J.S45039/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
BRANDON R. HARRELL,                         :
                                            :
                          Appellant         :     No. 2428 EDA 2013


              Appeal from the Judgment of Sentence July 22, 2013
                In the Court of Common Pleas of Bucks County
               Criminal Division No(s).: CP-09-CR-0006412-2012

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 22, 2015

        Appellant, Brandon R. Harrell, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas following a jury trial

and his convictions for manufacture, delivery, or possession with intent to

manufacture or deliver a controlled substance1 (“PWI”), possession of a

controlled substance,2 and possession of drug paraphernalia.3         Appellant

contends the trial court erred in (1) failing to dismiss the prosecution for



*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
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pre-arrest delay, (2) failing to require the Commonwealth to disclose the

identity of the confidential informant, and (3) sustaining an objection when

defense counsel asked the forensic chemist why she was no longer with the

Bucks County Crime Lab. Additionally, Appellant claims the court abused its

discretion in allowing both forensic chemists to testify that the substance in

question was cocaine when neither rendered an opinion to a reasonable

degree of scientific certainty. We affirm.

      The trial court summarized the facts of this case as follows:

         Pursuant to a lead from a confidential informant (“CI”), the
         Bristol Township Police Department conducted a narcotics
         investigation targeting Appellant. The CI and Officer Dino
         Lepore of the Bristol Township Police Department set up a
         drug sale with Appellant over the phone. The sale was to
         take place in the area of Pond and Washington Streets in
         Bristol Borough, in Bucks County, Pennsylvania, on
         November 4, 2010.

            On November 4, 2010[,] Officer Lepore acted in an
         undercover capacity and met the CI at a predetermined
         location. Officer Lepore conducted a pat down search of
         the CI and subsequently searched his vehicle.           He
         determined the CI did not have any money or contraband
         on his person or in his vehicle prior to meeting Appellant.
         Officer Lepore then gave the CI $100 to use in the drug
         sale.[4]

            Officer Lepore and the CI traveled from the
         predetermined location to a parking lot on the corner [of]
         Pond and Washington Streets in Bristol Borough and
         parked the vehicle. The CI was seated in the driver’s seat
         and Officer Lepore was seated in the passenger’s seat.
         After being parked for a few minutes, Appellant drove up

4
  As set forth in further detail, infra, the transaction was observed by
Sergeant Joseph Moors and Officer Elifa Soto.



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         in a Nissan vehicle and parked next to the CI’s vehicle on
         the driver’s side. Appellant exited the Nissan vehicle and
         walked across the front of the CI’s vehicle to the
         passenger’s side door. Upon realizing Officer Lepore was
         in the passenger’s seat, Appellant entered the vehicle from
         the rear passenger’s side door. The CI introduced Officer
         Lepore to Appellant as his co-worker, at which time Officer
         Lepore turned around to shake Appellant’s hand. Officer
         Lepore was not dressed in his police uniform, but was
         dressed in plainclothes at this time.

            While seated in the CI’s vehicle, the dome light was
         turned on and Officer Lepore saw Appellant extend his
         right hand and give the CI three glassine baggies that
         contained a white, rock-like substance. The CI took the
         baggies and placed them in the center console of the
         vehicle. The CI then turned around and handed Appellant
         $100 that was supplied by the Bucks County Narcotics
         Fund.    Appellant then left the vehicle.   The entire
         encounter took about three to four minutes.

             The CI and Officer Lepore drove back to the
         predetermined location to meet with two other police
         officers. Once there, the CI turned over the glassine
         baggies to Sergeant Joseph Moors, the evidence custodian,
         who processed the evidence. Appellant was not arrested
         that day because the CI was to be used in future drugs
         buys. . . .

             Sergeant Moors was the evidence custodian and
         received the glassine baggies from the CI on November 4,
         2010. He brought the evidence to the Bucks County Crime
         Lab where it was tested. Sergeant Moors also ran a
         license plate check on the Nissan vehicle present at the
         drug buy and the vehicle was registered to Appellant. On
         April 12, 2012, Pennsylvania State Police arrested
         Appellant.

Trial Ct. Op., 12/10/13, at 2-4 (references to record omitted).




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      Following a jury trial,5 Appellant was found guilty of all charges.

Appellant was sentenced to eleven-and-one-half to twenty three months’

imprisonment. This timely appeal followed. Appellant filed a court-ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal 6 and the trial

court filed a responsive opinion.

      Appellant raises the following issues for our review:

         A. Did the Lower Court err in failing to dismiss the
         prosecution for pre-arrest delay?

         B. Did the Lower Court err in failing to require the
         Commonwealth to disclose the identity of the confidential
         informant?

         C. Did the Lower Court err in sustaining an objection when
         defense counsel asked forensic chemist, Carol Sendecki
         “Why are you no longer with the Bucks County Crime
         Lab?”

         D. Did the Lower Court abuse its discretion in allowing
         both forensic chemists to testify that the substance in
         question was cocaine, when neither rendered an opinion to
         a reasonable degree of scientific certainty and did this
         error affect the sufficiency of the evidence?


5
  Appellant was also charged in connection with a drug buy that occurred on
November 12, 2010. Following the consolidated jury trial, he was found not
guilty of the charges stemming from the November 12th buy. Trial Ct. Op.
at 2.
6
  We note that Appellant also raised the following issue in his Pa.R.A.P.
1925(b) statement: “The Lower Court erred in failing to instruct the jury
regarding the testimony of an expert witness, as both forensic chemists
rendered expert opinions.”     Appellant’s Pa.R.A.P. 1925(b) Statement,
10/8/13, at 2. This issue was abandoned on appeal as it was not raised in
Appellant’s brief. See Commonwealth v. Dunphy, 20 A.3d 1215, 1218
(Pa. Super. 2011).



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Appellant’s Brief at 5.

      First, Appellant contends the trial court erred in failing to dismiss the

criminal complaint due to pre-arrest delay.7 Appellant avers his right to due

process was violated by the pre-arrest delay.8 Id. at 11. He claims he was

prejudiced due to the delay because “[h]e was unable to specifically state his

whereabouts on the night[ ] in question.” Id. at 14. Additionally, he avers

7
  On December 28, 2012, Appellant filed an omnibus pre-trial motion to
dismiss based upon pre-arrest delay. Following a hearing, the trial court
denied the motion. See N.T., 3/21/13, at 81.
8
  We note Appellant argues “where the evidence shows that the delay was
the product of intentional, bad faith, or reckless conduct by the prosecution
a court must find a violation of due process,” citing Commonwealth v.
Scher, 803 A.2d 1204 (Pa. 2002) (plurality). Appellant’s Brief at 12. In
Commonwealth v. Wright, 865 A.2d 894 (Pa. Super. 2004), discussing
the divergent views of the members of the Pennsylvania Supreme Court, this
Court opined:

         Although    the    Pennsylvania   Supreme      Court,   in
         Commonwealth v. Scher, [ ] 803 A.2d 1204 ([Pa.]
         2002) (Opinion Announcing the Judgment of the Court), .
         . . sought to resolve the issue confronted by trial courts
         when there has been a significant period of delay between
         a crime and the prosecution of that crime, that Court was
         unable to agree on a controlling standard as to when
         such delay constitutes a due process violation.

Id. at 900 (emphasis added and footnote omitted). Scher was a plurality
opinion. “While the ultimate order of a plurality opinion, i.e., an affirmance
or reversal, is binding on the parties in that particular case, legal conclusions
and/or reasoning employed by a plurality certainly do not constitute binding
authority.” Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super.
2011) (en banc) (citation omitted). Therefore, Appellant’s reliance upon
Scher is unavailing. See id.




                                      -5-
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prejudice because his girlfriend, Natalie Wolfe, could have served as an alibi

witness for him but, due to the delay, she was unable to do so. Id. at 13,

15.

      “As this is an issue involving a constitutional right, it is a question of

law; thus, our standard of review is de novo, and our scope of review is

plenary.” Commonwealth v. Baldwin, 58 A.3d 754, 762 (Pa. 2012). The

Pennsylvania Supreme Court holds

           a defendant’s due process right against pre-arrest delay is
           limited; law enforcement is not required to make an arrest
           as soon as enough evidence has been accumulated to
           constitute probable cause, or even proof beyond a
           reasonable doubt. Indeed, there is no right to be arrested
           or right to prosecution. Only if a defendant can show “that
           the passing of time caused actual prejudice and that
           the prosecution lacked sufficient and proper reasons
           for postponing the prosecution,” is he entitled to relief.
           As such, a due process violation will be found only in
           “extreme cases” when there are “no valid reasons” for the
           delay.

Commonwealth v. Simpson, 66 A.3d 253, 283 (Pa. 2013) (emphasis

added and citations omitted).

      In Simpson, the defendant asserted “he was prejudiced because,

after the three-year delay, he could no longer recall his whereabouts at the

time of the crime or find any witness who could testify as to his whereabouts

. . . .”   Id. at 283.    The Simpson Court noted that “the gravamen of

Appellant’s assertion of prejudice—that he could not remember where he

was on the night in question, depriving him of alibi witnesses—was rejected

in [United States v. ] Marion, [404 U.S. 307, 325-26 (1971)].” Id.


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      Instantly, the trial court held a hearing on the omnibus pre-trial

motion for dismissal of the charges against Appellant for pre-arrest delay.

Officer Lepore testified the CI worked on other cases for Bristol Borough.

N.T., 3/21/13, at 11. There were ten parties and approximately twenty-five

controlled buys after the November 4th buy from Appellant.        Id. at 12.

Undercover officers are paired with CI’s in order to make a buy. Id. at 12-

13. If the identity of the CI was exposed, both the CI and the undercover

officer’s safety would be in danger. Id. at 13. The reason for the pre-arrest

delay was the ongoing drug purchasing activity of the CI and undercover

officer during this time period. Id.

      Appellant testified that at the time he learned of the charges against

him, he was living with his girlfriend. Id. at 34. He was preparing to have

surgery on his left ankle. Id. He “was home most of the night.” Id. at 35.

He did not have a cell phone because he was unemployed and waiting for his

unemployment and workers’ compensation.       Id.   He could not remember

specifically where he was on November 4, 2010. Id. at 38.

      We find the Commonwealth had valid reasons for the pre-arrest delay,

and thus, Appellant’s constitutional rights were not violated. See Simpson,

66 A.3d at 283. Appellant has not shown actual prejudice.      Our Supreme

Court has found that the averment that a defendant could not remember his

whereabouts at the time of the crime and could not find witnesses to testify

as to his whereabouts did not show he was prejudiced by the delay. See id.



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      Next, Appellant argues the court erred in failing to require the

Commonwealth to disclose the identity of the CI.9 Appellant concedes that

“[i]n the case at hand, admittedly, other corroboration of the undercover

officer’s   testimony   exists   for   the   November   4th   transaction,   albeit

contradictory.” Appellant’s Brief at 21. Appellant asserts that his defense at

trial was mistaken identity. Id. at 23.

      “Our standard of review of claims that a trial court erred in its

disposition of a request for disclosure of an informant’s identity is confined to

abuse of discretion.” Commonwealth v. Watson, 69 A.3d 605, 607 (Pa.

Super. 2013) (citation omitted). In Watson, one police officer observed the

drug transaction between the defendant and the CI.            Id. at 606.      The

defendant claimed the court erred in denying his request for disclosure of

the identity of the CI because his defense was mistaken identity. Id. at 607.

This Court rejected the defendant’s argument in Watson because “officers

executing the warrant observed him throw multiple vials of crack cocaine

under a parked vehicle in an obvious attempt to avoid arrest.” Id. at 609.

      This Court opined:

            Under Pennsylvania Rule of Criminal Procedure 573, a trial
            court has the discretion to require the Commonwealth to
            reveal the names and addresses of all eyewitnesses,
            including confidential informants, where a defendant
            makes a showing of material need and reasonableness:

9
  On November 16, 2012, Appellant filed a pre-trial motion to disclose the
identity of the CI. Following a hearing, the court denied the motion. See
N.T., 3/21/13, at 81-82.



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          (a) In all court cases, except as otherwise provided
          in Rule 230 (Disclosure of Testimony Before
          Investigating Grand Jury), if the defendant files a
          motion for pretrial discovery, the court may order
          the Commonwealth to allow the defendant’s attorney
          to inspect and copy or photograph any of the
          following requested items, upon a showing that they
          are material to the preparation of the defense, and
          that the request is reasonable:

          (i) the names and addresses of eyewitnesses. . . .

       Pa.R.Crim.P. 573(B)(2)(a)(i).

       The Commonwealth enjoys a qualified privilege to withhold
       the identity of a confidential source. In order to overcome
       this qualified privilege and obtain disclosure of a
       confidential informant’s identity, a defendant must first
       establish, pursuant to Rule 573(B)(2)(a)(i), that the
       information sought is material to the preparation of the
       defense and that the request is reasonable. Only after the
       defendant shows that the identity of the confidential
       informant is material to the defense is the trial court
       required to exercise its discretion to determine whether
       the information should be revealed by balancing relevant
       factors, which are initially weighted toward the
       Commonwealth.

       In striking the proper balance, the court must consider the
       following principles:

          A further limitation on the applicability of the
          privilege arises from the fundamental requirements
          of fairness. Where the disclosure of an informer’s
          identity, or of the contents of his communication, is
          relevant and helpful to the defense of an accused, or
          is essential to a fair determination of a cause, the
          privilege must give way. In these situations[,] the
          trial court may require disclosure and, if the
          Government withholds the information, dismiss the
          action.




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            [N]o fixed rule with respect to disclosure is
            justifiable.   The problem is one that calls for
            balancing the public interest in protecting the flow of
            information against the individual’s right to prepare
            his defense.    Whether a proper balance renders
            nondisclosure erroneous must depend on the
            particular circumstances of each case, taking into
            consideration the crime charged, the possible
            defenses, the possible significance of the informer’s
            testimony, and other relevant factors.

          Commonwealth v. Marsh, [ ] 997 A.2d 318, 321–322
          ([Pa.] 2010).

Id. at 607-08 (some citations omitted).

      The trial court found that the officers involved in the drug buy had the

opportunity to observe Appellant. The court concluded based upon the

evidence, the “likelihood of misidentification is so minimal that the qualified

privilege of the Commonwealth to protect the identity of the CI was not

overcome.” Trial Ct. Op. at 10. We agree no relief is due.

      At trial, Officer Lepore testified that he saw Appellant when he walked

up to the passenger side of the vehicle he was seated in and knocked on the

window.    N.T., 3/25/13, at 17.   Appellant got into the vehicle and Officer

Lepore shook hands with him. Id. at 18. He saw Appellant hand the CI the

“three glassine baggies that contained a white rock-like substance.” Id. at

18-19.     He stated that he was “[o]ne hundred percent positive” that

Appellant was the man he shook hands with on November 4th. Id. at 20.

      Sergeant Moors testified he saw Appellant arrive from his seat in the

passenger side of the undercover vehicle. N.T., 3/22/13, at 37. He was in



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the vehicle with Officer Elifa Soto. Id. He saw Appellant walk up to the van.

Id. at 38.     Appellant was approximately fifteen to twenty feet from the

undercover vehicle.      Id.   He testified that there was no question that

Appellant was “definitely the person who came to the van that night.” Id. at

39. He saw Appellant for “a couple minutes” after he exited the van. Id. at

40.    There was no question whatsoever that the person he saw leave the

van was Appellant. Id.

       Officer Soto saw Appellant walk up to the van on November 4th. Id.

at 150.     Officer Soto identified Appellant as the person he saw without any

doubt.     Id. at 151.   After Appellant left the scene, he met with the CI,

Officer Lepore and Sergeant Moors. Id. He stated “Officer Lepore had the

drugs and handed it over to Sergeant Moors.” Id. at 152.

       Instantly, Officers Soto and Lepore and Sergeant Moors observed

Appellant and positively identified him as the person involved in the drug

buy.     We discern no abuse of discretion by the trial court in denying the

request to disclose the identity of the confidential informant. See Watson,

69 A.3d at 609. As in Watson, we reject Appellant’s claim that his defense

of mistaken identity required disclosure, given the observations of the police

officers. See id. at 609.

       Next, Appellant claims that the court erred in sustaining an objection

when defense counsel asked forensic chemist Carol Sendecki “Why are you

no longer with the Bucks County Crime Lab?”          Appellant’s Brief at 25.



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Appellant avers the evidence was relevant because it was intended “to

ascertain whether her termination of employment at the Bucks County Crime

Lab was potentially related to the handling of evidence . . . .” Id. at 27.

      As a prefatory matter, we consider whether Appellant has waived this

issue. On appeal, Appellant fails to cite to the place in the record where this

claim was preserved before the trial court. See Pa.R.A.P. 2117(c) (requiring

statement of case to specify state of proceedings at which issue sought to be

reviewed on appeal was raised), 2119(e) (requiring same of argument

section of appellate brief); Commonwealth v. Fransen, 42 A.3d 1100,

1106 n.11 (Pa. Super. 2012) (en banc) (“Failing to direct this Court to

specific portions of the record in support of an argument violates Pa.R.A.P.

2119 (c) [and for] that reason alone, we could conclude this issue is

waived.”), appeal denied, 76 A.3d 538 (Pa. 2013). However, we don’t find

waiver on this basis.

      Appellant did not file a post-sentence motion.     See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”). Instantly, however, the certified record does not

reveal whether Appellant was apprised of the need to file post-sentence

motions to preserve issues for appeal.        In Commonwealth v. Malovich,

903 A.2d 1247 (Pa. Super. 2006), this Court opined:

            We will not conclude that [the a]ppellant forwent the
         opportunity to raise issues via post-sentence motions when
         the sentencing court did not tell him he could file such
         motions. Given that [the a]ppellant was unaware of the


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          need to preserve claims in a motion for reconsideration,
          we find that he has not waived those claims on appeal.

             Moreover, we note that the Commonwealth has not
          argued waiver but, instead, has addressed [the
          a]ppellant’s arguments. The Commonwealth’s brief and
          the record give us ample opportunity for meaningful
          judicial review of these claims.

Id. at 1252 (citations omitted).

      Given the absence of evidence that Appellant was advised of the need

to preserve his claims in a post-trial motion, and the fact that the

Commonwealth did not argue waiver, we decline to find the issue waived.

See id.

          Our standard of review is well-established:

            The admission of evidence is a matter vested within
            the sound discretion of the trial court, and such a
            decision shall be reversed only upon a showing that
            the trial court abused its discretion. In determining
            whether evidence should be admitted, the trial court
            must weigh the relevant and probative value of the
            evidence against the prejudicial impact of the
            evidence. Evidence is relevant if it logically tends to
            establish a material fact in the case or tends to
            support a reasonable inference regarding a material
            fact. Although a court may find that evidence is
            relevant, the court may nevertheless conclude that
            such evidence is inadmissible on account of its
            prejudicial impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014), (citation omitted).

      Pennsylvania Rule of Evidence 103 provides in pertinent part:

          (a) Preserving a Claim of Error. A party may claim
          error in a ruling to admit or exclude evidence only:


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                                *     *      *

        (2) if the ruling excludes evidence, a party informs the
        court of its substance by an offer of proof, unless the
        substance was apparent from the context.

Pa.R.E. 103(a)(2).10

     Ms. Sendecki testified that she had worked for the Bucks County Crime

Lab as a forensic chemist between November 17, 2010 and December 22,

2010. N.T., 3/25/13, at 45. Appellant’s argument centers on the following

exchange:

        [Defense counsel]: Ma’am, why are you no longer with the
        Bucks County Crime Lab?

        [Commonwealth]: I’ll object to relevance.

        The Court: Sustained.




10
   We note the rule was rewritten on January 17, 2013.     The prior rule
provided:

        (a) Effect of Erroneous Ruling.       Error may not be
        predicated upon a ruling that admits or excludes evidence
        unless

                                *     *      *

         (2) Offer of Proof. In case the ruling is one excluding
        evidence, the substance of the evidence was made known
        to the court by offer or by motion in limine or was
        apparent from the context within which the evidence was
        offered.

Pa.R.E. 103(a)(2).



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Id. at 57. Defense counsel resumed his cross-examination of the witness,

without an offer of proof. See id.

      The trial court opined:

         This [c]ourt found that any evidence of why Ms. Sendecki
         was no longer at the Bucks County Crime Lab was not
         relevant to the current case. Absent an offer of proof from
         Defense Counsel that Ms. Sendecki’s termination of
         employment at the Bucks County Crime Lab was directly
         related to the handling of evidence, which was not present
         here, such evidence is irrelevant and inadmissible. The
         objection by the Commonwealth was properly sustained.

Trial Ct. Op. at 11. We agree. Appellant does not aver “the substance was

apparent from the context.”     See Pa.R.Evid. 103(a)(2).     We discern no

abuse of discretion. See Antidormi, 84 A.3d at 749.

      Lastly, Appellant argues the trial court abused its discretion in

permitting both laboratory technicians, Ms. Sendecki and Joann Szpanka, to

testify that the substance in question was cocaine when neither rendered an

opinion to a reasonable degree of scientific certainty.11 Appellant’s Brief at

28.   Appellant avers the court erred in admitting the testimony of Szanka

11
   We note Appellant contends “[t]his affected the sufficiency of the evidence
to convict” him. Appellant’s Brief at 28. Although not raised before the trial
court, the sufficiency of the evidence can be raised for the first time on
appeal.    Pa.R.Crim.P. 606(A)(7). Appellant, however, did not raise this
issue in his Pa.R.A.P. 1925(b) statement. “[W]e observe generally that
issues not raised in a Rule 1925(b) statement will be deemed waived for
review.” Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011); see Pa.R.A.P. 1925(b)(4)(vii) (providing “Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). Therefore, we find Appellant has waived the
issue on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Hansley, 24 A.3d at 415.




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because she “should have been qualified and accepted as an expert.”

Appellant’s Brief at 29.

      “The admission of evidence is a matter vested within the sound

discretion of the trial court . . . .” Antidormi, 84 A.3d at 749.

         While an expert need not use “magic words,” the
         foundation of her opinion must still be sturdy. As our
         Supreme Court has emphasized, the expert must base the
         substance of her opinion on a reasonable degree of
         certainty instead of mere speculation. Commonwealth v.
         Spotz,[ ] 756 A.2d 1139, 1150 ([Pa.] 2000) (forensic
         pathologist’s testimony in first-degree murder trial as to
         victim’s manner of death was properly based on
         reasonable     degree   of   medical   certainty,  though
         pathologist did not use those “magic words,” where
         pathologist explained that victim had been shot in neck
         and chest, that amount of hemorrhage surrounding
         gunshot wounds indicated she was shot while she was
         alive, and that minimal hemorrhage surrounding other
         wounds indicated she was run over after she died).

Commonwealth v. Gonzalez,109 A.3d 711, 727 (Pa. Super. 2015)

(emphases added).

      As a prefatory matter, we consider whether Appellant has waived his

claim regarding Ms. Sendecki. In Commonwealth v. Ballard, 80 A.3d 380

(Pa. 2013), our Supreme Court held that appellant waived his claims

regarding the testimony of a witness by failing to object at trial. Id. at 406.

Appellant does not cite to the place in the record where this claim was




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preserved before the trial court. See Pa.R.A.P. 2117(c). Appellant did not

object to her testimony at trial.12

        The trial court opined:

           Ms. Sendecki, a forensic chemist at the Bucks county
           Crime Lab, also testified that the substance in question
           was cocaine.[13] Testimony of Ms. Sendecki’s qualifications
           as a forensic chemist, including her bachelor’s degree in
           chemistry[14] and her almost thirty years’ experience in the
           field,[15] were elicited on cross-examination by Defense
           Counsel. On re-direct examination by the Commonwealth,
           Ms. Sendecki testified that she determined the substance
           to be cocaine. Defense Counsel did not object to the
           witness testifying that the substance was cocaine on re-
           direct examination.     Counsel’s failure to object to the
           testimony at trial constitutes a waiver and Appellant
           cannot raise this issue for the first time on [a]ppeal.

Trial Ct. Op. at 13. We agree.

        Even assuming, arguendo, that the claim was preserved, it is without

merit.    Ms. Sendecki testified regarding the laboratory report she prepared.

N.T., 3/25/13, at 46.      She was “qualified to be an expert witness in the

analysis of drugs.”     Id. at 65.    She concluded that the substance was

cocaine. Id. at 67. An expert need not use “magic words.” See Gonzalez,

109 A.3d at 727.

12
  At the conclusion of Ms. Sendecki’s testimony, the court asked defense
counsel “Anything else . . . ?” and he replied, “No, Your Honor.” N.T.,
3/25/13, at 71.
13
     See N.T., 3/25/13, at 67.
14
     See N.T., 3/25/13, at 51.
15
     See N.T., 3/25/13, at 50.



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      Appellant also contends the trial court erred in permitting Ms.

Szpanka, a forensic analyst at the Bucks County Crime Lab, to testify that

the substance in question was cocaine, without rendering an opinion to a

reasonable degree of scientific certainty. Appellant’s Brief at 28. He claims

“the witness should have been qualified and accepted as an expert.” Id. at

29.   In support of his contention that the court erred in permitting her

testimony without rendering an opinion, Appellant cites Pa.R.Evid. 702. Id.

We find no relief is due.16

      At trial, Ms. Szpanka testified for the Commonwealth. N.T., 3/22/13,

at 82.     On cross-examination, defense counsel asked if she had been

certified as an expert and she stated that she had not. Id. at 116. Counsel

stated he had no further questions.     Id.   The court requested a sidebar

conference and the following exchange took place:

         The Court: Now, as I understand it, your position is you
         are not presenting her as an expert in the field of forensic
         analysis; is that correct?

         [The Commonwealth]: My original intent, yes, Your honor.

         The Court: Then how is it that you intend to go from how
         she went about conducting a test to providing the results?



16
   We note the trial court opined that Ms. Szapanka’s “education and
experience provide the necessary qualifications to be tendered as an expert.
Permitting her to opine that the substance purchased was cocaine without
having her tendered as an expert witness is harmless error, if any.” Trial Ct.
Op. at 13. “We may affirm the trial court on any ground.” Commonwealth
v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003).



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        [The Commonwealth]: Your Honor, this works the way it
        would have if someone were to just plug numbers into a
        calculator. She plugs the drugs into the machines, the
        machines come[ ] out with a result. It’s not an opinion-
        based thing. She doesn’t have to make guesses.

                                   *     *      *

        [Defense Counsel]: But, Your Honor, she’s giving an
        opinion because she writes in the report that this was
        cocaine and what the weight of it was, and that’s an
        opinion. . . .

                                   *     *      *

        The Court: I will allow her to testify as to what the results
        were that were provided by the equipment.

        [Defense Counsel]: Your Honor, can I just have a
        clarification? Does that mean she’s going to be able to
        testify that the substances are, in fact, cocaine?

        The Court: If the machine gives the results that that’s
        what it is, yes.

N.T., 3/22/13, at 117, 118, 119.

     Ms. Szpanka testified, inter alia, as follows, without objection from

defense counsel:

        [The Commonwealth]: Did the analysis that you did . . .
        result in an output of determining what the specimens’
        chemical makeup was?

        A: Yes.

        Q: And on C-8,[17] what was the output chemical?

        A: Cocaine Hydrochloride.

17
   C-8 was described by the witness as a drug envelope containing three
clear Ziploc bags. N.T., 3/22/13, at 104, 112.



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        Q: And did that also determine a measurement of weight?

        A: It did.

        Q: And what was the measured weight?

        A: I believe it was 1.25 grams.

        Q: And was there a similar output on C-7[18] that
        determined what the chemical content of the specimen or
        specimens were?

        A: Yes.

        Q: And what was that output?

        A. Cocaine hydrochloride.

        Q: And on that specimen, was there also a weight
        measure?

        A: Yes.

        Q: What was it?

        A: I believe it was 1.25 grams.

Id. at 120-21.

     Appellant’s sole basis for his claim of trial court error in the admission

of Ms. Szpanka’s testimony is Rule 702.        His reliance on Rule 702 is

unavailing. The rule provides:

        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:


18
  C-7 was also a drug envelope containing little Ziploc bags that had a white
substance in them Id. at 104, 111.



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           (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

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

Pa.R.Evid. 702 (emphasis added).     Rule 702 is not applicable because Ms.

Szpanka did not render an opinion within the purview of the rule.

     We discern no abuse of discretion by the trial court. See Antidormi,

84 A.3d at 749.

     For all of the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/22/2015




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