J   -S19013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     :    IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee
                 v.

    CHARLES ROBERT LEWIS

                            Appellant                          No. 1177 MDA 2016

               Appeal from the Judgment of Sentence June 16, 2016
                  In the Court of Common Pleas of Centre County
               Criminal Division at No(s): CP-14-CR-0001403-2015


BEFORE:        GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                                    FILED MARCH 20, 2017

        Appellant, Charles Robert Lewis, appeals from the judgment of

sentence entered in the Centre County Court of Common Pleas, following his

jury trial convictions of one count each of possession of                        a    controlled

substance with              the   intent   to   deliver   ("PWID"),   criminal       conspiracy,

possession of         a   controlled substance by an inmate, knowing or intentional

possession of     a       controlled substance, and possession of drug paraphernalia.'

We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant, an inmate at the Benner Township State Correctional Institution,

received   a   visit from his sister and co-defendant, Michilean Lewis on August


' 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903, 5123(a.2); 35 P.S. §§
780-113(a)16, (a)(32), respectively.



*Former Justice specially assigned to the Superior Court.
J   -S19013-17


16, 2015.         Ms.    Lewis smuggled 33 balloons containing marijuana and 3

balloons containing Suboxone strips inside the prison.                     Matthew Kissel,   a


prison corrections officer, observed Appellant's and Ms. Lewis' interaction

through video surveillance.              Mr. Kissel watched Ms. Lewis hand an object to

Appellant and then saw several clear balloons inside Appellant's bag of

Dorito's.    Mr.        Kissel searched Appellant and recovered the contraband.

Nicole Blascovich,        a   forensic scientist, analyzed the contraband and prepared

a   lab report based on her findings.

        The Commonwealth charged Appellant with various related offenses on

August 27, 2015.              On February 29, 2016, the Commonwealth filed and

served Appellant with             a    "Notice of Intent to Admit Laboratory Report

Pursuant     to     Pennsylvania          Rule   of     Criminal    Procedure   574.2   The

Commonwealth gave the correct lab report to Appellant through discovery

on February 5, 2016, but it inadvertently attached an incorrect, unrelated

lab report to its Notice of           Intent on February 29, 2016. Appellant did not file

a   written demand for         Ms. Blascovich's       testimony pursuant to Rule 574(C)(1).

        On March 22, 2016, before Appellant's                      jury trial commenced, the
Commonwealth presented the correct lab report to the court.                        Appellant



2 Rule 574 of the rules of criminal procedure refers to a procedure where the
Commonwealth introduces a forensic lab report into evidence in place of live
testimony by the expert who performed the analysis or examination,
provided the defendant does not make a written demand for the expert's live
testimony.


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J   -S19013-17


objected to the report on the basis that it was not the same report as the

one attached to the Notice of Intent.         Appellant conceded he had received

the correct lab report during discovery and the Notice of Intent referenced

the correct report, which prompted               the court to overrule Appellant's

objection.

        A   jury convicted Appellant of all charges     on March 22, 2016.    On June

16, 2016, the court sentenced Appellant to an aggregate term of three (3) to

six (6) years' imprisonment, followed by          a   consecutive term of twelve (12)

months' probation.        The court imposed the sentence consecutive to an

unrelated sentence Appellant was already serving.               Appellant timely filed

post -sentence motions on June 22, 2016.              On July 7, 2016, the court held

argument on Appellant's post -sentence motions, and denied the motions on

July 13, 2016.      Appellant timely filed   a   notice of appeal on July 18, 2016.

On July 19, 2016, the court ordered Appellant to file a Rule                  1925(b)

statement, which Appellant timely filed on August 8, 2016.

        Appellant raises one issue for our review:

            [WHETHER]   THE...COURT VIOLATED    [APPELLANT'S]
            CONSTITUTIONAL RIGHT UNDER THE SIXTH AMENDMENT
            TO CONFRONT WITNESSES AGAINST HIM BY PERMITTING
            THE LAB REPORT TO BE ENTERED INTO EVIDENCE
            WITHOUT THE AUTHOR BEING CALLED TO TESTIFY[?]

(Appellant's Brief at 9).      The Commonwealth claims Appellant waived his

issue on appeal due to vagueness in his statement of questions presented

section of his brief. What Appellant    is   challenging on appeal is evident so we


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J   -S19013-17


decline to deem his issue waived.

        After   a   thorough review of the record, the briefs of the parties, the

applicable law, and the well -reasoned opinion of the Honorable Jonathan D.

Grine, we conclude Appellant's issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed July 13, 2016, at 2-4) (finding: Appellant

premised alleged violation of his Sixth Amendment right to confront witness

on fact   that Commonwealth attached incorrect lab report to its Notice of

Intent; Appellant insinuated he would have filed written demand for                     Ms.

Blascovich's testimony at trial if Commonwealth had attached correct lab

report    to    Notice    of   Intent, and    he   was        not   obligated   to   correct

Commonwealth's mistake; Appellant's position             is   tenuous because Appellant

knew he had correct lab report even before Commonwealth filed and served

him with its Notice of Intent, which properly referenced correct lab report;

Appellant knew Ms. Blascovich performed lab study, and Appellant failed to

make written demand for Ms. Blascovich's testimony at trial; per totality of

circumstances Appellant possessed relevant materials to make informed

decision regarding demand for Ms. Blascovich's live testimony, but Appellant

chose not to make that request). Accordingly, we affirm on the basis of the

trial court's opinion.

        Judgment of sentence affirmed.




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Judgment Entered.




J seph D. Seletyn,   Es   .


Prothonotary


Date: 3/20/2017




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                                                                                                                                       OOOOTKF'(           CCGPRO 201803




               IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                                  CRIMINAL ACTION - LAW


                   COMMONWEALTH OF PENNSYLVANIA                            )
                                                                           )
                           v.                                              )   CP-14-CR-1403-2015
                                                                           )
                   CHARLES ROBERT LEWIS,                                   )
                             Defendant.                                    )

                   Attorney for Commonwealth:                          Jessica H Lathrop, Esquire
                   Attorney for Defendant:                             Richard G Settgast, Esquire


                                              OPINION AND ORDER

                   Presently before the Court is a Post-Sentence Motion filed by Charles Robert Lewis

           ("Defendant"), on June 22, 2016. For the following reasons, Defendant's Post-Sentence Motion
                                                                                          C)
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           is DENIED.                                                                    :-JOC~:
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                                                  BACKGROUND                             ··3~ ~i
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                  On September 4, 2015, Defendant was charged with Manufacture, Del~§~i%gr ~                                                       "' .:
                                                                                    .... ·<I                                                       c·.
           Possession with Intent to Manufacture or Deliver, 35.  p, .5.
                                                                       780-l 13(a)(J0); Contra~d,                                                  ::.:

           18 Pa.C.S.A. § 5123(a.2); Conspiracy (Contraband); Intention to Possess Controlled Substance

           by Person no Registered under The Drug, Device, and Cosmetic Act, 35      f. 5,                               § 780-
                                                                    B-3,                                          ·
           113(a)(l6); and Use/Possession of Drug Paraphernalia, 3~§ 780-113(a)(32). A jury trial on the

           charges was held on March 22, 2016 and Defendant was found guilty on all charges. On June 16,

           2016, Defendant was sentenced to an aggregate sentence of thirty-six (36) to seventy-two (72)

           months incarceration, with a consecutive probation sentence of one (1) year. Defendant filed a

           Post-Sentence Motion on June 22, 2016. Argument on said motions was heard on July 7, 2016.

                  After reviewing the record and hearing argument, the Court is now ready to render a

           decision in this matter.


                                                           1
           [E]O   ORD OS
                                             DISCUSSION

        Pennsylvania Rule of Criminal Procedure 574 provides that, in any trial, the

Commonwealth may seek to offer into evidence a forensic laboratory report supported by a

certification, as provided in the rule, in lieu of testimony by the person who performed the

analysis or examination that is the subject of the report. Pa.R.Crim.P. 574(A). Rule 574 requires

the Commonwealth to file and serve upon the defendant a written notice "at the time of the

disclosure of the report but no later than 20 days prior to the start of trial." Pa.R.Crim.P.

574(B)(l). If the defendant wishes to have the person who prepared the report testify at trial, the

defendant must file a written demand for said testimony at trial within ten (10) days of service of

the Commonwealth's written notice. Pa.R.Crim.P. 574(C)(l). The comment to Rule 574 states,

"[ nJo thing in this rule is intended to change the requirement for the provision of discovery under

Rule 573." Pursuant to Rule 573, the Commonwealth is bound to make a mandatory disclosure

of "any results or reports of scientific tests ... within the possession or control of the attorney for

the Commonwealth." Pa.R.Crim.P. 573(B)(l)(e). Additionally, the comment to Rule 574 states,

"one of the goals of this rule is to permit the defendant to make an informed decision regarding

whether to demand the live testimony of the analyst."

       In the case at bar, Defendant contends a violation of his      6th   Amendment right to confront

his accuser occurred when the Court permitted the introduction of the laboratory report regarding

Defendant's case without the appearance and testimony of the person who prepared said report.

Specifically, Defendant premises this contention on the fact that the Commonwealth attached the

incorrect laboratory report to the Commonwealth's Notice of Intent to Admit Laboratory Report

Pursuant to Pennsylvania Rule of Criminal Procedure 574 ("Notice"), filed on February 29,

2016. The Court finds no violation of Defendant's      6th   Amendment right to confrontation

occurred because Defendant was in receipt of the correct laboratory report at the time the

                                                   2
C&lO ORD OS
Commonwealth's timely written notice was filed and served.

       Pursuant to the Commonwealth's mandatory disclosure obligations under Rule 573, the

Commonwealth disclosed the correct laboratory report to Defendant during discovery. The

subsequent Notice the Commonwealth filed and served was consistent with the requirements of

Rule 574, with the exception of the incorrect laboratory report being attached thereto. The Court

finds the comment to Rule 574 to be instructive in resolving this matter. The comment is clear in

its direction that discovery requirements pursuant to Rule 573 shall not be altered by the contents

of Rule 574. The Commonwealth's filing error in this case has forced this comment to the fore.

If Rule 574 were permitted to usurp Rule 573, then the Commonwealth would be forced to either

file their Rule 574 written notice when they receive the laboratory report, or waive their ability to

file said notice. This would effectively hinder the Commonwealth's ability to make a litigation

decision because of their continuing duty to disclose mandatory discovery. Rule 574's comment

clearly addresses and shutters this incongruous result.

       The issue of what effect the Commonwealth's filing error had on Defendant's

confrontation rights requires the Court to consider if Defendant was effectively on notice to file a

written demand, pursuant Rule 574(C)(l). The correct lab report and incorrect lab report were

both performed by Nicole Blascovich of the Harrisburg Regional Laboratory. Defendant

insinuates that if the correct lab report, which Defendant was already in possession of, had been

attached to the Commonwealth's Notice, Defendant would have filed a written demand for the

testimony of Ms. Blascovich. Defendant's counsel argues that trial counsel "was under no

obligation to correct the District Attorney's mistakes to the detriment of her client." The Court

finds this position to be tenuous, due to Defendant's counsel's knowledge of the correct lab

report, knowledge of Ms. Blascovich's performance of both lab reports, and failure to demand

testimony where an incorrect lab report could conceivably be admitted into evidence against

                                                  3
000 ORD OS
Defendant by operation of Rule 574(C)(3). The totality of the circumstances in this case

establishes that Defendant was in possession of the relevant materials to permit him to make an

informed decision regarding whether to demand the live testimony of Ms. Blascovich, and

Defendant chose not to make said demand.

       Therefore, Defendant's Post-Sentence Motion is DENIED.

       Accordingly, the Court enters the following Order:




                                            ORDER

       AND NOW, this lih day of July, 2016, the Court hereby ORDERS that Defendant's

Post-Sentence Motion is DENIED.




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IIDO ORD OS
