J. A02034/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 : IN THE SUPERIOR COURT OF
                                              :        PENNSYLVANIA
                 Appellee                     :
                                              :
                                              :
                     v.                       :
                                              :
DREW RIZZO,                                   :
                                              :
                 Appellant                    :
                                              : No. 60 EDA 2013


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

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

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

FILED SEPTEMBER 17, 2014

      Because I conclude that the trial court erred by admitting hearsay

evidence with respect to how Szpanka found out about the error in the SOP

(Issue IV), I respectfully dissent.1

                                                              -of-court
      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.


1

conclude, infra, that Appellant is entitled to a new trial, I would not address
                                                        the relief I would grant
is the same.

* Retired Senior Judge assigned to the Superior Court.
J. A02034/14

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

omitted).

     The hearsay rule is grounded in the following principles.

           The hearsay rule provides that evidence of a declarant's
     out-of-court statements is generally inadmissible because such
     evidence lacks guarantees of trustworthiness fundamental to the
     Anglo-American system of jurisprudence. Hearsay evidence is
     presumed to be unreliable because the original declarant is not
     before the trier of fact and, therefore, cannot be challenged as to
     the accuracy of the information conveyed. Exceptions to the
     hearsay rule are premised on circumstances surrounding the
     utterance which enhance the reliability of the contents of the

     assurances of cross-examination and oath[.]

Commonwealth v. Chamberlain, 731 A.2d 593, 595 (internal citations

omitted).

     The standard operating procedure (SOP) for the Bucks County Crime

Laboratory provides the standards for testing blood alcohol content (BAC).

                                                            al standard peak

area for all samples and controls must be within 25 percent of the average

                                                                           -76.

However, analyst Joanna Szpanka (Szpanka) testified that the SOP

contained an error, and that the laboratory actually used 50 percent for the

average internal standard peak area of the calibrators.



that there was an error in the SOP, it had to accept that a mistake was

actually made. Szpanka testified that she did not make the mistake; rather,



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she testified that Josh Folger made the mistake. N.T., 7/20/2012, at 13



                                  should have had the opportunity to cross-

examine Mr. Folger with respect to his alleged mistake.          Accordingly, I



objection.

      I also consider whether the admission of this evidence was harmless




Commonwealth v. Hairston, 84 A.3d 657, 671-72 (Pa. 2014).

      This Court has described the proper analysis as follows:

             Harmless error exists if the record demonstrates
             either: (1) the error did not prejudice the defendant
             or the prejudice was de minimis; or (2) the
             erroneously    admitted     evidence    was    merely
             cumulative of other untainted evidence which was
             substantially similar to the erroneously admitted
             evidence; or (3) the properly admitted and
             uncontradicted     evidence    of   guilt   was    so
             overwhelming and the prejudicial effect of the error
             was so insignificant by comparison that the error
             could not have contributed to the verdict.

Id (quoting Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997)).

      In this case, Szpanka testified that the standard internal recovery fell

within the 50% standard, but not within the 25% standard.                 N.T.,

7/20/2012, at 4. Thus, the testimony with respect to which percentage was

proper - the one used by the laboratory in practice or the one stated in its



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own SOP - was critical in this case. Moreover, the BAC goes directly to the

heart of the DUI - high rate of alcohol charge, as the Commonwealth must




harmless. Accordingly, Appellant is entitled to a new trial on this charge.2

      Because Appellant is entitled to a new trial on the DUI - high rate of

alcohol conviction, I conclude that Appellant is also entitled to a new trial on

the general impairment conviction because the improper BAC testimony
                                                                          3
could have contributed to the trial




2
   Where improperly admitted evidence has been considered by the [fact-
finder], its subsequent deletion does not justify a finding of insufficient

Chamberlain
sufficiency of the evidence argument (Issue I) on this issue.
3

stop sign, and failing to use a turn signal are not affected by the hearsay
testimony, Appellant is not entitled to a new trial on those charges.


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