J-A07019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER SICLARI                        :
                                               :
                       Appellant               :   No. 758 EDA 2018

            Appeal from the Judgment of Sentence November 3, 2017
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0000907-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                           FILED SEPTEMBER 12, 2019

        Appellant Christopher Siclari seeks review of the Judgment of Sentence

following a bench trial and convictions of Driving Under the Influence (“DUI”)

– General Impairment, DUI-High Rate of Alcohol, and Careless Driving.1 He

challenges the denial of his suppression motion, the sufficiency of the

evidence, and the admission of the laboratory blood test results. After careful

review, we conclude that (1) the court did not err in denying the suppression

motion; (2) sufficient evidence supported the Appellant’s convictions; but (3)

the admission of the laboratory’s report through a “surrogate witness” violated

Appellant’s constitutional rights of confrontation.     We, thus, affirm in part,

vacate in part, and remand for resentencing.




____________________________________________


1   75 Pa.C.S. §§ 3802(a)(1), 3802(b) and 3714(a), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      In its February 13, 2018 Order denying post-sentence relief, the trial

court set forth a detailed recitation of the facts of this case, which we

summarize as follows. On January 2, 2017, at approximately 2:00 p.m., the

custodian of the Nazareth Area Middle School called 911 to report that he had

observed, for the previous 20 minutes, a man asleep or passed out in the

driver’s seat of a pickup truck that was parked across several parking spaces

in the school’s parking lot. Officer David Gentile of the Upper Nazareth

Township Police Department responded to the report and drove to the school

to conduct a welfare check. When he arrived, he parked his marked vehicle

15-20 feet behind the pickup truck, which had its brake and reverse lights

activated and its engine running.    Appellant did not respond when Officer

Gentile attempted to rouse him through the truck’s open window.

      As Officer Gentile was returning to his patrol car after radioing for

backup, Appellant’s vehicle rolled back and hit the police vehicle.     Officer

Gentile then returned to the driver’s side of the truck and ordered Appellant

to turn off his vehicle and get out of the car.   Appellant complied, and an

officer placed him in handcuffs.

      In speaking with Appellant, Officer Gentile noted the odor of alcohol; he

also observed an open can of Miller Lite in the cab of Appellant’s vehicle, as

well as a case of beer.   After Appellant performed poorly on field sobriety

tests—losing his balance, counting too slowly, taking too many steps,

mumbling—he told Officer Gentile that he had been drinking at a friend’s

house and did not know how he ended up in the school’s parking lot. Officer

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Gentile detained Appellant for suspicion of driving under the influence (“DUI”)

and transported him to the hospital for a blood test.

      At the hospital, Officer Gentile read the DL-26B form warnings, as

revised in 2016, and Appellant consented to the blood draw, which occurred

approximately one hour and fifteen minutes after Officer Gentile first

encountered Appellant.    Laboratory tests indicated Appellant had a blood

alcohol content (“BAC”) of 0.108%. The Commonwealth charged Appellant

with two counts of DUI and one count of reckless driving.

      Appellant retained counsel who filed an omnibus pre-trial Motion,

including a Motion to Suppress the results of the blood alcohol test. The court

scheduled the Motion for a hearing, but on the day of the hearing, counsel

chose not to pursue the Motion at that time. The court scheduled the matter

for trial several times, but on each occasion, Appellant’s counsel reported

having a conflict shortly before the trial. The court subsequently scheduled

trial for the week of September 21, 2017, to accommodate defense counsel’s

schedule.

      On September 21, 2017, prior to the start of Appellant’s bench trial, the

court held a hearing on the Motion to Suppress, at which the custodian and

Officer Gentile testified regarding the vehicle stop precipitating Appellant’s

detention. The court denied the Motion to Suppress, and Appellant’s bench

trial proceeded.

      At trial, the Commonwealth presented testimony from Nadine Koenig,

the manager and custodian of records of Health Network Laboratories. Over

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Appellant’s objections, she testified regarding the laboratory’s report showing

that Appellant’s blood sample contained a BAC of .108%, although she had

not conducted the testing, prepared the report, or certified its contents.

Appellant’s counsel vigorously cross-examined Ms. Koenig.

        After the Commonwealth rested, Appellant’s counsel indicated that

Appellant’s expert witness was not present in the courthouse and counsel was

unable to contact him by phone.            At no time prior to trial had Appellant

informed the court or the Commonwealth that he intended to present evidence

from an expert. At trial, Appellant did not proffer an expert report, nor did he

state the name of the expert for the record. Appellant’s counsel requested a

continuance, which the court denied. The defense then rested without

submitting evidence.

        The   court   found    Appellant       guilty   and   ordered   a   pre-sentence

investigation. Appellant retained new counsel.

        On November 3, 2017, the court sentenced Appellant as a second DUI

offender to, inter alia, a term of 45 days to 6 months’ incarceration2 and a

$25.00 fine plus costs on the careless driving conviction. Appellant filed a

Post-Sentence Motion and a Supplemental Post-Sentence Motion, which the

court denied on February 13, 2018. See Order and Statement of Reasons,

filed Feb. 13, 2018.




____________________________________________


2   The DUI convictions merged for purposes of sentencing.

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      Appellant timely appealed. Appellant filed an ordered Pa.R.A.P. 1925(b)

Statement; the trial court filed an Opinion pursuant to Rule 1925(a).

      Appellant presents the following Statement of Questions Presented:

      1. Where the Commonwealth’s evidence at the Suppression
      Hearing fell short of establishing probable cause that Appellant
      was driving under the influence, did the lower [c]ourt err in not
      suppressing the blood evidence?

      2. Where the Commonwealth did not present evidence as to when
      Appellant last drove, was the evidence insufficient as a matter of
      law to prove convictions under 75 Pa.C.S. § 3802(a)(1) which is
      an “at the time of driving” offense, or under § 3802(b), which
      requires the blood to be taken within two hours of driving? Further
      was the evidence insufficient as a matter of law to prove §
      3802(a)(1) where the BAC was barely .10%, and there was no
      evidence of erratic driving, blood shot eyes, lack of balance, strong
      odor of alcohol or any of the other typical indicia of unsafe driving?

      3. Where the Commonwealth merely presented a surrogate
      witness and not the “analyst” required by Commonwealth v.
      Yohe, 79 A.3d 520 [ ] (Pa. 2013), to testify as to the blood alcohol
      testing and analysis, did the lower [c]ourt deny the right of
      confrontation when the [c]ourt overruled trial [c]ounsel’s
      objection to this testimony?

      4. Where Appellant’s expert toxicologist was unable to either
      appear or be contacted by defense [c]ounsel and had expertise
      which could have contradicted the Commonwealth’s evidence
      and/or would have been able to present evidence reflecting that
      the Commonwealth blood alcohol evidence was not reliable and/or
      was below .10%, did the lower [c]ourt err in not granting a new
      trial?

Appellant’s Brief at 4-5.

      Suppression Motion

      In his first issue, Appellant contends that “[t]he police lacked probable

cause to place [Appellant] under arrest for suspicion of driving under the


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influence based on the evidence presented at the Suppression Hearing. This

evidence fell short of establishing probable cause, and this Court should hold

that the evidence should have been suppressed[.]” Appellant’s Brief at 17.

He asserts that because “[t]here was no testimony presented at that hearing

that he was swaying, slurring his words, smelling of alcohol, any evidence he

was unable to drive safely or any other indicia of impaired driving,” the

Commonwealth’s “presentation fell woefully short of that required to

demonstrate probable cause.      Accordingly, the evidence should have been

suppressed[.]” Id. at 23. We conclude Appellant waived this issue by failing

to preserve it in his Motion to Suppress.

      “Although the burden in suppression matters is on the Commonwealth

to establish ‘that the challenged evidence was not obtained in violation of the

defendant's rights,’ Pa.R.Crim.P. 581(D), that burden is triggered only when

the defendant ‘state[s] specifically and with particularity the evidence sought

to be suppressed, the grounds for suppression, and the facts and events in

support thereof.’” Commonwealth v. Freeman, 128 A.3d 1231, 1241–42

(Pa. Super. 2015) (quoting Commonwealth v. McDonald, 881 A.2d 858,

860 (Pa. Super. 2005). Thus, “[w]hen a defendant's motion to suppress does

not assert specifically the grounds for suppression, he or she cannot later

complain that the Commonwealth failed to address a particular theory never

expressed in that     motion.”   Freeman, supra       at 1242.      See also

Commonwealth v. Quaid, 871 A.2d 246, 249 (Pa. Super. 2005) (“[W]hen a


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motion to suppress is not specific in asserting the evidence believed to have

been unlawfully obtained and/or the basis for the unlawfulness, the defendant

cannot complain if the Commonwealth fails to address the legality of the

evidence the defendant wishes to contest.”).

       In his Suppression Motion, after noting only that he was arrested for

suspicion of DUI after parking in the parking lot, Appellant baldly asserted that

his initial arrest for suspicion of DUI was made without probable cause or

reasonable grounds to believe he was DUI. See Motion to Suppress at ¶¶ 14,

17. He then sought suppression only of the blood test results based on a

Birchfield claim.3 See Motion to Suppress, filed 6/8/17, at ¶¶ 17-19, 27-32.

Nothing in his Motion to Suppress mentioned the circumstances leading up to

his arrest for DUI, and the only evidence he sought to suppress in the Motion

was the blood test result.          Accordingly, we conclude Appellant failed to

preserve this issue in his Motion to Suppress and it is, thus, waived.

       Sufficiency of the Evidence supporting DUI convictions under 75
       Pa.C.S. § Section 3802(a)(1) and (b)

       Appellant next contends that “[t]here is an absolute dearth of evidence

as to when [he] drove although we cannot deny that he did so” and, thus,

“the Commonwealth did not prove that [he] drove within [the] two-hour



____________________________________________


3Birchfield v. N. Dakota, 136 S.Ct. 2160 (U.S. 2016) (holding tests results
of a blood sample obtained under threat of enhanced sentencing for refusal to
consent to blood test are inadmissible).


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window of time [provided in 75 Pa.C.S. § 3802(b)], except for the involuntary

act [after] being awakened by the Officer after he was parked in the parking

lot.” Appellant’s Brief at 25-26. He, thus, contends that the Commonwealth

could not prove that he had a blood alcohol content over .10% within two

hours of last driving (§ 3802(b)) or was under the influence of alcohol so as

to be incapable of safe driving at the time he pulled into the school parking lot

(3802(a)(1)[)].” Id. at 23-24.4

       Our standard of review applicable to challenges to the sufficiency of

evidence is well settled. “Viewing the evidence in the light most favorable to



____________________________________________


4 Appellant also summarily asserts that because there was “no evidence of [a]
volitional act and no evidence that [Appellant] had voluntarily driven the
vehicle after being awakened,” the conviction for careless driving pursuant to
Section 3714 is based “on an improper footing.” Id. at 25-26. That is the
sum and substance of his argument challenging the sufficiency of the evidence
supporting his careless driving conviction. He cites no supporting case law
and fails to develop his argument. “The Rules of Appellate Procedure state
unequivocally that each question an appellant raises is to be supported by
discussion and analysis of pertinent authority. Failure to do so constitutes
waiver of the claim.” Giant Food Stores, LLC v. THF Silver Spring Dev.,
L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (citations omitted). See Pa.R.A.P.
2101 (conformance with briefing rule required); 2111 (briefing requirements);
2119 (requiring that a brief has, among other things, argument with citation
to authorities and reference to the record). As this Court has made clear, we
“will not act as counsel and will not develop arguments on behalf of an
appellant.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)
(citation omitted). Where defects in a brief “impede our ability to conduct
meaningful appellate review, we may dismiss the appeal entirely or find
certain issues to be waived.” Id. (citations omitted). Because of Appellant’s
failure to develop his careless driving challenge, we are unable to provide
meaningful review. The challenge is, thus, waived.



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the Commonwealth as the verdict winner, and taking all reasonable inferences

in favor of the Commonwealth, the reviewing court must determine whether

the evidence supports the fact-finder's determination of all of the elements of

the crime beyond a reasonable doubt.” Commonwealth v. Hall, 830 A.2d

537, 541–42 (Pa. 2003).         A conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa.

Super. 2014). In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for that of the fact-finder. Id.

      Further, “[t]he facts and circumstances proved must, in order to warrant

a conviction, be such as to establish the guilt of the defendant, not necessarily

beyond a moral certainty, nor as being absolutely incompatible with his

innocence, but at least beyond a reasonable doubt.” In Interest of J.B., 189

A.3d 390, 408 (Pa. 2018) (citation omitted).

      The court convicted Appellant of DUI pursuant to Section 3802(a)(1)

and (b), which provide:

      (a) General impairment.—

            (1) An individual may not drive, operate or be in actual
            physical control of the movement of a vehicle after imbibing
            a sufficient amount of alcohol such that the individual is
            rendered incapable of safely driving, operating or being in
            actual physical control of the movement of the vehicle.

                                     ***


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     (b) High rate of alcohol.--An individual may not drive, operate
     or be in actual physical control of the movement of a vehicle after
     imbibing a sufficient amount of alcohol such that the alcohol
     concentration in the individual's blood or breath is at least 0.10%
     but less than 0.16% within two hours after the individual has
     driven, operated or been in actual physical control of the
     movement of the vehicle.

75 Pa.C.S. § 3802.

     To establish that one is incapable of safe driving ... the
     Commonwealth must prove that alcohol has substantially
     impaired the normal mental and physical faculties required to
     operate the vehicle safely; “substantial impairment” means a
     diminution or enfeeblement in the ability to exercise judgment, to
     deliberate or to react prudently to changing circumstances and
     conditions. The meaning of substantial impairment is not limited
     to some extreme condition of disability. Section 3802(a)(1), like
     its predecessor, is a general provision and provides no specific
     restraint upon the Commonwealth in the manner in which it may
     prove that an accused operated a vehicle under the influence of
     alcohol to a degree which rendered him incapable of safe driving.

Commonwealth v. Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006) (citations

and internal quotation marks omitted).

      “The types of evidence that the Commonwealth may proffer in a

subsection 3802(a)(1) prosecution include[,] but are not limited to . . . the

offender's actions and behavior, including manner of driving[;] … demeanor,

including toward the investigating officer; physical appearance, particularly

bloodshot eyes and other physical signs of intoxication; odor of alcohol, and

slurred speech.” Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

     Appellant concedes he drove the car into the parking lot. At trial, Officer

Gentile testified that Appellant had stopped his vehicle perpendicular to the

parking spaces in the school lot, left the engine running in reverse gear with

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his foot on the brake, and was unresponsive as he sat slumped over his

steering wheel. After Appellant’s vehicle rolled backwards into the patrol car,

Appellant got out of the driver’s seat exuding an odor of alcohol.       Officer

Gentile then saw an open can of beer in the car, along with a case of beer. In

addition, Officer Gentile testified that Appellant performed poorly on his field

sobriety tests and admitted to Officer Gentile that he had been drinking at a

friend’s house and did not know how he got to the school parking lot. The

officer testified that he transported Appellant to the hospital where the

phlebotomist drew Appellant’s blood within an hour and fifteen minutes of the

officer’s initial encounter with Appellant.

       The totality of this evidence and all reasonable inferences derived

therefrom, viewed in the light most favorable to the Commonwealth as the

verdict winner, is sufficient to show beyond a reasonable doubt that Appellant

was incapable of safe driving due to the consumption of alcohol when he was

in actual physical control of the movement of the vehicle. Accordingly,

Appellant’s challenge to the sufficiency of the evidence garners no relief.5




____________________________________________


5 Appellant’s sufficiency challenge is primarily based on an argument that the
Commonwealth did not present certain evidence, i.e., when Appellant pulled
into the parking lot, “how full [the opened can of beer in the car] was, when
it was drunk, how cold it was or any other indicia of when it could have been
drunk,” and the fact that “the Commonwealth presented no evidence as to
how drinking that much beer may have affected the BAC.” Id. at 28. Our
standard of review requires us to consider whether the evidence that was
presented supports the convictions.

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      Confrontation Clause-BAC Report

      Appellant next asserts that the court violated his Sixth Amendment right

to confront witnesses by admitting the toxicology report through the

testimony of Nadine Koenig, the manager of the blood-testing laboratory that

generated the report.    He contends that Ms. Koenig was an impermissible

“surrogate witness” because she was neither the lab technician who performed

the blood test nor the scientist who certified the test results. See Appellant’s

Brief at 34. Accordingly, pursuant to Commonwealth v. Yohe, 79 A.3d 520

(Pa. 2013), Bullcoming v. New Mexico, 564 U.S. 647 (2011), and

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Appellant asserts,

the admission of the laboratory report violated his constitutional right to

confront the witnesses against him. We agree.

      “Whether the admission of the [t]oxicology [r]eport violated an

[a]ppellant’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.”

Yohe, supra at 530.

      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 be

confronted with the witnesses against him . . . .” U.S. Const. Amend. VI. The

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

cross-examination. Yohe, supra, at 530-31 (Pa. 2013) (citations omitted).


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Laboratory reports introduced at trial to establish a defendant’s blood alcohol

content are “testimonial” for purposes of the Confrontation Clause, thus

requiring a witness competent to testify to the results in order to comport with

the Sixth Amendment.     Id. at 533-34 (reviewing Melendez–Diaz, supra,

and Commonwealth v. Barton–Martin, 5 A.3d 363 (Pa.Super.2010)).

      In DUI cases, the witness considered competent to testify regarding a

blood analysis report is the analyst who certified the BAC level results or the

laboratory technician who conducted the tests.      See Yohe, supra at 527

(citing Bullcoming, 131 S.Ct. at 2713 (2011) (holding “the analysts who write

reports that the prosecution introduces must be made available for

confrontation even if they possess “the scientific acumen of Mme. Curie and

the veracity of Mother Teresa.”) (citation omitted)). ”[S]urrogate testimony …

does not meet the constitutional requirement. The accused’s right is to be

confronted with the analyst who made the certification, unless that analyst is

unavailable at trial, and the accused had an opportunity, pretrial, to cross-

examine that particular scientist.” Bullcoming, supra at 2710.

      In   Yohe,   supra,   the   Pennsylvania    Supreme    Court   found   no

confrontation clause violation where the laboratory’s forensic toxicologist, who

directly supervised the lab technicians, testified regarding the report

containing BAC results because he was the individual who certified the results.

      Here, Ms. Koenig testified that she is the manager of the laboratory, but

she did not prepare the report or certify the results. She described for the


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court the protocol used by her laboratory in analyzing blood samples. She

stated that the laboratory uses both gas chromatography and enzymatic

processes to test blood samples, prints out the information, and the

technologist then reviews all of the data and prepares the reports that the

analyst then reviews and certifies. N.T., 9/21/17, at 12. Ms. Koenig testified

that, “in preparation for [Appellant’s attorney] when I served [sic] the paper,” 6

she reviewed the raw data used to compile the report but stated that she did

not “make any analysis or certification of that data [herself].”      Id. at 10.

Rather, she testified: “That form is correct and there is no problems [sic].”

Id.

       Ms. Koenig also informed the court of the names of both the laboratory

technician who performed the test and the analyst who certified the results.

The Commonwealth presented no evidence that those individuals were

unavailable to testify at trial and that Appellant had had a prior opportunity to

cross-examine them.

       We agree with Appellant that, unlike the witness in Yohe, Ms. Koenig

was a “surrogate witness:” notwithstanding her contention that she reviewed

the raw data, she did not prepare the report or certify the results. Rather,

she reviewed the data to ascertain that the form of the report was accurate.

Accordingly, pursuant to Melendez-Diaz and Bullcoming, supra, the


____________________________________________


6Ms. Koenig testified that as manager of the laboratory, she is considered the
custodian of records. N.T., 9/21/17 at 8.

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admission of the report showing Appellant’s BAC level of 0.10% through the

testimony of an individual who did not prepare the report or certify the results

violated Appellant’s constitutional right to confrontation.7

       The Commonwealth urges this Court to conclude that the trial court’s

error was harmless.        We disagree.        As noted above, while the evidence

sufficiently established that Appellant was generally impaired to support his

conviction under 75 Pa.C.S. § 3802(a), the laboratory report was the pivotal

piece of evidence showing that Appellant’s BAC level fell within the range of

defining DUI – High Rate of Alcohol in 75 Pa.C.S. § 3802(b), supra.

Accordingly, the Commonwealth was required to call a competent witness, as

defined in Bullcoming and Melendez-Diaz, supra, to testify as to Appellant’s

BAC level, i.e., the analyst who actually certified the BAC level results or the

laboratory technician who conducted the tests. The Commonwealth’s failure

to do so rendered the admission of the laboratory report a constitutional




____________________________________________


7 The trial court concluded that because Ms. Koenig had 28 years’ experience
with the laboratory, had once been a certifying analyst herself, and had
knowledge of the procedures and processes used to determine a patient’s
blood alcohol content, and because Appellant’s counsel had vigorously cross-
examined her, her testimony was admissible to support the admission of the
BAC report. See Tr. Ct. Op., Feb. 13, 2018, at 16. Neither the Pennsylvania
Supreme Court nor the United States Supreme Court has sanctioned such an
extension of Melendez-Diaz and Bullcoming.



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violation. Melendez-Diaz, supra; Yohe, supra. We, thus, vacate Appellant’s

conviction under Section 3802(b) (High Rate of Alcohol).8

       Our disposition today leaves intact the convictions for DUI-General

Impairment and Careless Driving. Because we vacate the DUI-High Rate of

Alcohol, our disposition may upset the sentencing scheme. Accordingly, we

vacate the Judgment of Sentence and remand to the trial court for

resentencing.

       Convictions under 75 Pa.C.S. § 3802(a)(1) and 3714(a) affirmed;

conviction under 75 Pa.C.S. § 3802(b) vacated; case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/19




____________________________________________


8 Based on our disposition, we need not address Appellant’s final issue
challenging the court’s denial of a new trial based on his expert’s report raising
“significant questions” about the laboratory’s handling and analysis of
Appellant’s blood sample and opining that the blood alcohol testing was
unreliable. Appellant’s Brief at 42, 44.

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