J. S71044/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
CARL DWAYNE BRIGGS,                         :
                                            :
                            Appellant       :     No. 881 MDA 2014

           Appeal from the Judgment of Sentence November 22, 2013
                In the Court of Common Pleas of Mifflin County
               Criminal Division No(s).: CP-44-CR-0000331-2012

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 23, 2015

        Appellant, Carl Dwayne Briggs, appeals from the judgment of sentence

entered in the Mifflin County Court of Common Pleas following his jury

conviction of driving under the influence (“DUI”)—general impairment,1

second offense, homicide by vehicle while driving under the influence,2 and

related offenses. Appellant (1) challenges the sufficiency and weight of the

evidence and (2) argues his rights under the Confrontation Clause 3 were



*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3735(a).
3
 See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.”).
J. S71044/14


violated when the court allowed a laboratory supervisor, who did not draw or

test Appellant’s blood, to testify about his blood alcohol content (“BAC”) test

result. We affirm.

        The trial court summarized the facts as follows. On the afternoon of

October 8, 2011, Appellant was at the home of his friends, a husband and

wife couple, and drank four twelve-ounce cans of beer over “several hours.”

Trial Ct. Op., 6/17/14, at 2.         He left “around 3:30 or 4:00 p.m.”    Id.

Witnesses Barry and Delores George were in their vehicle on Route 522 in

McVeytown4 when Appellant’s car passed them.          “Mr. George testified he

was going slightly less than the speed limit [of] 55 miles per hour when

Appellant passed him [by going into] the opposite lane of travel.” Id. at 2-

3.

        The victims in this case, Judy and Bruce Kauffman, were on a

motorcycle traveling toward Appellant in the same lane of travel.           Mr.

George     testified “Appellant   never    took evasive   action to   avoid the

motorcycle.” Id. at 3. The two vehicles collided and the Kauffmans “died

right away.”5 Both Mr. and Mrs. George “testified that the sun was bright

and in their eyes.” Id.

        Doug Boozel, captain of the fire company, was off duty and a mile and


4
    See N.T. Trial, 9/10/13, at 74.
5
    Id. at 32 (Commonwealth’s opening argument).




                                        -2-
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half to two miles away when he received a page about the accident. N.T. at

93. He arrived at the accident scene within approximately two minutes of

the dispatch. Id. at 94. Boozel testified he

           briefly spoke with Appellant immediately after the
           accident[ and] recalled smelling an odor of alcohol on
           Appellant’s person and Appellant’s eyes were blood shot
           and glassy. Nick Price, EMT, who was at the scene shortly
           after the accident, testified that he smelled an odor of
           alcohol on Appellant’s person. He testified that Appellant
           had a diabetic episode in the ambulance immediately
           following the accident. Trooper [Stephen] Griffith, [who]
           saw Appellant in the ambulance shortly after the
           accident[,] smelled an odor of alcohol on Appellant’s
           person and Appellant was talking slowly. Appellant told
           Trooper Griffith that he had been drinking at his friend’s
           house earlier.

              [Adrienne] Strouser testified she was employed by
           Lewistown Hospital as a medical technician and drew
           Appellant’s blood at 6:07 p.m. on the day of the accident.
           The blood test indicated a .077% blood-alcohol content.
           Brian Seay, forensic toxicology supervisor at Quest
           Diagnostics, testified that Appellant’s laboratory report[,
           introduced at trial as Exhibit C-9,] indicated a .079%
           blood-alcohol level.[6] J. Ward Donovan, board certified
           toxicologist, provided expert testimony that he believed
           Appellant’s blood-alcohol level at the time of the accident
           was most likely between .1002% and .1084%.                Dr.
           Donovan also testified that many individuals cannot
           actually tell when someone is impaired to the extent that
           [he is] incapable of safe driving and that a blood-alcohol
           level in the range of .09% to .11% would significantly
           impair someone’s ability to safely drive a motor vehicle.

              Appellant testified that he has been a diabetic since he
           was nine (9) and that as a result of a medication change
           just weeks prior to the accident he had some significant
           diabetic episodes. Appellant testified that on the day of

6
    Seay is the witness whose testimony Appellant challenges in this appeal.



                                       -3-
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         the accident he had four (4) Coors Light beers during his
         visit with [his friends]. Appellant left [their] residence to
         return home. Appellant testified that he remembers the
         events [from] leaving [his friends’] residence [to]
         stop[ping] at the red light in McVeytown [and then] no
         recollection of events . . . until he was in the parking lot of
         the Lewistown Hospital just prior to being treated in the
         emergency room. He testified, just as in other diabetic
         episodes he has had over the years, he had no memory of
         any of the events that occurred between the red light in
         McVeytown and the parking lot of the Lewistown Hospital.

            Trooper [Richard] Leight testified that he spoke with
         Appellant at the Lewistown Hospital and that Appellant told
         him he thought he saw the motorcycle in the distance, but
         then as he was passing, the motorcycle was right in front
         of him. Also, he stated he tried to swerve to the left and
         that he believes that the motorcycle did the same and
         swerved in the same direction.

         . . . [T]here was no sign of brake marks before the
         accident scene or any evidence that Appellant took any
         evasive action to avoid a head on collision with the
         oncoming motorcycle despite his statement to Trooper
         Leight that he saw the motorcycle in the distance.

Trial Ct. Op. at 3-4.

      The case proceeded to a three-day jury trial on September 10, 2013.

As stated above, Appellant admitted he drank four cans of beer that

afternoon, but argued he was not intoxicated or impaired, and instead the

accident was caused by (1) a diabetic episode, in which he normally

becomes “zombie-like” or “unresponsive,” or (2) the sun and glare. N.T. at

46-47 (Appellant’s opening argument).

      The jury found Appellant guilty of DUI—general impairment, second

offense, and two counts each of homicide by vehicle while DUI, homicide by



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vehicle,7 and involuntary manslaughter.8     The court also found Appellant

guilty of the summary offense of limitations on overtaking on the left. 9 On

November 22, 2013, the court imposed an aggregate sentence of six to

twelve years’ imprisonment.10

        Appellant filed a timely post-sentence motion.      The court held a

hearing on April 17, 2014, and denied the motion on April 28th. 11 Appellant

took this timely appeal and complied with the court’s order to file a Pa.R.A.P.

7
    75 Pa.C.S. § 3732(a).
8
    18 Pa.C.S. § 2504(a).
9
    75 Pa.C.S. § 3305.
10
  The sentences are as follows: (1) for two counts of homicide by vehicle by
DUI—two consecutive sentences of three to six years’ imprisonment; (2) for
two counts of homicide by vehicle—two concurrent sentences of one to two
years’ imprisonment; and (3) for two counts of involuntary manslaughter—
two concurrent sentences of one to two years’ imprisonment. See 75
Pa.C.S. § 3735(a) (providing mandatory minimum sentence of three years’
imprisonment for homicide by vehicle by DUI and requiring consecutive
three-year term of imprisonment for each victim); Bell v. Commonwealth,
96 A.3d 1005, 1017 (Pa. 2014) (stating homicide by vehicle and homicide by
vehicle while DUI do not merge for sentencing purposes).
11
    Pursuant to Pennsylvania Rule of Criminal Procedure 720(B)(3)(a), the
trial court had 120 days from the December 2, 2013 filing of the motion—or
until April 1, 2014—to rule on it, or the motion would be denied by operation
of law. See Pa.R.Crim.P. 720(B)(3)(a). On February 27, 2014, Appellant
filed a motion to enlarge the time for the trial court to decide the post-
sentence motion, averring he needed time to obtain the funds to pay for a
trial transcript. See Pa.R.Crim.P. 720(B)(3)(b) (providing court may grant,
upon timely defense motion and for good cause shown, one thirty-day
extension for decision on post-sentence motion). The trial court granted the
enlargement of time, thus extending the deadline for a decision to May 1,
2014. As stated above, the motion was denied on April 28th.




                                     -5-
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1925(b) statement of matters complained of on appeal.        He presents two

issues for our review: the sufficiency and weight of the evidence and the trial

court’s admission of Brian Seay’s testimony.

      In his first and second issue, Appellant challenges the sufficiency, and

in the alternative, the weight, of the evidence for homicide by vehicle while

DUI.12   Specifically, he avers the evidence was insufficient to establish he

committed DUI or was intoxicated or impaired by alcohol.       In support, he

cites the following trial testimony: (1) his friend’s wife, whom he was

visiting, stated Appellant did not appear intoxicated while he was at her

house; (2) Price, the responding EMT, testified Appellant was alert, oriented,

and articulate and did not exhibit any intoxicated characteristics, Price gave

Appellant fifteen grams of glucose at 5:09 and again at 5:15 p.m., and that

while in the ambulance, Appellant suffered a diabetic episode; (3) Dr.

Theodore Hetrick, the emergency room doctor who treated Appellant,

testified he did not see any signs that Appellant was impaired by alcohol and

concluded he suffered a hypoglycemic episode; (4) Dr. Lawrence Guzzardi,

Appellant’s expert toxicologist witness, testified “clinical observations are

probably much better than blood-alcohol tests taken a period of time after

an accident especially when made by a doctor, such as Dr. Hetrick, an EMT

such as Nick Price, a paramedic, with an emergency doctor being the best


12
   Appellant has preserved a weight of the evidence claim, as he raised it in
his post-sentence motion. See Pa.R.Crim.P. 607(A)(3).



                                     -6-
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individual   [sic],”   “the   data   was    poor   for   attempting   to   determine

[Appellant’s] blood-alcohol level at the time of the accident,” and “the most

likely cause of the accident was hypoglycemia along with some sort of

diabetic inattention,” Appellant’s Brief at 53-54; and (5) Appellant’s mother

and sister both testified he previously had eye surgery which caused him to

“always [have] bloodshot eyes.”13           Id. at 57.    Appellant concludes two

“equally reasonable and mutually inconsistent inferences could be drawn

[and] the factfinder should not have been permitted to guess which

inference it chose to adopt, especially when one . . . of the two . . . guesses

resulted in depriving [Appellant] of his liberty.” Id. at 58. We find no relief

is due.

      Preliminarily, we find Appellant’s arguments go to the weight of the

evidence, and not the sufficiency. Appellant himself cites the evidence that

he drank four cans of beer on the afternoon of the accident and that two

BAC tests yielded results of 0.077% and 0.079%. Id. at 5, 58. Indeed, he

argues two “equally reasonable” inferences could be drawn. Id. at 58; see

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (stating

claim that verdict is contrary to weight of evidence concedes there is

sufficient evidence to sustain verdict).

      In considering Appellant’s weight of the evidence claim, we are guided


13
   In support of his argument, Appellant extensively cites fifteen witnesses’
testimony, including his own. Appellant’s Brief at 46-58.



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by the following principles.

              A claim alleging the verdict was against the weight of
           the evidence is addressed to the discretion of the trial
           court. Accordingly, an appellate court reviews the exercise
           of the trial court’s discretion; it does not answer for itself
           whether the verdict was against the weight of the
           evidence. It is well settled that the [fact-finder] is free to
           believe all, part, or none of the evidence and to determine
           the credibility of the witnesses, and a new trial based on a
           weight of the evidence claim is only warranted where the
           [factfinder’s] verdict is so contrary to the evidence that it
           shocks one’s sense of justice. In determining whether this
           standard has been met, appellate review is limited to
           whether the trial judge’s discretion was properly exercised,
           and relief will only be granted where the facts and
           inferences of record disclose a palpable abuse of
           discretion.

Landis, 89 A.3d at 699 (citation omitted).

           [B]ecause the trial judge has had the opportunity to hear
           and see the evidence presented, an appellate court will
           give the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial court’s
           determination that the verdict is against the weight of the
           evidence. One of the least assailable reasons for granting
           or denying a new trial is the lower court’s conviction that
           the verdict was or was not against the weight of the
           evidence and that a new trial should be granted in the
           interest of justice.

Id. (citation omitted).

      Appellant was convicted under the following subsection of the DUI

statute:

              (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,


                                       -8-
J. S71044/14


           operating or being in actual physical control of the
           movement of the vehicle.

See 75 Pa.C.S. § 3802(a)(1). “To prove homicide by vehicle while DUI, the

evidence must show that the accused unintentionally caused the death of

another person as the result of driving in violation of section 3802.     75

Pa.C.S. § 3735.” Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super.

2013), appeal denied, 81 A.3d 75 (Pa. 2013).

     As stated above, Appellant contends “two . . . equally reasonable and

mutually inconsistent inferences could be drawn from the same set of

circumstances.” Appellant’s Brief at 58. We disagree with this premise.

     The principle cited by Appellant was announced by the Pennsylvania

Supreme Court in Commonwealth v. Woong Knee New, 47 A.2d 450 (Pa.

1946) (“New”).

        In [New], the conviction was based entirely on evidence
        which placed defendant with the victim at the victim’s
        home shortly before the victim was there murdered. There
        was, however, no evidence which tended to prove that the
        defendant had committed the crime or which cast doubt on
        the equally likely possibility that an unknown assailant had
        killed the victim after the defendant had left his company.
        In reversing the conviction [the Court] noted that:

           When two equally reasonable and mutually
           inconsistent inferences can be drawn from the same
           set of circumstances, a jury must not be permitted
           to guess which inference it will adopt, especially
           when one of the two guesses may result in depriving
           a defendant of his life or his liberty.” [New, 47 A.2d
           at 468.]

Commonwealth v. Hubbard, 372 A.2d 687, 691-92 (Pa. 1977).                 In



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support of his argument, Appellant cites Hubbard and Commonwealth v.

Tribble, 467 A.2d 1130 (Pa. 1983).14

     In Hubbard, the defendant argued the evidence was insufficient to

establish murder in the second degree.       Hubbard, 372 A.2d at 690. The

Pennsylvania Supreme Court disagreed, distinguishing the case from New:

        This case is not [New. T]he evidence tended to show that
        the victim’s body was deposited [in a cornfield] after the
        strangulation occurred. Thus the murderer would likely be
        a person whose presence in the cornfield at some relevant
        time could be established. Despite repeated denials, [the
        defendant] was placed in that cornfield, at the very point
        where the body was found. The finding of a clear print of
        his boot-heel underneath the victim’s body would indicate
        that [the defendant] had stood on that spot shortly before
        the body was deposited. That the victim was last seen
        alive boarding an automobile which matched the
        description of a car owned by [the defendant], at the
        beckoning of a man with whom the victim was apparently
        familiar, permits an inference that [the defendant] was the
        driver of that vehicle. Tire marks from this vehicle were
        found in the cornfield and were made at the relevant time.
        We cannot say that the jury acted unreasonably in
        concluding that this combination of circumstances proved
        defendant’s guilt beyond a reasonable doubt.

Id. at 692.

     In Tribble, the defendant was fired by his employer on April 17, 1980.

Tribble, 467 A.2d at 1131. The defendant “returned to the job site some


14
   Appellant also cites Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
However, unlike his citations for Hubbard and Tribble, he provides no
pinpoint citation, and our review of Grant reveals no discussion pertaining to
mutually inconsistent references arising from the same facts. See Grant,
813 A.2d at 738 (announcing general rule that defendant should wait until
collateral review to raise claims of ineffective assistance of trial counsel).



                                    - 10 -
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time in June of 1980 to inquire about the possibility of being rehired.” Id.

On June 19, 1980, several trucks owned by the employer were broken into;

“hand and power tools were missing from” one truck and tools were moved

from another truck to two others.     Id.    “The trucks had been locked the

night before the break-in and secured behind a high chain link fence.” Id.

The defendant’s fingerprints were found on “the driver-side door button of”

one truck and “the driver-side wing window of” another. Id. He was found

guilty at a jury trial of theft of movable property.15 Id. at 1130. On appeal,

the Pennsylvania Supreme Court reversed, holding:

            While it is a reasonable inference that [the defendant’s]
         fingerprints were impressed on June 18th or 19th, an
         equally reasonable inference may also be drawn that [his]
         fingerprints were impressed prior to the time of the break-
         in, since [the defendant] was in frequent physical contact
         with the trucks when he worked [there] only two months
         prior to the break-in and/or when he returned to the site in
         June only days prior to the break-in. Furthermore, there is
         no evidence that these trucks were used frequently; a fact
         which, if established, would diminish the possibility that
         the prints were old.

Id. at 1131.

     In the instant appeal, Appellant misconstrues the phrase “[w]hen two

equally reasonable and mutually inconsistent inferences can be drawn from

the same set of circumstances.”     See Hubbard, 372 A.2d at 692 (citing

New, 47A.2d at 468).       In New and Tribble, the same set of facts


15
  See 18 Pa.C.S. § 3921(a) (theft by unlawful taking or disposition/movable
property).



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supported two equally reasonably inferences.      In New, evidence that the

defendant was at the victim’s home equally supported findings that he killed

the victim and he was merely present and left before someone else arrived

and killed the victim. Hubbard, 372 A.2d at 691-92 (citing New, 47 A.2d

at 468).   In Tribble, the presence of the defendant’s fingerprints equally

inferred the fingerprints were made on the night of the break-in and

previously when he was employed there.       Tribble, 467 A.2d at 1131.     In

Hubbard, in which the Supreme Court distinguished New, the defendant

denied he was in the cornfield. Hubbard, 372 A.2d at 692.

      We find the instant case akin to Hubbard.           The Commonwealth

presented evidence that tended to show Appellant was impaired by alcohol

at the time of the accident. Appellant, meanwhile, presented evidence that

he instead was suffering from a diabetic episode. Accordingly, the principle

in New does not apply, as the two inferences—alcohol intoxication and

diabetic episode—did not arise from “the same set of circumstances.” See

Hubbard, 372 A.2d at 692.          Instead, the two inferences arose from

competing evidence presented by the parties at trial. Appellant’s rationale—

that the jury “should not have been permitted to guess which inference it

chose to adopt”—would require acquittal whenever a defendant advances an

alternative theory of the case. This was not the holding announced in New.

Instead, in the instant matter, the jury was free to believe all, part, or none

of the evidence presented by both parties, and its finding that Appellant



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committed DUI is not so contrary to the evidence that it shocks one’s sense

of justice. See Landis, 89 A.3d at 699. We therefore hold the trial court

did not abuse its discretion in denying Appellant’s weight of the evidence

claim in his post-sentence motion. See id.

      Appellant’s third claim on appeal is that the court erred in allowing

Brian Seay, the supervisor of forensic toxicology at Quest Diagnostics, to

testify about the blood test results obtained in his laboratory. We note, as

did the trial court, that at the time of trial, only the Superior Court opinion in

Yohe had been issued. See Commonwealth v. Yohe, 39 A.3d 381 (Pa.

Super. 2012), aff’d, 79 A.3d 520 (Pa. 2013), cert. denied, 134 S. Ct. 2662

(U.S. 2014).    Approximately one and a half months after trial, and while

Appellant’s post-sentence motion was pending, the Supreme Court affirmed

the Superior Court’s decision in Yohe. Yohe, 79 A.3d at 523, 543. Because

Appellant’s claim pertains to Yohe, as well as Bullcoming v. New Mexico,

131 S. Ct. 2705 (U.S. 2011), we summarize those decisions first.

      In Yohe, our Supreme Court stated:

             Whether the admission of the Toxicology Report
         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.

            The Confrontation Clause of the Sixth Amendment,
         made applicable to the States via the Fourteenth
         Amendment, provides that “[i]n all criminal prosecutions,
         the accused shall enjoy the right . . . to be confronted with
         the witnesses against him. . . .”[ ] . . . The Confrontation
         Clause, the High Court explained, prohibits out-of-court
         testimonial statements by a witness unless the witness is


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         unavailable and the defendant had a prior opportunity for
         cross-examination.[ ]

Yohe, 79 A.3d at 530-31 (citations omitted).

            In Bullcoming, the defendant was charged with driving
         while intoxicated, and, at his subsequent trial, the
         laboratory report of his BAC was offered into evidence.
         The report was completed, signed, and certified by an
         analyst who was not called to testify.     Instead, the
         prosecutor called as a witness another analyst from the
         same lab to testify generally about lab procedures and
         equipment. . . .

Id. at 527 (citing Bullcoming, 131 S. Ct. at 2709, 2711-12). The United

States Supreme Court held the trial court erred in “permit[ing] the

testimonial statement of one witness . . . to enter into evidence through the

in-court testimony of a second person . . . “ Yohe, 79 A.3d at 527 (citing

Bullcoming, 131 S. Ct. at 2713).       “The [Bullcoming] Court specifically

disapproved of such ‘surrogate testimony,’ which could not have conveyed

‘what [the certifying analyst] knew or observed about the events his

certification concerned, i.e., the particular test and testing process he

employed,’ nor would it ‘expose any lapses or lies on the certifying analyst’s

part.’” Yohe, 79 A.3d at 527 (citing Bullcoming, 131 S. Ct. at 2715).

      In Yohe, the trial court admitted into evidence a toxicology report

authored by a toxicologist and assistant laboratory director, Dr. Lee Blum, as

well as the expert testimony of Dr. Blum. Yohe, 79 A.3d at 524. “Dr. Blum

did not handle [the defendant’s] blood sample, prepare portions for testing,

place the prepared portions in the machines, or retrieve the portions after



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testing[.]” Id. at 540. However,

         he reviewed the case folder, verified the chain of custody
         information and examined the personal identification
         information[,] checked the testing that was performed and
         the data that resulted, evaluated the [raw] analytical data
         from the duplicate gas chromatography and the enzymatic
         assay, compared the results of             the two gas
         chromatography tests, compared the result of the
         enzymatic assay test to the two gas chromatography tests,
         ensured that these numbers supported each other, and
         reported the lowest of the two gas chromatography test
         results as [the defendant’s] BAC.

Id. at 539-40 (emphases omitted). The Pennsylvania Supreme Court held:

         . . . Dr. Blum is the analyst who determined [the
         defendant’s] BAC. Although he relied on the raw data
         produced by the lab technicians and utilizedthis raw data in
         reaching an expert opinion premised on his evaluation of
         the case file, he is the only individual who engaged in the
         critical comparative analysis of the results of the gas
         chromatograph tests and the enzymatic assay and
         determined [the defendant’s] BAC.

Id. at 540.    The Court thus concluded the Commonwealth “complied with

Bullcoming by assuring [the defendant’s] right to be confronted with the in-

court testimony of the right to be confronted with the in-court testimony of

the scientist who evaluated the raw data in the case file and signed the

certification.” Id. at 541.

      In the instant appeal, Appellant avers “Mr. Seay’s involvement in

reviewing [Appellant’s] blood test results clearly falls far short of the

standards set forth by the Supreme Court in” Yohe. Appellant’s Brief at 66.

Appellant acknowledges Mr. Seay’s testimony that “he was involved with the

volatiles blood testing portion of the tests,” but maintains Mr. Seay’s


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conclusion was not based on his own analysis of the raw data and that “Mr.

Seay did not independently determine and certify the results.”              Id.

Appellant concludes “Mr. Seay was a surrogate witness” under Bullcoming,

and thus his right to confrontation under the Sixth Amendment was violated.

We find no relief is due.

      In the instant case, Brian Seay’s testimony at trial was relatively brief.

See N.T. at 190-203. With respect to his role in this case, Mr. Seay testified

on direct examination by the Commonwealth that he “reviewed the data.”

Id. at 191. The following exchange occurred:

            [Commonwealth:] . . .     What is your involvement in
         regards to the report[, Exhibit C-9,] I’m about to hand
         you?

            [Mr. Seay:] My involvement was to review the results
         of the test performed by the technologist.

            Q. Do you normally do that?

            A. Yes. It’s a normal standard operating procedure for
         a certified scientists to review the results before released
         [sic]. The technologists are not qualified to review and
         release results.

                                  *     *      *

            Q. And what involvement and the results regarding C-
         9, please [sic]?

            A.   I was involved with the volatiles blood testing
         portion of this test which lists the methanol, ethanol,
         isopropanol, and acetone results. And we have [a BAC of
         0.079%.]

Id. at 193-94.



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      On cross-examination, Mr. Seay responded to defense counsel’s

questions as follows:

            [Mr. Seay:]     I did not perform the testing, but I
         reviewed it.

                                     *     *      *

            [Appellant’s counsel: You did not receive the specimen
         or log it into your computer system?]

            [Mr. Seay:] Only thing I did was enter the results to be
         released.

Id. at 197-98.

      The above passages are the sum of Mr. Seay’s testimony as to what

actions he took in this case.        We agree with Appellant that this is less

descriptive than the actions testified to by Dr. Blum in Yohe. See Yohe, 79

A.3d at 539-40.    Nevertheless, we disagree that Mr. Seay was merely a

surrogate witness under Bullcoming.               In Bullcoming, the witness was

merely “another analyst from the lab [who] testif[ied] generally about lab

procedures and equipment.”       Yohe, 79 A.3d at 527.           Here, Mr. Seay

testified that he “was involved with the volatiles blood testing” and that he

reviewed the results of the test, where the technologists were not qualified

to review and release results. N.T. at 193. Accordingly, we agree with the

trial court “that he was competent to testify to the truth of the statements

made in the report and that Appellant’s right to confrontation was not

violated.” See Trial Ct. Op. at 6.

      Furthermore, if the court erred in allowing the evidence, we would


                                         - 17 -
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hold it was harmless error.

         Harmless error exists where: (1) the error did not
         prejudice the defendant or the prejudice was de minimis;
         (2) the erroneously admitted evidence was merely
         cumulative of other untainted evidence which was
         substantially similar to the erroneously admitted evidence;
         or (3) the properly admitted and uncontradicted evidence
         of guilt was so overwhelming and the prejudicial effect of
         the error was so insignificant by comparison that the error
         could not have contributed to the verdict.

Commonwealth v. Atkinson, 987 A.2d 743, 752 (Pa. Super 2009)

(citation omitted).

      Appellant does not challenge the testimony of Adrienne Strawser, who

drew and tested his blood at Lewistown Hospital. Ms. Strawser testified she

drew one test tube of blood from Appellant and tested it herself for blood

alcohol content, and the test showed a BAC of 0.077%. N.T. at 168. She

drew four additional tubes to send to Quest for test toxicology testing; Quest

happens to also test for alcohol. Id. at 168-69. Ms. Strawser’s test result

was lower than that of Quest; Seay testified the Quest test yielded a BAC of

0.079%. Accordingly, Mr. Seay’s testimony did not prejudice Appellant and

was cumulative of Ms. Strawser’s testimony, and the Commonwealth’s

“properly   admitted   and    uncontradicted   evidence   of   guilt   was   so

overwhelming and the prejudicial effect of the error was so insignificant by

comparison that the error could not have contributed to the verdict.” See

Atkinson, 987 A.2d at 752.

      Finding no relief due on Appellant’s claims, we affirm the judgment of



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sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/23/2015




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