J-A30038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MILES EMERICK HERMANSON                    :
                                               :
                       Appellant               :   No. 198 MDA 2019

       Appeal from the Judgment of Sentence Entered September 12, 2018
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000123-2017


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                             FILED JANUARY 06, 2020

        Appellant, Miles Emerick Hermanson, appeals from the judgment of

sentence of 72 hours to six months of confinement and 30 days of probation,

to be served concurrently, which was imposed after his conviction at a bench

trial for driving under the influence (“DUI”) of a Schedule I controlled

substance (first offense), possession of a small amount of marijuana only for

personal use, and no head lamps.1 Appellant challenges the admission of the

laboratory blood test result. We affirm.

        At Appellant’s trial, Dr. Karla Walker, Director of Clinical Toxicology

Laboratories at MedTox Laboratories,2 testified about the procedure used to
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(d)(1)(i), 35 P.S. § 780-113(a)(31)(i), and 75 Pa.C.S.
§ 4303(a), respectively.
2   MedTox Laboratories is an approved testing center in Pennsylvania. Id.
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test the sample of Appellant’s blood that police had taken pursuant to a traffic

stop on October 30, 2016. Trial Court Opinion, filed January 17, 2019, at 3.

“That procedure involved multiple people who operated and/or interpreted the

results of testing equipment.” Id. Although “there [was] no dispute that Dr.

Walker was certified as an expert in forensic toxicology[,]” Appellant “objected

to Dr. Walker’s testimony as having insufficient foundation, and argued that

her   testimony     would    be    hearsay     and   would   violate   [his]   right   to

confrontation.” Id. at 3-4. In response to Appellant’s objection, Dr. Walker

testified that she “reviewed the file, evaluated the results, ensured the lab

protocols had been followed, provided a litigation packet to a clerk to fill out,

and, at trial, provided her own opinion concerning [Appellant]’s blood

analysis.” Id. at 7-8. The following exchange then occurred:

       [THE COURT:]       Ma’am, would you personally sign off on the
       results of the testing that were performed in this case?

       THE WITNESS: Yes. I provided a litigation package that I
       signed off on. That I reviewed all of the results and agree with
       them. . . .

       THE COURT: . . . [S]he’s here personally and she’s testified that
       she will sign off on the results of her Laboratory.

N.T. at 113-14. The trial court overruled Appellant’s objection, and Dr. Walker

testified that Appellant’s blood tested positive for THC. 3 Trial Court Opinion,

filed January 17, 2019, at 3. At the conclusion of the trial, the court found


____________________________________________


3 “THC stands for tetrahydrocannabinol and is the active ingredient of
marijuana.” Commonwealth v. Jones, 121 A.3d 524, 526 n.3 (Pa. Super.
2015).

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Appellant guilty of the aforementioned charges.             N.T. at 146.       On

September 12, 2018, immediately following sentencing, Appellant filed post-

sentence motions, including a motion for a new trial on the basis that the

verdict was against the weight of the evidence. On January 17, 2019, the trial

court entered an order denying Appellant’s post-sentence motions, as well as

an accompanying opinion. On February 1, 2019, Appellant filed this timely4

direct appeal.5

       Appellant presents the following issues for our review:

       1.     Did the trial court err in denying [Appellant]’s Post-Sentence
       Motion due to the Commonwealth’s failure to produce the analyst
       that performed the blood test or a witness that could properly
       certify its result, thereby depriving [Appellant] of his right to
       confront witnesses against him as protected by the 6th and 14th
       Amendments of the United States Constitution, as well as his
       rights under Article 1, Section 9 of the Pennsylvania Constitution?

       2.   Did the trial court abuse its discretion in denying
       [Appellant]’s Post–Sentence Motion where the verdict as to Count
____________________________________________


4 A trial court has 120 days to decide a post-sentence motion, and, if it fails
to decide the motion within that period, the motion is deemed denied by
operation of law. See Pa.R.Crim.P. 720(B)(3)(a). When the motion is deemed
denied by operation of law, the clerk of courts shall enter an order deeming
the motion denied on behalf of the trial court and serve copies on the parties.
See Pa.R.Crim.P. 720(B)(3)(c). In the current action, the 120th day was
January 10, 2019; however, the clerk of courts did not enter an order deeming
the motion denied. Nevertheless, Appellant’s notice of appeal was timely
irrespective of whether the final order is considered to have been entered
January 10, 2019 (the date the post-sentence motion should have been
deemed denied), or January 17, 2019 (the date that the trial court’s order
denying the post-sentence motion was entered).
5 On February 22, 2019, Appellant filed his statement of errors complained of
on appeal. On February 27, 2019, the trial court entered an order stating that
the opinion that accompanied its order of January 17, 2019, would serve as
its opinion pursuant to Pa.R.A.P. 1925(a).

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      2 - DUI: Controlled Substance (Schedule 1) was against the
      weight of the evidence because of the Commonwealth’s failure to
      present the analyst who performed the blood test or a witness
      that could properly certify its results?

Appellant’s Brief at 1 (suggested answers and trial court’s answers omitted).

      Appellant contends that the Commonwealth’s failure to produce the

analyst who performed the blood test or a witness who “could properly certify

its result” violated his Sixth Amendment “right to confront witnesses against

him[.]”     Appellant’s Brief at 22.      He argues that “Sixth Amendment

confrontational rights with respect to laboratory technicians and analysts

clearly applies to blood test reports which show the presence of alcohol or

controlled substances in a DUI defendant’s blood.” Id. at 23.

      The Sixth Amendment guarantees that, “in all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. Amend. VI. “The Confrontation Clause . . . prohibits out-

of-court testimonial statements by a witness unless the witness is unavailable

and   the   defendant   had   a   prior   opportunity   for   cross-examination.”

Commonwealth v. Yohe, 79 A.3d 520, 531 (Pa. 2013).

      “Whether the admission of the [t]oxicology [r]eport violated Appellant’s

rights under the Confrontation Clause is a question of law, for which our

standard of review is de novo and our scope of review is plenary.” Id. at 530.

      In [Commonwealth v.] Brown, [185 A.3d 316, 331 (Pa. 2018)],
      our Supreme Court was asked to determine whether an expert
      forensic pathologist, who had no role in the autopsy of the victim
      other than his review of the autopsy photographs and autopsy
      report prepared by a non-testifying witness, was permitted to
      testify that, in his opinion, “four gunshot wounds caused the


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      victim’s death[.]” . . . In holding the expert’s opinion was
      admissible, and there was no Confrontation Clause violation, our
      Supreme Court relevantly indicated the following:

         We recognize that in Bullcoming [v. New Mexico, 564
         U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) ], the
         High Court unquestionably held the right to confrontation is
         violated when the analyst who writes a report is not made
         available for cross-examination even if the report is wholly
         reliable. The testimony of a surrogate analyst is insufficient
         to vindicate the right to confrontation in such circumstances
         because cross-examination of the surrogate cannot expose
         any lapses or infirmities in the testing process or protocol
         employed by the analyst who authored the report.
         Significantly, for purposes of our present analysis, the
         Bullcoming Court noted no argument was presented in that
         case that the surrogate analyst had “any ‘independent
         opinion’ concerning Bullcoming’s BAC.” Here, [the expert
         forensic pathologist] testified his opinion four gunshot
         wounds caused the victim’s death was his own
         independent opinion. . . . In addition to the autopsy
         report, [the expert forensic pathologist] also examined
         autopsy photographs to support his own independent
         opinion as to the cause of death. . . . There is no
         Confrontation Clause concern over the opinions [the
         expert forensic pathologist] expressed based on his own
         review of the autopsy photographs because the photos were
         not testimonial statements of an unavailable witness. . . .

      Brown, 185 A.3d at 330-3[1] (footnote and citations omitted).

Commonwealth v. Leaner, 202 A.3d 749, 772-73 (Pa. Super.) (emphasis

added), appeal denied, 216 A.3d 226 (Pa. 2019).

      In the current action, Dr. Walker was “an expert in forensic toxicology”

who “reviewed all of the results” from Appellant’s laboratory blood test and

“provided her own opinion concerning [Appellant]’s blood analysis.”       Trial

Court Opinion, filed January 17, 2019, at 4, 8; N.T. at 113. Accordingly, this

appeal is analogous to Commonwealth v. Brown, 185 A.3d 316, 331 (Pa.



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2018), where an expert who had no role in the laboratory procedure but who

had reviewed a report prepared by a non-testifying witness gave an

independent opinion in court; the Supreme Court of Pennsylvania concluded

that the expert’s opinion was admissible and that there was no Confrontation

Clause violation. See also Leaner, 202 A.3d at 772. Since Dr. Walker was

also an expert who had no role in the laboratory procedure but who had

reviewed the report prepared by technicians who did not testify and who gave

an independent opinion of the results in court, we likewise find that her opinion

was admissible and that no Confrontation Clause violation occurred.

      Consequently, Appellant’s first appellate challenge is meritless, and his

second appellate challenge hence is moot. Ergo, we affirm his judgment of

sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/06/2020




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