J-S07011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

MICHELE DIANE HOY,

                          Appellant                   No. 471 MDA 2015


            Appeal from the Judgment of Sentence March 11, 2015
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0000083-2012


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 18, 2016

       Michele Diane Hoy appeals from the March 11, 2015 judgment of

sentence of four to twelve months incarceration, which was imposed after

she was found guilty of two counts of possession of a controlled substance.

After careful review, we affirm in part and reverse in part.

       The following evidence was adduced at a split non-jury trial.     From

January 12, 2011, through January 18, 2011, Appellant was employed as a

certified nursing assistant with the Home Nursing Agency (the “Agency”) and

assigned to care for Roger Bierly, a hospice patient. Mr. Bierly’s caretaker,

Raenelle Medzre, who lived in an apartment at the rear of the residence,

picked up a prescription for methadone for Mr. Bierly on January 12, 2011,

and gave it to Joyce Bierly, his wife. N.T. Trial (Supplemental), 1/20/15, at
*
    Former Justice specially assigned to the Superior Court.
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5. She placed the prescription, which consisted of seven pills, on the table

where Mr. Bierly’s medications routinely were kept.   A second prescription

for methadone was retrieved by Mrs. Bierly from the pharmacy on January

17, 2011. Mrs. Bierly testified that, between January 12 th and January 17th,

none of the methadone was administered to her husband.

     On the evening of the 17th, Mrs. Bierly invited Appellant to spend the

night because it was snowing heavily and Appellant was scheduled to

provide care in the morning. That night, there were three persons staying in

the Bierly home; Mrs. Medzre and her husband were in the apartment. At

approximately 8:00 a.m. on January 18th, registered nurse Randy Twoey

arrived for a regularly scheduled visit.   She determined that Mr. Bierly

needed methadone for pain.        When the nurse went to retrieve the

methadone, the bottle was empty. A thorough search of the premises failed

to uncover the medications, but the nurse’s notes indicated that two empty

prescription bottles were located. Ms. Twoey reported the missing drugs to

the physician, her administrator, and the director of nursing.   Thereafter,

investigators proceeded to the house and, in order to secure the narcotics,

removed morphine that was kept in the refrigerator.

     Mrs. Bierly testified that she did not take the methadone and that her

husband was bedridden and incapable of administering the drugs to himself.

Mrs. Bierly recalled seeing the methadone on the medicine table before she

went to bed the evening of January 17th. Although there were as many as

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four other caregivers at the home during the six-day period, Appellant was

the only other person who had access to the drugs after they were last seen

by Mrs. Bierly on January 17th.

      The administrator of the Agency, Lisa Korman, testified that she called

Appellant and asked her to come to the office on January 18, 2011. After

being advised that she was accused of taking some drugs from the Bierly

home, Appellant agreed to submit to a drug test. Following the drug test,

Ms. Korman placed Appellant on suspension pending the results and

investigation. On January 21, 2011, while the results of the test were still

outstanding, Appellant telephoned Ms. Korman.      Appellant was upset and

she wanted to resign. The administrator reminded her that the suspension

was for her benefit and asked her if she wanted to think about it over the

weekend.    When Appellant reiterated her desire to resign, Ms. Korman

advised her that she was required to personally come into the office, turn in

her cell phone and other equipment, and fill out a termination form.

Appellant went to the office on Monday, January 24, 2011, returned her

equipment and completed the form.

      Sherri O’Donald, a former agent with the Attorney General’s office,

was contacted by the Agency with a complaint against Appellant.         After

preliminary investigation, she met with Appellant.    Ms. O’Donald advised

Appellant that she did not have to speak with her and that she was free to

go at any time.    Appellant confirmed she spent the night of January 17,

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2011, at the Bierly residence, she was there when the nurse arrived at 8

a.m. on the morning of January 18, and that she voluntarily submitted to a

drug screening.    Appellant told the agent that her physician prescribed

methadone and morphine, a representation that the agent subsequently

determined was false.    Appellant also reported that, in the past, she had

taken narcotics for back pain, specifically morphine, when people offered it

to her.

      Over Appellant’s objection, Phyllis Chandler, a lab manager and

certifying scientist for LabCorp in North Carolina, provided testimony on

behalf of the Commonwealth about the results of Appellant’s drug test. As a

certifying scientist, she reviews all data and results for a particular sample,

including the chain of custody documents. In preparation for her testimony,

she conducted an independent analysis of the hard data obtained from the

urinalysis performed on Appellant’s urine. She explained that immunoassay

performed on the sample was presumptively positive for methadone and

opiates. The sample then went to confirmation testing by chromatography

mass spectrometry (GCMS), which determined that the opiate present was

morphine and confirmed the positive methadone result.        The witness also

verified the chain of custody for the sample was intact. Over objection, the

lab report was admitted into evidence.

      John W. Gehman, a licensed physician and owner of Juniata Valley

Occupational Health in Lewistown, Pennsylvania, was called to testify. Dr.

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Gehman is also a certified medical review officer, charged with reviewing the

results of drug tests and interpreting the validity of the test results, which

includes documenting that the chain of custody was properly maintained and

the specimen handled properly.        Based on the level of morphine found in

Appellant’s    urine   sample,   he   stated   that   there   was   no   conclusive

documentation that the morphine was from medication as opposed to poppy

seeds or some other source. N.T., 3/3/15, at 33.

      Dr. Laura Kopinski, Appellant’s primary care physician in late 2010 and

early 2011, testified that she did not prescribe methadone or morphine for

her patient. At the close of the evidence, the court ruled from the bench. It

found Appellant “guilty of unlawfully, knowingly, or intentionally possessing

methadone and morphine, in violation of Section 780-113(A)(16) of Title 35,

as charged.” Id. at 39. Appellant was sentenced as previously mentioned

on March 11, 2015.

      Appellant filed a timely appeal to this Court and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. She raises three issues for our review:

      I.      Did the Commonwealth fail to present sufficient evidence
              appellant  constructively    possessed     morphine  and
              methadone as a result of a positive drug test?

      II.     Was appellant’s Sixth Amendment Right to confront and
              cross-examine the witnesses against her violated?




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      III.   Did the Trial Court abuse its discretion by sentencing
             appellant in the aggravated range of the sentencing
             guidelines?

Appellant’s brief at 6.

      In reviewing a challenge to the sufficiency of the evidence, we

examine all of the evidence admitted, even improperly admitted evidence.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).

We consider the evidence in the light most favorable to the verdict winner,

herein the Commonwealth, drawing all possible inferences from the evidence

in its favor. Id. When evidence exists to allow the fact-finder to determine

beyond a reasonable doubt each element of the crimes charged, the

sufficiency claim will fail. Id.

      The evidence need not preclude the possibility of innocence entirely.

The fact-finder is free to believe wholly or in part, whatever evidence it

chooses.     Id.   Additionally, the Commonwealth may prove its case by

circumstantial evidence alone. It is only when “the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances,” that the defendant is entitled to relief.

Id.

      Appellant contends first that the evidence that she possessed

controlled substances was insufficient to sustain the convictions. Since no

controlled substances were found on her person, she maintains that under

Commonwealth v. Valette, 613 A.2d 548 (Pa. 1992), the Commonwealth

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was required to prove constructive possession.          She argues that the

presence of controlled substances in her bloodstream, standing alone, was

legally insufficient to support a possession charge. Furthermore, Appellant

characterizes the evidence that she took and imbibed Mr. Bierly’s narcotic

medications as conjecture and speculation.

     The   Commonwealth      counters   that   “the   circumstantial   evidence

established [Appellant] exercised ‘a conscious dominion over the illegal

substance’ beyond the ‘mere presence’ of the drugs in her bloodstream.”

Appellee’s brief at 14 (quoting Commonwealth v. Santiesteban, 552 A.2d

1072, 1074 (Pa.Super. 1988).       In support thereof, the Commonwealth

points to evidence that the prescriptions were on the medicine table within

Appellant’s control and went missing when only Mrs. Bierly, her husband,

and Appellant were present in the home.         Mr. Bierly was incapable of

administering his own medications and Mrs. Bierly denied taking it.

     The Commonwealth maintains further that Appellant’s decision to quit

her job after submitting to a drug test, but before the results were known,

demonstrated consciousness of guilt.      Appellant lied to the investigating

officer about having a prescription for methadone and morphine.            Her

admission that she would take non-prescribed pain medication on occasion

to relieve back pain supplies a motive. Finally, the drug tests conclusively

established the presence of methadone and a presumptive presence of

morphine in her system. As to the latter, the Commonwealth contends that

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evidence that Mr. Bierly’s morphine was tampered with at the same time as

the methadone disappeared is circumstantial evidence that Appellant

exercised a conscious dominion over that illegal substance as well.

       We find the evidence legally sufficient to sustain the conviction for

possession of methadone.          The circumstantial evidence, together with the

drug test results, viewed in the light most favorable to the Commonwealth

as the verdict winner, supports the inference that Appellant took Mr. Bierly’s

methadone.

       The record is not as clear with regard to the morphine. Contrary to

the Commonwealth’s representation, there was no evidence either that the

refrigerated morphine was missing or that someone had tampered with it.

The only evidence with regard to Mr. Bierly’s morphine was offered by Mrs.

Bierly. She testified that investigators removed all narcotics from the home,

including the bottle of liquid morphine that was in the refrigerator.      Mrs.

Bierly explained that the morphine was taken because it was possible that

some was missing.         Mrs. Bierly testified she did not actually observe the

morphine bottle at the time, and thus, did not prove morphine was missing.

No evidence was offered by the Commonwealth that morphine was actually

missing from the bottle or that the bottle had been disturbed. 1 The absence

____________________________________________


1
   Assuming arguendo that the Commonwealth had offered proof that
someone tampered with the morphine, the fact that Appellant had
(Footnote Continued Next Page)


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of such evidence, together with the Commonwealth’s own evidence that the

level of morphine in Appellant’s urine was consistent with the ingestion of

poppy seeds or some other innocuous substance, renders the conviction for

possession of morphine infirm.                 Thus, we reverse the conviction for

possession of morphine.

      Next Appellant claims that her Sixth Amendment right of confrontation

was violated when the court permitted Phyllis Chandler, rather than the

persons who actually performed the tests, to testify about the test results

showing    controlled      substances     in     her   urine.2   "Our   review   of   [a]

Confrontation Clause issue presents us with a question of law, and thus our

standard of review is plenary and our scope of review is de novo."

Commonwealth v. Weaver, 76 A.3d 562, 569 (Pa.Super. 2013), aff’d per

curiam Commonwealth v. Weaver, 105 A.3d 656 (Pa. 2014).

      The Confrontation Clause in the Sixth Amendment to the United States

Constitution applies to both federal and state prosecutions and provides

that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
                       _______________________
(Footnote Continued)

presumptive levels of morphine in her system would not have been sufficient
to prove constructive possession of that drug. The Commonwealth would
have had to offer some proof that the tampering occurred when Appellant
alone had access to the substance.
2
  The Pennsylvania Constitution provides that, "[i]n all criminal prosecutions
the accused hath a right . . . to meet the witnesses face to face." Pa.
Const. art. I, § 9. n4. Appellant, however, does not base her claim on state
constitutional grounds.



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be confronted with the witnesses against him. . . ." U.S. Const. Amend. IV.

The right is a procedural one intended to ensure the reliability of evidence

through cross-examination.    See Commonwealth v. Yohe, 39 A.3d 381,

384-385 (Pa.Super. 2012).

      Appellant acknowledges that the issue herein is similar to the one in

Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013), but she contends that

the instant case is distinguishable on its facts. Therein, our Supreme Court

found no confrontation violation where the laboratory’s forensic toxicologist

who directly supervised the lab technicians who performed the blood tests

was permitted to testify as to the results.      Appellant maintains that Ms.

Chandler, unlike Dr. Lee Blum, the witness in Yohe, did not oversee the

actual testing of the specimen in this case and only reviewed the results four

years after completion.      Appellant objected at trial to Ms. Chandler’s

testimony and report on this basis.

      The Commonwealth counters that the instant case is directly on point

with Yohe. Ms. Chandler analyzed the raw data from the testing, authored

the report that was proffered and admitted, and certified the results. The

testing occurred four years prior to trial, and admittedly Ms. Chandler was

not present at LabCorp at that time.       Nonetheless, she reviewed the file,

compared the raw data, certified the accuracy of the results, reviewed the

chain of custody, and signed the report in much the same way as Dr. Blum.

The certification, according to the Commonwealth, was based on a true

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analysis, “not merely a parroting of a prior analysis supplied by another

individual.” Appellee’s brief at 22.

      The issue of what constitutes a testimonial statement and who can

offer testimony regarding that statement for Confrontation Clause purposes

has been the subject of several United States Supreme Court and

Pennsylvania appellate court decisions. Prior to the United States Supreme

Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), it was

generally the view that “the Confrontation Clause did not bar the admission

of out-of–court statements that fell within a firmly rooted exception to the

hearsay rule."    Ohio v. Roberts, 448 U.S. 56 (1980) (abrogated by

Crawford). However, in Crawford, the Court focused on whether a

statement was testimonial in nature and held "Testimonial statements of

witnesses absent from trial [can be] admitted only where the declarant is

unavailable, and only where the defendant has had a prior opportunity to

cross-examine." Crawford, supra at 59.

      Post-Crawford, much of the focus was on whether a statement was

testimonial in nature and subject to Crawford. See Williams v. Illinois,

132 S.Ct. 2221, 2223 (2012) (collecting cases).           In Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009), the issue was whether the admission

of certificates of analysis, which described results of forensic testing that

determined    certain   seized   substances     to   be   cocaine,   violated   the

Confrontation Clause. The defendant contended that he had a constitutional

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right to confront the analysts who conducted the tests and that they should

have been required to testify at trial. The Supreme Court agreed that the

certificates of analysis were affidavits made under circumstances leading a

reasonable person to believe they would be used at trial, and thus,

testimonial statements, and the defendant had a Sixth Amendment right to

confront them. Since the defendant was not afforded that right, the Court

held the certificates were inadmissible.

      Subsequently, this Court was presented with the issue of who is an

appropriate witness to testify about a forensic report that constituted a

testimonial statement under the Confrontation Clause. In Commonwealth

v. Barton-Martin, 5 A.3d 363 (Pa.Super. 2010), we held that under

Melendez-Diaz, neither the laboratory administrative director nor the

custodian of records for the hospital where a blood alcohol analysis was

performed could testify about a forensic report under the Confrontation

Clause.    Absent a showing that the laboratory technician was unavailable

and that the defendant had a prior opportunity to cross-examine that

witness, the admission of the blood alcohol results was error.

      One year later, the United States Supreme Court addressed the

Barton-Martin issue in Bullcoming v. New Mexico, 564 U.S. 647, 131 S.

Ct. 2705 (2011). A blood alcohol content report was offered into evidence.

The analyst who had completed, signed, and certified the report, did not

testify.   Instead, an uninvolved analyst from the same laboratory offered

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testimony as to the procedures and equipment used. The Court found that

the certifying analyst's report was testimonial, and held that the trial court

erred in permitting that testimonial statement to come into evidence through

the in-court testimony of another witness.       The Court called the latter

“surrogate testimony,” and reasoned that the surrogate could not convey

what the certifying analyst knew or observed, the methods used, or any

lapses in the process. Id. at 2708. It concluded, “The analysts who write

reports introduced as evidence must be made available for confrontation

even if they have the scientific acumen of Mme. Curie and the veracity of

Mother Teresa." Id. at 2709. In short, "The . . . analyst who must testify is

the person who signed the certificate."      Id. at 2716 (quoting Melendez–

Diaz, supra at 2545).

      After Bullcoming, our Supreme Court decided Yohe, supra.            The

issue was whether the testimony of Dr. Blum, who certified BAC test results,

prepared and signed the report, but who did not observe or conduct the

actual testing, satisfied the Confrontation Clause.      The Commonwealth

maintained that since Dr. Blum reviewed the raw data and generated an

expert report based on his review, the right of confrontation was met. The

Supreme Court agreed, distinguishing Barton-Martin on its facts.         See

Yohe, supra at 542 (“Dr. Blum did not testify as the custodian of records,

nor was the lab report admitted as a business record”). This was not the

situation in Bullcoming where the testifying witness merely read the

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analyst's report into evidence.      Dr. Blum “did not simply parrot another

analyst.” Yohe, 79 A.3d at 523. “[R]ather, he was involved with reviewing

all of the raw testing data, evaluating the results, measuring them against

lab protocols to determine if the results supported each other, and writing

and signing the report.” Id.

      The Commonwealth contends that Yohe is on point and dispositive

herein. We agree. Ms. Chandler, like Dr. Blum, reviewed and analyzed the

raw data, authored a report containing the analysis, verified the propriety of

the methods used, reviewed the chain of title of the specimen, and formed

an independent opinion certifying the results.    The fact that Ms. Chandler

was not present at the lab when the testing was conducted does not

mandate a contrary result.     This scenario is readily distinguishable from

Melendez-Diaz, where the prosecution proffered the report without its

author who could be cross-examined regarding its contents and conclusions.

Hence, we find no merit in Appellant’s claim that her constitutional right to

confrontation was violated herein.

      Finally, Appellant mounts a challenge to the discretionary aspects of

her sentence. She claims, without citation to authority, that her “steadfast

insistence on her innocence” and “inconvenience to witnesses” were

inadequate reasons to sentence her in the aggravated range.        Appellant’s

brief at 17.




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       Preliminarily, we note that, "[T]here is no absolute right to appeal

when challenging the discretionary aspect of a sentence." Commonwealth

v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). In order to present

such a claim on appeal, the appellant must first raise the issue in a post-

sentence motion or during the sentencing proceedings.               Furthermore, a

defendant is required to preserve the issue in a court-ordered Pa.R.A.P.

1925(b)     concise     statement       and    a   Pa.R.A.P.   2119(f)   statement.

Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012). Finally, the

issue must present a substantial question.

       Our review of the certified record reveals that Appellant did not object

at sentencing that the aggravated range sentence was improper.              Nor did

she file a post-sentence motion raising the issue. Hence, this discretionary

sentencing claim is waived. See Commonwealth v. Rhoades, 8 A.3d 912,

915-16 (Pa.Super. 2010) (citations omitted) ("Issues challenging the

discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.").3

____________________________________________


3
    The Commonwealth argues that Appellant waived her discretionary
sentencing issue by failing to present a properly developed argument in her
brief. See Pa.R.A.P. 2119(a). We agree, and find waiver on this basis as
well.



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      For the foregoing reasons, Appellant’s conviction for possession of

morphine is reversed.     Since the sentence imposed for that offense is

identical to and runs concurrently with the sentence imposed at Count I for

possession of methadone, our disposition does not implicate the overall

sentencing scheme and no remand for resentencing is required.

      Appellant’s conviction at Count II of possession of a controlled

substance (morphine) is reversed, and the concurrent sentence of four to

twelve months imprisonment imposed at that count is vacated.           The

judgment of sentence of four to twelve months imprisonment, which was

imposed at Count I for possession of a controlled substance (methadone), is

affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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