J-S18039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

JONATHAN BEDOYA

                                  Appellant           No. 2328 EDA 2016


             Appeal from the Judgment of Sentence March 18, 2016
     in the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0003025-2013

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 24, 2017

        Appellant, Jonathan Bedoya, appeals from his judgment of sentence

for driving under the influence of a controlled substance (“DUI”) 1 and

careless driving2 entered in the Northampton County Court of Common

Pleas. Appellant argues that the trial court violated his Confrontation Clause

rights by admitting expert testimony relating to the results of Appellant’s

blood tests and an unsigned toxicology report listing the results of

Appellant’s tests. Appellant also challenges the weight of the evidence. The

Commonwealth concedes that the admission of the unsigned report violated




*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(d)(2).
2
  75 Pa.C.S. § 3714.       Appellant does not challenge this conviction in the
present appeal.
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Appellant’s Confrontation Clause rights but asserts that this error was

harmless due to the overwhelming evidence of Appellant’s guilt. We affirm.

      The following evidence was adduced during trial. At 8:50 p.m. on June

23, 2013, Appellant was involved in a single-vehicle accident on Route 191

in Northampton County.      N.T., 12/1/15, at 25-26.        Appellant’s brother,

Anthony Bedoya, was a passenger in the vehicle at the time of the accident.

Id. at 73.

      Shortly before the accident, David Whitehouse, who was driving two

cars behind Appellant, observed Appellant veer over the double yellow line.

Id. at 26-27.   The car between Appellant and Whitehouse passed around

Appellant’s car on the right shoulder, leaving Whitehouse directly behind

Appellant. Id. Whitehouse saw Appellant veer again across the yellow line

and honked his horn to try to get Appellant’s attention. Id. at 27. Instead

of correcting his path, Appellant drove off the opposite side of the road, slid

down a seven-foot embankment, and struck a tree and a pole, smashing in

the rear driver side door and cracking several windows. Id. at 27, 28, 30,

33, 82, 103-04. Whitehouse exited his vehicle and approached Appellant’s

vehicle to see whether anyone was hurt.        Id. at 28.     Appellant did not

respond appropriately and was incoherent. Id. at 34.

      Bethlehem Township Officer William Stanton, the first police officer to

arrive at the accident scene, observed Appellant sitting in the driver’s seat

next to several empty packets of synthetic marijuana and hollowed out



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cigars. Id. at 83, 85-86. Appellant told the officer that he was not injured,

but he “appeared . . . to be intoxicated” and “his eyes were rolling around.”

Id. at 87. After exiting the vehicle, Appellant had trouble maintaining his

balance, slurred his speech and       needed assistance     walking up the

embankment. Id. at 84, 87. Appellant admitted to the officer that he had a

problem smoking synthetic marijuana. Id. at 100. Appellant’s brother told

the officer that he and Appellant had been smoking synthetic marijuana that

day and “routinely smoke that stuff.” Id. at 86.

      At 11:35 p.m., Trooper Steven Moyer, a drug recognition expert

employed by the Pennsylvania State Police, met with Appellant.           N.T.,

12/2/15, at 18.       Trooper Moyer testified that “[s]ynthetic marijuana

essentially has similar effects to regular marijuana.” Id. at 19; see also id.

at 48 (“very similar” effects).

      Trooper Moyer performed a twelve step test to determine whether

Appellant was impaired. Id. at 6-9. Appellant’s errors during the heel-to-

toe test, one-leg stand test, and finger-to-nose test indicated that he was

impaired, as did the manner in which Appellant’s eyes reacted to light

stimuli.   Id. at 29-30, 36, 38, 40, 74-75.    He exhibited numerous other

signs of impairment, such as poor coordination, bloodshot eyes, eyelid,

body, and leg tremors, slowed speech, and elevated blood pressure. Id. at

2, 24, 29, 34, 36-37, 38, 40, 41, 64, 79. His tongue was dark green, a sign

of recent marijuana usage. Id. at 43. In Trooper Moyer’s opinion, Appellant



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was under the influence of cannabinoids to such a degree that he was unable

to safely operate a motor vehicle.3 Id. at 42.

         Appellant’s blood sample was sent to NMS Laboratory for testing.

N.T., 12/1/15, at 41.     Dr. Wendy Adams, assistant laboratory director at

NMS and an expert in forensic toxicology, testified about the test results.

Id. at 41-72. She first described the chain of custody of blood samples and

NMS’ testing procedures and quality controls.        Id. at 42-49.     Several

employees work on each sample, including a prep analyst, a calculator, and

a second reviewer. Id. at 49. If the first test indicates the presence of a

controlled substance, there is a second confirmatory test. Id. at 51. When

testing is complete, a toxicology report is automatically generated listing the

test results. Id. at 52. There is no author or signature on the report. Id.

at 70.

         Dr. Adams described the result of the toxicology report but admitted

that she did not personally test Appellant’s blood, handle his sample or

prepare the toxicology report. Id. at 51-54. Prior to trial, she reviewed all

quality control checks and the raw data compiled from tests on Appellant’s

blood.      Id. at 47, 54, 69.     Based on this review, she reached the



3
   Although defense counsel suggested during Trooper Moyer’s cross-
examination that Appellant’s behavior was the result of a concussion, there
is no medical evidence in the record that supports this suggestion. As
discussed above, Appellant did not appear to be injured at the accident
scene.



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independent conclusion that Appellant’s blood contained XLR-11, a chemical

indicator of synthetic marijuana. Id. at 52, 54, 56, 69.

      Appellant moved to strike Dr. Adams’ testimony and the toxicology

report on the ground that the Confrontation Clause required the author of

the toxicology report to testify instead of Dr. Adams.       Id. at 60-64; N.T.,

12/2/15, at 100-01.     The trial court overruled the objection and admitted

the report “for the limited purpose of it being a factual basis for [Dr. Adams)

rendering her own independent opinion.”        N.T., 12/2/15, at 101-02.    The

purpose of this ruling was to exclude the toxicology report as substantive

evidence of Appellant’s guilt. Id. at 102, 108-10. In accordance with this

ruling, the trial court gave the following instruction to the jury:

         In giving you her opinion, Dr. Adams referred to certain
         facts   such  as    [the]   NMS     report    identified as
         Commonwealth Exhibit 1 that have not — that has not
         been presented from the witness stand except as Dr.
         Adams described it as part of the basis of her opinion.

         Because that fact has not been presented in evidence
         except through Dr. Adams’ testimony, you should consider
         the report only for the limited purpose of deciding whether
         or not to accept Dr. Adams’ opinion.

         You should not consider the report in any other way in
         your deliberations in this case because it has no bearing on
         the question of whether [Appellant] is guilty or not guilty
         except for the purpose I just described . . . to you. In
         other words, you’re looking at Dr. Adams’ opinion and not
         solely . . . the report. That’s just one of the bas[e]s of her
         opinion[. T]hat’s why I allowed the report into evidence.

Id. at 165-66.




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        The jury found Appellant guilty of DUI. On March 18, 2016, the court

sentenced Appellant to three to six months’ imprisonment followed by fifty-

four months’ probation.        Appellant filed timely post-sentence motions

challenging the weight of the evidence, which the court denied, and a timely

notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        Appellant raises two issues in this appeal:

           1. Confrontation Clause.            The Sixth Amendment
           guarantees criminal defendants the right to a fair trial—
           including the right to confront “witnesses” against them.
           Here, the government introduced a forensic toxicology
           report via a “witness” who neither performed, reviewed,
           authored the report, nor certified the results. Does a
           “witness” who neither performed, reviewed, authored the
           report, nor certified the results introduced at trial, violate
           the Confrontation Clause? In other words, is this the
           proper “witness” against [Appellant]?

           2. Weight of the Evidence. Whether the verdict was
           against the weight of the evidence when the
           Commonwealth presented evidence that could equate
           either with impairment or head trauma and the [drug
           recognition expert] who opined that the evidence equates
           to impairment could not provide any reference to the
           studies he relied upon?

Appellant’s Brief at 4.

        Appellant first argues that the admission of an unsigned laboratory

report listing his blood test results and Dr. Adams’ expert testimony relating

to these results violated Appellant’s rights under the Confrontation Clause of

the Sixth Amendment. Our standard of review of this question of law is de

novo, and our scope of review is plenary. Commonwealth v. Brown, 139


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A.3d 208, 211 (Pa. Super. 2016), appeal granted, __ A.3d __, 2016 WL

7235589 (Pa. Dec. 14, 2016) (citation omitted).

     The trial court reasoned that Dr. Adams’ testimony and the toxicology

report violated Appellant’s Confrontation Clause rights, but that this error

was harmless in light of the court’s limiting instruction to the jury and the

other evidence of Appellant’s guilt.    Trial Ct. Op., 9/13/16, at 14-15, 17.

Assuming without deciding that there was a Confrontation Clause violation,

we agree with the trial court that the error was harmless.

     The Sixth Amendment to the United States Constitution provides: “In

all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him[.]”      This protection applies to

state court prosecutions by virtue of the Due Process Clause of the

Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965). The

Confrontation Clause “applies to witnesses against the accused—in other

words, those who bear testimony. Testimony, in turn, is typically a solemn

declaration or affirmation made for the purpose of establishing or proving

some fact.” Crawford v. Washington, 541 U.S. 36, 51 (2004).

           In order to determine if a document or statement
        created out-of-court is testimonial in nature, our Supreme
        Court looks at the primary purpose of the document or
        statement. [Commonwealth v. Yohe, 79 A.3d 520, 531–
        32 (Pa. 2013)] (citations omitted). A document or
        statement is testimonial if its primary purpose is “to
        establish or prove past events potentially relevant to later
        criminal prosecution.” Id. at 531 (citation omitted). A
        document or statement has such a primary purpose if it is
        created or given “under circumstances which would lead an


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        objective witness reasonably to believe that the [document
        or] statement would be available for use at a later trial[.]”
        Id. (citation omitted). If a document or statement is
        testimonial, then the witness who prepared it must testify
        at trial, unless he or she is unavailable and the defendant
        had a prior opportunity for cross-examination. Michigan
        v. Bryant, 562 U.S. 344, 354 [] (2011) (“[F]or testimonial
        evidence to be admissible, the Sixth Amendment demands
        what the common law required: unavailability [of a
        witness] and a prior opportunity for cross-examination.”
        (internal quotation marks and citation omitted)).

Brown, 139 A.3d at 212.

     In a series of recent decisions, the United States Supreme Court has

addressed difficult questions concerning the legality of forensic tests or

expert testimony pertaining to forensic tests under the Confrontation Clause.

See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009)

(absent showing that forensic analysts who prepared report relating to

weight of cocaine seized from defendant were unavailable to testify at trial,

and that defendant had prior opportunity to cross-examine them, defendant

was entitled to be confronted with analysts at trial); Bullcoming v. New

Mexico, 564 U.S. 647, 664-68 (2011) (introduction of blood-alcohol analysis

report, wherein forensic analyst certified that defendant’s blood-alcohol

concentration was well above the threshold for aggravated driving while

intoxicated under New Mexico law, through the surrogate testimony of

second analyst, who had not certified the report or performed or observed

the testing, violated the Confrontation Clause); Williams v. Illinois, 567

U.S. 50 (2012) (plurality decision) (Confrontation Clause not violated when



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expert expresses independent conclusions based on review of inadmissible

evidence, although underlying inadmissible evidence does not become

admissible based on expert’s independent conclusions).            Courts in this

Commonwealth have also issued scholarly and exhaustively researched

opinions on this subject. See, e.g., Yohe, 79 A.3d at 530-42; Brown, 139

A.3d at 212-20.

     Here,    Appellant   raises   another   interesting   Confrontation   Clause

question by contrasting this case with Yohe.        In Yohe, a DUI case, our

Supreme Court held that the defendant’s Confrontation Clause rights were

not violated even though the Commonwealth’s expert forensic witness did

not perform the blood tests himself. Yohe, 79 A.3d at 543. The Court held

that the expert was a proper “analyst”, and therefore a proper witness, for

Confrontation Clause purposes, because he supervised the laboratory in

which the tests were performed, oversaw technicians who tested the

defendant’s blood samples, reviewed the test data, evaluated the results,

and wrote and signed the report assessing the test results. Id. at 540-41.

Appellant strenuously argues that crucial distinctions exist between the

present case and Yohe.     Appellant argues that in this case,

        Dr. Adams did not certify the results. She did not perform
        the underlying analysis. She did not sign or author the
        report. She was given the report to come to trial and
        testify to its results. [She] did not do the testing herself.
        She didn’t certify the results. She merely reviewed them
        when called for trial . . . .




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Appellant’s Brief at 18. Further, Appellant argues that while the analyst in

Yohe certified that laboratory technicians followed proper procedures,

         Dr. Adams did not witness the opening of the vial of blood,
         [she] did not check to make sure the sample was intact
         with no broken seal, she did not have direct access to
         check that the sample number and report number
         corresponded with one another, and she did not know that
         the sample was tested with the utmost care and diligence
         throughout the entire testing process. [Appellant] was not
         given the opportunity to confront the person who
         performed the test, reviewed it, and the person who
         certified its validity[;] therefore, he has not confronted the
         proper witness against him and he was deprived of his
         Sixth Amendment Confrontation Clause rights. [Appellant]
         deserves the opportunity to test the veracity of those who
         performed the tests and confirmed the results.

Id. at 20.

      Although this issue is intriguing, we need not examine it in depth.

Instead, assuming arguendo that Dr. Adams’ testimony violated Appellant’s

Confrontation Clause rights, the error is harmless because the remaining

evidence against him is overwhelming.

            The doctrine of harmless error is a technique of
         appellate review designed to advance judicial economy by
         obviating the necessity for a retrial where the appellate
         court is convinced that a trial error was harmless beyond a
         reasonable doubt. Its purpose is premised on the well-
         settled proposition that a defendant is entitled to a fair trial
         but not a perfect one.

Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quotation

and citations omitted).

            Harmless error exists where: (1) the error did not
         prejudice the defendant or the prejudice was de minimis;
         (2) the erroneously admitted evidence was merely


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        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.

Commonwealth v. Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (citations

omitted).

     Appellant was convicted of violating 75 Pa.C.S. § 3802(d)(2), which

provides:

        (d) Controlled substances.— An individual may not
        drive, operate or be in actual physical control of the
        movement of a vehicle under any of the following
        circumstances:

                                 *     *      *

            (2) The individual is under the influence of a drug or
            combination of drugs to a degree which impairs the
            individual’s ability to safely drive, operate or be in
            actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(d)(2). This provision does not require expert testimony.

See Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa. 2011) (section

3802(d)(2) “does not limit, constrain, or specify the type of evidence that

the Commonwealth can proffer to prove its case”).    Thus, under harmless

error standards, Appellant’s conviction under section 3802(d)(2) remains

intact if overwhelming evidence of guilt remains after exclusion of Dr.

Adams’ expert testimony and the prejudicial impact of her testimony is

insignificant by comparison.




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      The   remaining   evidence    satisfies   this   test.   An   eyewitness,

Whitehouse, observed Appellant driving his car             erratically and then

plummeting down an embankment off of the opposite side of the highway,

crashing into a tree and a pole.    The officer who arrived at the accident

scene observed Appellant sitting in the driver’s seat next to synthetic

marijuana packets and hollowed out cigars. Appellant displayed well-known

signs of intoxication: his eyes were rolling around, he slurred his speech, he

had trouble maintaining his balance upon exiting the vehicle and needed

assistance walking up the embankment. He also admitted to the officer that

he had a problem smoking synthetic marijuana. Appellant’s brother told the

officer that he and Appellant had been smoking synthetic marijuana that day

and “routinely smoke that stuff.”    Later that evening, Appellant exhibited

multiple signs of impairment during a meeting with a drug recognition

expert. His tongue was dark green, a sign of recent marijuana usage.        He

failed a heel-to-toe test, one-leg stand test and finger-to-nose test.     The

manner in which his eyes reacted to light stimuli demonstrated impairment,

as did his poor coordination, bloodshot eyes, eyelid, body, and leg tremors,

slowed speech and elevated blood pressure.             Cf. Commonwealth v.

Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (conviction for DUI affirmed

even though defendant refused to submit blood sample, where evidence of

intoxication included defendant’s failure to stop at stop sign despite police

officer’s cruiser being in full view, strong odor of alcohol emanating from



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vehicle, slurred speech, failure to perform four field sobriety tests and

inability to recite alphabet). Viewed collectively, these facts overwhelmingly

establish that Appellant drove his car while under the influence of a drug

that impaired his ability to safely drive the vehicle.

      In addition, the trial court minimized any possible Confrontation Clause

error by instructing the jury not to consider the toxicology report or Dr.

Adams’ testimony about the report as evidence of Appellant’s guilt. “A jury

is presumed to follow a trial court’s instructions.” Commonwealth v. Reid,

99 A.3d 470, 501 (Pa. 2014) (citation omitted).          We see nothing in the

record that rebuts this presumption. For these reasons, no relief is due on

Appellant’s first argument.

      In his second issue, Appellant challenges the weight of the evidence,

claiming that the evidence was equally consistent with head trauma as it

was with impairment through use of a controlled substance. We disagree.

      Our Supreme Court has held that

         [a] motion for a new trial alleging that the verdict was
         against the weight of the evidence is addressed to the
         discretion of the trial court. An appellate court, therefore,
         reviews the exercise of discretion, not the underlying
         question whether the verdict is against the weight of the
         evidence. The factfinder is free to believe all, part, or
         none of the evidence and to determine the credibility of
         the witnesses. The trial court will award a new trial only
         when the jury’s verdict is so contrary to the evidence as to
         shock one’s sense of justice. In determining whether this
         standard has been met, appellate review is limited to
         whether the trial judge’s discretion was properly exercised,
         and relief will only be granted where the facts and



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         inferences of record disclose a palpable abuse of
         discretion. Thus, the trial court’s denial of a motion for a
         new trial based on a weight of the evidence claim is the
         least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations

omitted).

      Based on the evidence summarized above, the trial court rejected

Appellant’s post-sentence motion challenging the weight of the evidence.

Even excluding Dr. Adams’ report, the court acted within its discretion by

concluding that this evidence was “not so contrary to the evidence as to

shock one’s sense of justice.” Id.

      In effect, Appellant asks this Court to re-weigh the evidence as

indicative of head trauma merely because defense counsel suggested that

Appellant might have suffered head trauma while cross-examining the

Commonwealth’s drug recognition expert.       This we cannot do.        See id.

(“Appellant’s argument is nothing more than a veiled attempt to have this

Court re-weigh the evidence and substitute our judgment for that of the

jury, which is wholly improper”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/24/2017


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