J-S07030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

RANDY LEE KEEFER,

                          Appellant                  No. 826 MDA 2014


       Appeal from the Judgment of Sentence of December 11, 2013
            In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0000757-2012

BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.:

MEMORANDUM BY OLSON, J.:                            FILED MARCH 26, 2015

      Appellant, Randy Lee Keefer, appeals from the judgment of sentence

entered on December 11, 2013, as made final by the denial of his post-

sentence motion on April 10, 2014. We affirm in part, vacate in part, and

remand.

      The factual background and relevant procedural history of this case is

as follows. On March 25, 2012, Appellant was pulled over for driving with a

suspended license.    When the trooper approached Appellant’s vehicle, he

recognized that Appellant was under the influence of alcohol. After Appellant

failed field sobriety tests, he was taken to a hospital where one vial of blood

was drawn.

      On June 1, 2012, Appellant was charged via criminal information with

driving under the influence (“DUI”) – high rate of alcohol (4th or subsequent
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offense),1 DUI - general impairment (4th or subsequent offense),2 DUI –

while license is suspended,3 and driving under suspension as a habitual

offender.4 On October 25, 2013, Appellant was found guilty of DUI – high

rate of alcohol (4th or subsequent offense), DUI – while license is suspended,

and driving under suspension as a habitual offender.

        On December 11, 2013, Appellant was sentenced to an aggregate

term of 23 to 87 months’ imprisonment.         Appellant filed a post-sentence

motion that same day. On April 10, 2014, the trial court denied Appellant’s

post-sentence motion. This timely appeal followed.5

        Appellant presents three issues for our review:

        1. [Did t]he trial court err[] when it permitted a lab technician—
        versed in Chambersburg Hospital protocols and procedures—to
        opine that a specific conversion factor is generally accepted in
        the scientific community absent any personal knowledge on the
        subject[?]

        2. [Was there insufficient evidence to prove that Appellant drove
        under the influence of alcohol?]



1
    75 Pa.C.S.A. § 3802(b).
2
    75 Pa.C.S.A. § 3802(a).
3
    75 Pa.C.S.A. § 1543(b)(1.1)(i).
4
    75 Pa.C.S.A. § 6503.1.
5
  On May 13, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 1, 2014, Appellant filed his concise statement.
On July 11, 2014, the trial court issued its Rule 1925(a) opinion. All issues
raised on appeal were included in Appellant’s concise statement.


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      3. [Did t]he trial court render[] an illegal sentence when it
      contravened [the] statute and sentenced [Appellant] without an
      alcohol and drug evaluation[?]

Appellant’s Brief at 19, 25, 32.

      In his first issue on appeal, Appellant argues that the trial court erred

by allowing a lab technician to testify that a certain conversion factor is

generally accepted by the scientific community.          Appellant’s argument

makes two separate challenges to the lab technician’s testimony. First, he

argues that the lab technician should not have been qualified as an expert

witness in this field.   Second, he argues that even if she were properly

qualified as an expert witness, her testimony was inadmissible.

      “[Q]ualification of a witness as an expert rests within the sound

discretion of the trial court, and the court’s determination in this regard will

not be disturbed absent an abuse of discretion.”          Commonwealth v.

Malseed, 847 A.2d 112, 114 (Pa. Super. 2004), appeal denied, 862 A.2d

1254 (Pa. 2004) (citation omitted). “The standard for qualifying an expert

witness is a liberal one: the witness need only have a reasonable pretension

to specialized knowledge on a subject for which expert testimony is

admissible.”   Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa. Super.

2014) (en banc) (citation omitted).

      The blood test used in this case was not a whole blood test, but rather

was a serum test.     “The general rule for alcohol-related DUI is that only

tests performed on whole blood will sustain a conviction under 75



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Pa.C.S.[A.] § 3802.          Thus, evidence of blood serum, plasma[,] or

supernatant testing, without conversion, will not suffice.” Commonwealth

v. Brugger, 88 A.3d 1026, 1028 (Pa. Super. 2014) (internal alteration and

citation omitted).     In this case, the lab technician testified as to what

conversion   factor    was   used   to   arrive    at   Appellant’s   blood    alcohol

concentration (“BAC”) and stated that the conversion factor that was used in

this case enjoyed general acceptance in the scientific community.

      We conclude that the trial court did not abuse its discretion in

admitting the lab technician as an expert witness.          The lab technician had

specialized knowledge in testing blood for alcohol content – the question

under investigation.    An expert witness may be qualified “by knowledge,

skill, experience, training or education.”        Commonwealth v. Pugh, 101

A.3d 820, 822 (Pa. Super. 2014) (en banc), quoting Pa.R.Evid. 702.

Although the lab technician was only required to have one of these traits in

order to be qualified as an expert witness, she possessed all of these traits.

The lab technician had knowledge regarding the policies and procedures

employed by Chambersburg Hospital in the testing of blood samples for their

alcohol content. N.T., 10/25/13, at 130. She was employed as a medical

technologist at Chambersburg Hospital for over nine years.            Id.     She had

performed at least 500 tests on blood specimens for alcohol content. Id. at

147-148. The lab technician received specialized training in the equipment

used to test blood for alcohol content. Id. at 135-136. Moreover, she had



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an associate’s degree in medical lab technology and a bachelor’s degree in

chemistry. Id. at 126. Therefore, the trial court did not abuse its discretion

by allowing the lab technician to testify as an expert witness.

      Second, Appellant contends that, even if the lab technician were

properly admitted as an expert witness, the trial court erred by permitting

her to testify that the conversion factor is general accepted in the scientific

community.     Appellant argues that the lab technician had no personal

knowledge regarding the conversion factor. “The admission of evidence is

committed to the sound discretion of the trial court and our review is for an

abuse of discretion.”   Commonwealth v. Parker, 104 A.3d 17, 21 (Pa.

Super. 2014) (internal quotation mark and citation omitted).

      Appellant’s   reliance   on   Pennsylvania   Rule   of   Evidence   602   is

misplaced. It ignores the plain language of Pennsylvania Rule of Evidence

703. Rule 703 provides that:

      An expert may base an opinion on facts or data in the case that
      the expert has been made aware of or personally observed. If
      experts in the particular field would reasonably rely on those
      kinds of facts or data in forming an opinion on the subject, they
      need not be admissible for the opinion to be admitted.

Pa.R.Evid. 703. Thus, the lab technician was permitted to base her expert

opinion upon facts or data that she became aware of through training,

experience, and/or education. She had been made aware of the appropriate

conversion factor to be used when converting a BAC for blood serum to a

BAC for whole blood.      The lab technician testified that she obtained the



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conversion factor from a scientific paper published by Dr. J.C. Garriott which

she offered as a basis for general acceptance in the scientific community.

Thus, her testimony was admissible under Rule 703.

      Appellant relies upon Commonwealth v. Karns, 50 A.3d 158 (Pa.

Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013), while attempting to

distinguish Commonwealth v. Newsome, 787 A.2d 1045 (Pa. Super.

2001). We conclude, however, that this case is more similar to Newsome

than it is to Karns. The lab technician testified that the conversion factor

was placed into the machine in order to covert the blood serum reading into

a whole blood reading. The lab technician also described the purpose of the

conversion factor, identified its source, identified the conversion factor used,

and gave the results.    These are all factors present in Newsome and not

present in Karns.

      Appellant does not argue that the conversion factor used in this case is

not generally accepted, that the wrong conversion factor was used, or that

another conversion factor was more appropriate.            Instead, Appellant’s

argument is that the lab technician was too low in the hierarchy of the lab to

testify as to the reliability of the conversion factor. This goes to the weight

of the lab technician’s testimony – not its admissibility. Accordingly, the trial

court did not abuse its discretion in admitting the lab technician’s testimony.

      In his second issue, Appellant contends that the evidence was

insufficient to find him guilty of DUI. “Whether sufficient evidence exists to



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support the verdict is a question of law; thus, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Patterson,

91 A.3d 55, 66 (Pa. 2014) (citation omitted). In reviewing a sufficiency of

the evidence claim, we must determine “whether viewing all the evidence

admitted at trial in the light most favorable to the [Commonwealth], there is

sufficient evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt.” Commonwealth v. Kearney, 92 A.3d

51, 64 (Pa. Super. 2014), appeal denied, 101 A.3d 102 (Pa. 2014) (citation

omitted).    “Additionally, the evidence at trial need not preclude every

possibility of innocence. . . . [T]he fact-finder is free to believe all, part[,] or

none of the evidence.” Commonwealth v. Trinidad, 96 A.3d 1031, 1038

(Pa. Super. 2014) (citation omitted).

      This argument, however, relies upon the assumption that the lab

technician’s testimony at trial regarding the conversion factor was improper.

As noted above, we have concluded that the lab technician’s testimony was

properly admitted.     Accordingly, there was sufficient evidence to convict

Appellant of DUI.

      In his final issue, Appellant argues that the failure of the trial court to

order a drug and alcohol assessment prior to sentencing renders his

sentence illegal.   The Commonwealth concedes that Appellant’s sentence

was illegal and that a remand for resentencing is necessary.            Whether a

sentence is illegal is a pure question of law; therefore, our standard of



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review is de novo and our scope of review is plenary. Commonwealth v.

Postie, 2015 WL 660148, *7 (Pa. Super. Feb. 17, 2015) (citation omitted).

     Our Supreme Court recently held that failure to conduct a drug and

alcohol assessment, when one is required by 75 Pa.C.S.A. § 3814, renders a

sentence illegal. Commonwealth v. Taylor, 104 A.3d 479, 490–493 (Pa.

2014).   In this case, Appellant was required to have a drug and alcohol

assessment pursuant to 75 Pa.C.S.A. § 3814(2)(i)(A) (requiring a drug and

alcohol assessment when the defendant has been convicted of DUI within

the past ten years).      The trial court failed to order a drug and alcohol

assessment prior to sentencing.        Accordingly, Appellant’s sentence was

illegal and we must vacate his sentence and remand for the sole purpose of

re-sentencing (after a drug and alcohol assessment is conducted).

     Judgment of sentence affirmed in part and vacated in part.        Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/26/2015




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