood. N.T. 7/19/12, p. 46. In Officer

N.T.

7/19/12, pp. 46, 48, 51. The drawn at 1:30 AM on October 25, 2011. N.T. 7/19/12, pp. 47, 51; Exhibit C-1. Thereafter, Mr. the vials of blood and put the vials into an evidence bag, after which point the evidence bag was sealed. N.T. 7/19/12, pp. 48, 52 samples were later submitted to the Bucks County Crime Laboratory for analysis. N.T. 7/19/12, pp. 56,

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determined to be .105%. No drugs were detected. N.T. 7/19/12, p. 67; Exhibit C-3.

Trial court opinion, 2/13/13 at 1-3 (footnote omitted).

Appellant raises the following issues on appeal:

I.

Driving Under the Influence, High Rate of Alcohol, was supported by sufficient evidence because the Analyst testified that the test on

the analyst testified that the written procedures require that the internal standard

control samples must be within twenty-five percent of the average internal standard peak

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samples fell outside of the twenty-five percent limit.

II.

Driving Under the Influence, High Rate of Alcohol, was supported by sufficient evidence

blood alcohol content may be as low as 0.077%[?]

III.

Driving Under the Influence, High Rate of Alcohol, was supported by sufficient evidence because the Commonwealth failed to develop a

blood sample[?] More specifically, contrary to the chain of custody documents stating that Officer Smeltzer placed the blood into evidence, Officer Smeltzer testified that he had no interaction or involvement with the blood after it was drawn from [appellant] at the hospital.

IV. Whether the Trial Court erred by allowing Joanne Szpanka to testify that Josh Folger,

V. Whether the Tria

Driving Under the Influence, High Rate of Alcohol, was against the weight of the evidence because the Analyst testified that the test on

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specifically, the analyst testified that the written procedures require that the internal

and quality control samples must be within twenty-five percent of the average internal standard peak areas of calibrators and that

twenty-five percent limit.

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VI.

Driving Under the Influence, High Rate of Alcohol, was against the weight of the evidence

blood alcohol content may be as low as 0.077%[?]

VII.

Driving Under the Influence, High Rate of Alcohol, was against the weight of evidence because the Commonwealth failed to develop a

blood sample[?] More specifically, contrary to the chain of custody documents stat[ing] that Officer Smeltzer placed the blood into evidence, Officer Smeltzer testified that he had no interaction or involvement with the blood after it was drawn from [appellant] at the hospital.

VIII.

Driving Under the Influence, General Impairment, was against the weight of evidence because the Trial Court as finder of fact improperly found a reliable blood alcohol content which could be consider[ed] in determining whether [appellant] was impaired and the remaining testimony and evidence provided was if insufficient weight to support a conviction[?]

-6 (footnotes and suggested answers omitted).

Preliminarily, we note a duplication of issues above. Appellant raises

the same core issue at Issues I and V, II and VI, and III and VII. The only

difference is that the former issue is cast as a sufficiency of the evidence

claim while the latter issue is cast as a weight of the evidence claim. We

determine that the core issues described at Issues I and V and Issues II and

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VI go to the sufficiency of the evidence; consequently, we will not review

Issues V and VI because the core issues do not implicate the weight of the

evidence. On the other hand, we find that the core issue described at Issues

III and VII goes to the weight of the evidence; consequently, we will not

review Issue III as sufficiency of the evidence is not implicated.

connected. Issue I challenges the sufficiency of the evidence:

A challenge to the sufficiency of the evidence is a question of law, subject to plenary review. When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the defe mathematical certainty. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Teems, 74 A.3d 142, 144-145 (Pa.Super. 2013)

(citations omitted), appeal denied, 79 A.3d 1098 (Pa. 2013), citing

Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010),

appeal denied, 29 A.3d 797 (Pa. 2011).

Issue IV questions the admission of alleged hearsay evidence. The

following principles guide our consideration of whether the trial court erred

in its conclusion.

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The admission of evidence is committed to the sound discretion of a trial court and will not be reversed absent an abuse of discretion. Discretion is abused where the law is not applied. Where improperly admitted evidence has been considered by the [factfinder ], its subsequent deletion does not justify a finding of insufficient evidence and the remedy in such a case is the grant of a new trial.

Commonwealth v. Chamberlain, 731 A.2d 593, 595 (Pa. 1999) (internal

quotations and citations omitted), cert. denied, Chamberlain v.

Pennsylvania, 132 S.Ct. 2377 (2012).

-ofcourt

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.

Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012) (internal citations

omitted), cert. denied, Busanet v. Pennsylvania, 134 S.Ct. 178 (2013).

In Issue I, appellant argues that the evidence was insufficient because

the BAC result testified to by analyst Joanne Szpanka was unreliable.

Specifically, appellant contends that Szpanka contradicted her testimony

when she first testified that the result had to conform to a certain threshold

20-24.) As a corollary to this issue, in Issue IV, appellant also argues that

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how she found -30.)

The SOP for the Bucks County Crime Laboratory provides standards for

samples and controls must be within 25 percent of the average internal

75-76.) Szpanka later testified that this 25 percent figure was a clerical

error, and the laboratory utilized a 50 percent figure. (Notes of testimony,

50 Id.

within 50 percent, but not within 25 percent. (Notes of testimony, 7/20/12

at 4.)

Szpanka testified about this clerical error as follows.

Q.

not to report that result. Correct?

A. Upon reviewing the SOP for the laboratory, it had come to my attention that there is a clerical error --

Counsel for Appellant: Objection.

A. -- in the SOP.

Overruled.

her attention from, Your Honor. Hearsay, Your

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A. You put the SOP in front of me. I read the SOP, turned the SOP to you and the ADA, and said the 25 percent comment was a typographical, clerical error. Last lab. The laboratory practice is within 50 percent, and it always has been.

Id. at 5.

Szpanka later testified, on re-direct examination, about how this

clerical error came about. She stated that Josh Folger, the person who

Id. at 13.) Counsel for appellant again objected to

hearsay. The trial court permitted Szpanka to testify because it was her

understanding of why she was following a different protocol. (Id.)

On appeal, appellant argues that the trial court erred in failing to

sustain these hearsay objections. The trial court concluded that the

evidence was not hearsay, and reasoned as follows.

There is no evidence on the record that the -ofcourt

statements of a third party. In any case, the explanation was not being offered for the truth of the matter asserted, i.e. that the error in fact occurred in that fashion. The import of the testimony was that the written procedural protocol relied upon by the defense contained incorrect information.

Trial court opinion, 2/13/13 at 7.

We agree. When Szpanka testified that it had come to her attention

that there was a clerical error in the SOP, that does not indicate that

someone told her about it. Appellant argues that her language to the effect,

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one had told her of the

suggests that Szpanka discovered the error herself. Had Szpanka testified,

indica

that Folger was using a prior method from another laboratory as a template

for his SOP, this is not an assertion that Folger told her this information.

Szpanka may have witnessed Folger preparing the SOP using the other

for the truth of the matter asserted since the origin of the error in the SOP

was of no moment. It was the existence of the 25 percent error itself that

was critical and Szpanka testified to this as if it were first-hand knowledge

testimony that she was relying on, or repeating, an out-of-court statement

by a third party. Issue IV is without merit.

re-direct, the Commonwealth adduced testimony from Szpanka that using

(Notes of testimony, 7/20/12 at 12-

evidence was insufficient using the incorrect 25% measure thus relies upon

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an improper predicate to reach a false conclusion. We remind appellant that

our standard of review requires us to view the evidence in the light most

favorable to the Commonwealth. The Commonwealth produced evidence

that the proper measure was 50% and that using that parameter,

Issue I is without merit.

In Issue II, appellant argues that the evidence was insufficient

be as low as .077%.

Here, appellant was convicted of DUI - high rate of alcohol, which

provides as follows.

(b) High rate of alcohol.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the

or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(b).

Appellant

24-27.) The trial court concluded that appellant

proper procedure for calculating blood alcohol content would not result in a

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inion, 2/13/13 at 7

(emphasis in original).) We agree.

On cross-examination, Szpanka testified as follows:

Q. And a calibration curve, basically, is an equation that allows you to extrapolate a blood/alcohol content?

A.

Q. Okay. So using the average area of 272,582, you came up -- plugging into the calibration curve, you came up with a result of .0777?

A. Correct.

Notes of testimony, 7/20/12 at 8.

On re-direct examination, Szpanka clarified this testimony. She

test

result was 193,393. It was not the average of the calibrators. It was

Id. at 15.) The

ed how counsel for appellant reached

the .077 number.

[ADA]: And what [counsel for appellant] was using was the average of the calibrators to get that .077 number. Correct?

A. Yes.

Id. at 15-16.

Based on a review of this testimony, we agree with the trial court that

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hypothetical situation

testified that in this case, because the actual internal standard recovery

the statutory range of .10% and .16%. Accordingly, Issue II is without

merit.

As previously noted, we will not be reviewing Issues III, V, and VI. In

Issue VII, appellant argues that his conviction for DUI High Rate of Alcohol

was against the weight of the evidence because the Commonwealth failed to

establish a sufficient chain of custody for his blood sample. We note our

standard of review:

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer, 560 Pa. at 319-20,

certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the Id. at 320, 744 A.2d at

752 (citation omitted). It has often been stated that

verdict is so contrary to the evidence as to shock ard of a new trial is

imperative so that right may be given another

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Brown, 538 Pa. at 435, 648 A.2d at 1189.

presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Brown, 648 A.2d at 1189. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial

against the weight of the evidence. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa.1976). One of the least assailable reasons for granting

conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).

In its opinion, the trial court identified the correct standard by which it

court later provided this analysis on chain of custody:

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To establish chain of custody, the Commonwealth need not produce every individual who came into contact with the evidence, nor need it eliminate all possibilities of tampering. Commonwealth v. Rick, 366 A.2d 302 (Pa.Super. 1976). Evidence may be admitted despite gaps in testimony regarding its custody. Commonwealth v. Bruner, 564 A.2d 1277, 1285 (Pa.Super. 1989) (citing Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980)). Gaps in the chain of custody go to the weight that is to be afforded evidence, not to its admissibility. Commonwealth v. Copenhefer, 553 Pa. 285, 312, 719 A.2d 242, 256 (1998).

The evidence admitted at trial in the instant case established that, after the initial car stop, the

Center by Officer Bickhardt. N.T. 7/19/12, pp. 44- 46. Thomas Mazzo, a registered nurse, drew the

Bickhardt. N.T. 7/19/12, pp. 46, 48, 51; Exhibit C-

the vials of blood, placed the vials into an evidence bag and sealed the bag. N.T. 7/19/12, pp. 48, 52. Officer Bickhardt then transported the evidence to the police station where it was secured in evidence. N.T. 7/19/12, p. 48. Lt. Thomas Herron subsequently transported the evidence to the Bucks County Crime Laboratory for purposes of analysis. N.T. 7/19/12, pp. 56, 65. This evidence is clearly sufficient to permit admission of the blood test

and weight of the evidence base[d] upon chain of custody is, therefore, without merit.

In challenging the chain of custody, the Defendant relies on Exhibit C-1, the blood alcohol evidence kit form and Exhibit C- submission form, which indicate that Officer Smeltzer placed the blood samples in evidence at the police station and not Officer testimony that he did not handle the evidence. N.T. 7/19/12 p. 43. This contradiction does not alter the

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conclusion that evidence of the blood test analysis was admissible. In Commonwealth v. Seibert, 799 A.2d 54, 61 (Pa.Super.2002), the court held that the fact that the Emergency Room technician did not

preclude admission of the blood test results. The court held that the previously completed, signed, and dated form explaining the performed procedures and corresponding results was sufficient to establish a chain of custody. Commonwealth v. Seibert, 799 A.2d 54, 61, (Pa.Super.2002). In the instant case, the Blood Alcohol Kit Evidence Report, Exhibit C-1, and the Bucks County Crime Laboratory Chain of Custody Report, Exhibit C-2, establish the blood was transferred from the registered nurse who drew the blood to Office[r] Bickhardt. Officer Bickhardt transferred custody of the evidence to Officer Smeltzer, who placed the item into evidence. Under the holding of Seibert, this evidence was sufficient to establish chain of custody. Moreover, even with this gap in the chain of custody, the evidence is still admissible. Commonwealth v. Bruner, supra. As stated above, gaps in the chain of custody go to the weight that is to be afforded evidence, not to its admissibility. Commonwealth v. Copenhefer, supra.

Id. at 8-9.

We find no abuse of discr

weight of the evidence pertaining to the chain of custody of the blood

specific complaint. There is no error.

Finally, in Issue VIII, appellant asserts that his conviction for DUI

General Impairment was against the weight of the evidence. The trial court

provided the following analysis:

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Finally, the Defendant avers that the conviction of Driving Under the Influence General Impairment was against the weight of the evidence because the

Defendant was impaired, and that the remaining testimony and evidence was of insufficient weight to support the verdict. As discussed above, the

content, considered in conjunction with evidence

observations of the De failure to properly perform field sobriety tests is more than sufficient to support the conclusion that the Defendant was incapable of safe driving. His conviction for violating section 3802(a)(1) of the Driving Under the Influence of Alcohol statute was, therefore, proper.

Id. at 9-10.

trial court catalogued the several factors leading to its verdict, particularly

was .105%. There is no error here

either.

Accordingly, having found no error in the issues raised on appeal, we

will affirm the judgment of sentence.

Judgment of sentence affirmed.

Ott, J. joins the Memorandum.

Strassburger, J. files a Concurring and Dissenting Memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/2014