J-S81044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    KRISTINA S. MANZI,

                             Appellee                 No. 465 MDA 2017


               Appeal from the Order Entered February 23, 2017
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0005560-2016


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 27, 2018

        The Commonwealth of Pennsylvania appeals from the February 23,

2017 order dismissing the intermediate punishment violation of Appellee,

Kristina S. Manzi. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record, and the trial court’s May 18, 2017 opinion. On

October 12, 2016, Appellee pleaded guilty to driving under the influence

(DUI).    The trial court sentenced her to serve six months of intermediate

punishment1 supervision, with sixty days of supervision on a Secure
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*   Retired Senior Judge assigned to the Superior Court.

1We note that portions of the record appear to refer inaccurately to Appellee’s
“probation revocation.”    While “[i]ntermediate punishment is similar to
probation in some respects[,] . . . [and there is] a substantial overlap in the
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Continuous Remote Alcohol Monitoring (SCRAM) ankle monitor.               “The

company which provides the monitor . . . and which reviews and analyzes the

reports created by [it] is known as Vigilnet. Vigilnet does not manufacture

the monitors, those are manufactured by the SCRAM company.” (Trial Court

Opinion, 5/18/17, at 2).

       On December 8, 2016, the York County probation department filed a

petition for violation, alleging that a “confirmed tamper report was received

from SCRAM for 11/13/2016 and 11/14/2016. Alcohol was detected during

this time period.” (Petition for Administrative Violation, 12/08/16, at 2). The

petition noted that Appellee “was on an approved travel pass to Wisconsin

during this time period. [Appellee] denies the alcohol use or tampering with

the bracelet.” (Id.). On January 17, 2017, Appellee filed a motion to dismiss

the petition for violation.

       On February 1, 2017, the trial court continued the intermediate

punishment violation hearing “so that the Commonwealth could provide expert

testimony with regard to reports generated by the [SCRAM] monitor which

indicated tampering.” (Trial Ct. Op., at 1-2). Specifically the court ordered

that “everybody involved in [the SCRAM] report is going to show . . . . We’re




____________________________________________


range of options available under either program,” intermediate punishment is
not the equivalent of probation. Commonwealth v. Wegley, 829 A.2d 1148,
1152–53 (Pa. 2003); see also Commonwealth v. Serrano, 727 A.2d 1168,
1169 n.4 (Pa. Super. 1999) (emphasizing differences between probation and
intermediate punishment).

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going to have a full evidentiary hearing. We won’t have any hearsay. We’ll

have first person testimony . . . .” (N.T. Hearing, 2/01/17, at 10-11).

      On February 23, 2017, the trial court conducted the intermediate

punishment violation hearing.

      . . . The Commonwealth provided expert testimony from James
      Kelly, a Vigilnet employee of approximately five and a half years,
      who testified with regard to how reports or data generated by the
      monitors are interpreted to determine alcohol use and tampering.
      (See N.T. Hearing, 2/23/17, at 10-13).

              Mr. Kelly was not admitted as an expert to testify with
      regard to the technology or underlying science involved with the
      SCRAM monitor. (See id. at 16). Mr. Kelly stated that the
      monitors are calibrated by the manufacturer before being placed
      into service by Vigilnet, and that they are recalled and sent back
      to the manufacturer if they require recalibration. (See id. at 20).
      Once attached, the monitor establishes baseline readouts for each
      individual. There is a baseline number established trans-dermally
      for alcohol using a pump in the bracelet, as well as a voltage
      number based on infrared sensors which determine the normal
      distance between the bracelet and [Appellee’s] leg. Once the
      initial baseline is established, the monitor provides readings every
      thirty minutes to determine if there is alcohol use and/or
      tampering. (See id. at 22).

            If the monitor indicates potential tampering, such as placing
      a sock or other object between the leg and the monitor, the
      information is flagged and sent to the manufacturer via a server
      for review. If an individual at the manufacturer determines that
      the data indicating tampering is confirmable, it is then forwarded
      to a committee of three to five people for further review. If the
      data is reconfirmed by the committee, it is sent back to Vigilnet
      via server stating that there was or was not a confirmable event.
      (See id. at 24-26). The [p]robation [o]ffice is then informed of
      the violation. Mr. Kelly described the criteria used to determine if
      data should be flagged for further review for possible tampering.
      He stated that a voltage deviation over or under the baseline
      number over an eight hour time period, without an indication of
      alcohol use, would be cause for a flag and further review. The
      same voltage deviation along with an indication of alcohol use over

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     a three hour time period would also be cause for flagging and
     review. (See id. at 26-27). Mr. Kelly confirmed that [Appellee]
     was informed of how the SCRAM monitor works, how violations
     are determined, and the penalties for violation, and that
     [Appellee] signed an acknowledgement that she received that
     information before beginning to use the monitor. (See id. at 28-
     31). Mr. Kelly also confirmed that he compiled documentation
     indicating the two alleged tampering incidents at issue in this
     matter, and that the [p]robation [o]ffice was informed of the
     incidents. (See id. at 34).

                                 *    *    *

            Under cross-examination, Mr. Kelly stated that he did not
     test or calibrate the bracelet monitors before placing them into
     service.    The testing and calibration is performed by the
     manufacturer. (See id. at 52-53). Mr. Kelly further stated that
     the data he receives regarding a tampering event first goes
     through a server, then to an individual at a testing company
     known as “AMS”, then to a review committee, then to Mr. Kelly or
     another employee of Vigilnet confirming that a tampering event
     occurred. He could not say who received the data at AMS or who
     was on the review committee. (See id. at 56-57). He also could
     not confirm if this review procedure occurred at all with regard to
     [Appellee’s] monitor.      (See id. at 58).      Mr. Kelly’s only
     involvement with the review process is to receive the data
     indicating a confirmed tampering event. (See id. at 59). He
     stated that an alcohol reading could be caused by spilling a
     product with alcohol on the leg with the monitor, and that voltage
     deviations could be caused by a sock or other item of clothing
     moving between the leg and the monitor. (See id. at 61-63). In
     this case, there was no determination of [Appellee’s] employment
     or work schedule which might make an alcohol reading more
     likely, such as employment as a bartender. (See id. at 74-75).
     The report of the alleged tampering events was sent directly from
     AMS to [p]robation, not through Mr. Kelly. Mr. Kelly did not review
     the report sent from AMS or speak with anyone at AMS about the
     report, although he stated that the report would contain the same
     data that he received. (See id. at 75-76).

            [Appellee’s] probation officer, Jackie Farmer, also testified
     briefly. She stated that she received the report of the alleged
     violation from November 2016, but that [Appellee] denied
     consuming alcohol. [Appellee] was travelling during that time
     period and told Officer Farmer that the tampering report could

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        have been caused by airport security. Officer Farmer did not have
        sufficient experience with the monitoring bracelets to state
        whether something such as airport security could cause a
        tampering report. (See id. at 92-95).

(Trial Ct. Op., at 2-5) (record citation formatting provided).

        At the conclusion of testimony, Appellee moved to dismiss. The court

concluded that the Commonwealth had failed to meet its burden of proving

the alleged violation by a preponderance of the evidence, and granted

Appellee’s motion. Specifically, it explained that, “[i]t’s the fact that there is

just not enough here, because I don’t have testimony on the science, and the

science underpins it all.       If you had brought somebody in here from the

manufacturer, we might well have a whole different outcome.” (N.T. Hearing,

2/23/17, at 96). The court reasoned that that its “decision may not be based

upon conjecture, speculation, or guess[, and it] would have to engage in one

of those three to be able to make a finding in favor of the Commonwealth.”

(Id. at 97). This timely appeal followed.2

        The Commonwealth presents three questions on appeal.

        I.    Did the trial court err in sua sponte holding a Frye[3] hearing
              at [Appellee’s] [intermediate punishment] [v]iolation
              [h]earing without prior notice to the parties, regarding the
              SCRAM monitor technology, which is widely accepted within
              the scientific community and is not novel scientific
              technology?


____________________________________________


2The Commonwealth filed its statement of errors complained of on appeal on
April 4, 2017. The trial court entered its opinion on May 18, 2017. See
Pa.R.A.P. 1925.

3   Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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       II.    Did the trial court erroneously disregard the SCRAM
              evidence    presented      at  [Appellee’s]    [intermediate
              punishment] [v]iolation [h]earing that confirmed that
              [Appellee] tampered with her SCRAM monitor, proving that
              [Appellee] violated the terms of [intermediate punishment]?

       III.   Did the trial court abuse its discretion in dismissing
              [Appellee’s] [intermediate punishment] violation?

(Commonwealth’s Brief, at 4).

       In its first issue, the Commonwealth argues that the court improperly

conducted a Frye hearing.              (See Commonwealth’s Brief, at 14-28).

Specifically, it claims that it “was under no obligation to present expert

testimony to explain the scientific workings of the SCRAM bracelet[,]” and

argues that the court improperly conducted a Frye hearing because it did so

without notice to the Commonwealth. (Id. at 19). We disagree.4

       Preliminarily,    we   note    that,    as   the   trial   court   observed,   the

Commonwealth has waived this argument for failure to raise it before the trial

court. See Pa.R.A.P. 302(a); (see also Trial Ct. Op., at 6-7). During the

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4 We observe that, at times, the Commonwealth’s argument does not
accurately reflect the record. For example, the Commonwealth asserts that
the trial “court erroneously ruled that there was a lack of scientific evidence
pursuant to Frye, without allowing the Commonwealth an opportunity to
present rebuttal evidence as allowed by Frye.” (Commonwealth’s Brief, at
20). However, the record clearly reflects that the trial court admitted the
SCRAM report in question and permitted the Commonwealth’s expert, Mr.
Kelly, to testify to the report to the extent he was familiar with it. (See N.T.
Hearing, 2/23/17, at 14-16, 87). The court reasoned that the question with
respect to its ultimate decision “distills out to, is there a sufficient body of
evidence brought forward by this witness under cross-examination that gives
us an adequate foundation of reliability . . . so as to allow us to make a
determination one way or the other.” (Id. at 86). Significantly, when the
court dismissed the violation it ruled that the Commonwealth failed to prove
the violation by a preponderance of the. (See id. at 96).

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intermediate punishment violation hearing, the Commonwealth did not object

to the court’s holding an evidentiary hearing, and, in fact, placed its witness

on the stand in an attempt to prove that Appellee violated the terms of her

intermediate punishment. The Commonwealth is prohibited from raising on

appeal that which it did not raise before the trial court.       (See Pa.R.A.P.

302(a)). Moreover, the Commonwealth’s first issue would not merit relief.

      As a general rule, this Court’s standard of review of a trial court’s
      evidentiary ruling, including a ruling whether expert scientific
      evidence is admissible against a Frye challenge, is limited to
      determining whether the trial court abused its discretion. An
      abuse of discretion may not be found merely because an appellate
      court might have reached a different conclusion, but requires a
      result of manifest unreasonableness, or partiality, prejudice, bias,
      or ill-will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005) (citations and

quotation marks omitted).

      Pennsylvania Rule of Evidence 702 concerns admissibility of expert

testimony for scientific evidence.

      Rule 702. Testimony by Expert Witnesses

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

            (a) the expert’s scientific, technical, or other
            specialized knowledge is beyond that possessed by
            the average layperson;

            (b) the expert’s scientific, technical, or other
            specialized knowledge will help the trier of fact to
            understand the evidence or to determine a fact in
            issue; and



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            (c) the expert’s methodology is generally accepted in
            the relevant field.

Pa.R.E. 702. “This Court has noted that the Frye test, which was adopted in

Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277

(1977), is part of Rule 702.” Dengler, supra at 380 (internal quotation marks

omitted) (citing Grady v. Frito-Lay, Inc., 839 A.2d 1038 (Pa. 2003)).

      Our Supreme Court has emphasized that, “the proponent of expert

scientific evidence bears the burden of establishing all of the elements for its

admission under Pa.R.E. 702, which includes showing that the Frye rule is

satisfied.” Grady, supra at 1045. “Whether a witness is qualified to render

opinions and whether his testimony passes the Frye test are two distinct

inquiries that must be raised and developed separately by the parties, and

ruled upon separately by the trial courts.”     Id. at 1045-46 (citation and

footnote omitted).

      In the instant case, the trial court continued the first intermediate

punishment violation hearing and clearly told the parties:        “[E]verybody

involved in [the SCRAM] report is going to show up the next time we’re going

to have the hearing. We’re going to have a full evidentiary hearing. We won’t

have any hearsay. We’ll have first person testimony . . . .” (N.T. Hearing,

2/01/17, at 10-11). Thus, the Commonwealth was aware that the trial court

was going to conduct a full evidentiary hearing with respect to the SCRAM

report. Accordingly, even if properly raised, the Commonwealth has not met

its burden of proving that the trial court’s decision was “result of manifest



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unreasonableness, or partiality, prejudice, bias, or ill-will[.]” Dengler, supra

at 379. Therefore, the Commonwealth’s its first issue would not merit relief.5

       In its second issue, the Commonwealth argues that the trial court

abused its discretion when it “wholly disregarded testimony of Mr. [Kelly], an

expert in SCRAM monitor data, who confirmed that [Appellee] tampered with

her SCRAM bracelet.”         (Commonwealth’s Brief, at 29; see id. at 29-37).

Specifically, it argues that, because Mr. Kelly confirmed that Appellee

tampered with her SCRAM bracelet, the Commonwealth met its burden of

proof that Appellee had violated her intermediate punishment, and the trial

court abused its discretion in dismissing the violation. We disagree.

       This Court applies the same scope and standard of review to evaluation

of a revocation of intermediate punishment proceeding as it does for a

revocation of probation hearing.          See Commonwealth v. Kuykendall, 2

A.3d 559, 563 (Pa. Super. 2010). “Revocation . . . is a matter committed to

the sound discretion of the trial court and that court’s decision will not be

disturbed on appeal in the absence of an error of law or an abuse of
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5 Furthermore, the Commonwealth offers no binding authority to support its
claim that SCRAM monitors are not novel science and, thus, the Frye test is
inapplicable. (See Commonwealth’s Brief, at 19-26). Although arguing that
certain parts of the SCRAM monitor system, infrared lasers and transdermal
alcohol detection, are widely accepted within the scientific community, the
Commonwealth fails to prove that SCRAM monitors are not novel scientific
evidence. (See id.). Thus, it has not met its burden under our standard of
review, to show that the trial court abused its discretion in conducting a full
evidentiary hearing with respect to the SCRAM monitor report. See Dengler,
supra at 379.



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discretion.” Commonwealth v. Perreault, 930 A.2d 553, 558 (Pa. Super.

2007), appeal denied, 945 A.2d 169 (Pa. 2008) (citations omitted); see also

Pa.R.Crim.P. 708 (rule concerning violation of probation, intermediate

punishment, or parole hearings).           The Commonwealth bears the burden of

proving an intermediate punishment violation by a preponderance of the

evidence.6 See Commonwealth v. Castro, 856 A.2d 178, 180 (Pa. Super.

2004).

       Instantly, the Commonwealth contends that the evidence was sufficient

to prove a violation of Appellee’s intermediate punishment. A challenge to the

sufficiency of evidence is

              a question of law subject to plenary review. We must
       determine whether the evidence admitted . . . and all reasonable
       inferences drawn therefrom, when viewed in the light most
       favorable to [Appellee] as the verdict winner, is sufficient to
       support all elements of the offenses. A reviewing court may not
       weigh the evidence or substitute its judgment for that of the trial
       court.

Perreault, supra at 558 (citation omitted).



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6 The Commonwealth asserts that it may use prima facie evidence to prove a
violation by a preponderance of the evidence. (See Commonwealth’s Brief,
at 16, 18). However, in support of this argument, the Commonwealth relies
on two cases wherein this Court held that prima facie evidence would be
sufficient, but only where the defendant did not challenge the violation.
(See id.) (citing Commonwealth v. Gochenaur, 480 A.2d 307, 309 (Pa.
Super. 1984) (Prima facie evidence of simple assault proved violation by
preponderance of evidence where Appellant corroborated he was bound for
court on simple assault charge); Commownealth v. Kates, 305 A.2d 701,
708 (Pa. 1973)). Here, Appellee opposed the tampering violation; therefore
the prima facie standard does not apply.

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      Here, the trial court explained that it “did not ignore such evidence, but

only found that the evidence and testimony was insufficient to meet the

Commonwealth’s burden of proof regardless of whether we were applying

Frye standards.”    (Trial Ct. Op., at 7-8) (emphasis added).        The court

explained that

      . . . presenting a witness, Mr. Kelly, who has no knowledge of the
      underlying technology or science of the SCRAM bracelets, testified
      as to what unnamed individuals or committee members reported
      to him constitutes inadmissible hearsay and is insufficient to
      met the Commonwealth’s burden of proof. Although the
      burden of proof is lower for the Commonwealth in [intermediate
      punishment] violation proceedings, we found that the
      Commonwealth failed to meet this burden.                      See
      [Commonwealth] v. Sims, 770 A.2d 346, 350 (Pa. Super. 2001)
      (“Unlike a criminal trial where the burden of proof rests with the
      Commonwealth to establish all the requisite elements of the
      charged offenses beyond a reasonable doubt, at a violation of
      probation/parole hearing the Commonwealth need only prove that
      a violation occurred by a preponderance of the evidence.”)[.]

(Trial Ct. Op., at 6) (emphases added).

      Moreover, the court concluded that Mr. Kelly’s

             testimony   was    simply    insufficient to   meet   the
      Commonwealth’s burden since he was not able to articulate the
      likelihood of an accidental obstruction to an actual degree of
      probability that might allow the trial court to determine if the
      burden had been met. Mr. Kelly was only able to state that
      “anything is possible.” (N.T. Hearing, 2/23/17, at 64).

(Id. at 8) (record citation formatting provided).

      Upon review, we discern no abuse of discretion. See Perreault, supra

at 558. We conclude that, viewing the evidence in the light most favorable to

Appellee, as verdict winner, the trial court properly considered all evidence



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before it and found, based on the facts of this case, that the Commonwealth

failed to prove by a preponderance of the evidence that Appellee violated the

terms of her intermediate punishment.          Accordingly, the Commonwealth’s

second issue does not merit relief.

      The Commonwealth’s third issue, claiming that the trial court abused its

discretion when it dismissed Appellee’s intermediate punishment violation

because the Commonwealth proved the violation by a preponderance of the

evidence, merely restates the arguments in its second issue and accordingly

does not merit relief. (See Commonwealth’s Brief, at 38-40).

      Therefore, because the Commonwealth has not shown that the trial

court abused its discretion in either conducting a full evidentiary hearing, or

in concluding that the Commonwealth failed to meet its burden, we affirm the

order of the trial court dismissing the intermediate punishment violation.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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