J. A02034/14

NON-PRECEDENTIAL DECISION             SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
DREW RIZZO,                              :          No. 60 EDA 2013
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, July 24, 2012,
              in the Court of Common Pleas of Bucks County
             Criminal Division at No. CP-09-CR-0001450-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 17, 2014

      Appellant appeals from the judgment

6

under the influence (DUI - general impairment), driving under the influence

(DUI - high rate of alcohol), careless driving, stop signs and yield signs, and

turning movements and required signals.1      Finding no error on review, we

affirm.

      The trial court accurately presented the factual background:

                 In the early morning hours of October 25,
            2011, Officer Brad Smeltzer of the Morrisville
            Borough Police Department was patrolling the
            400 block of South Pennsylvania Avenue in

* Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), 3714(a), 3323(b), and 3334(a),
respectively.
J. A02034/14

          Morrisville Borough, Bucks County, Pennsylvania.
          N.T. 7/19/12, pp. 6-7. At approximately 12:33 AM,
          Officer Smeltzer observed a black sedan drive
          through a stop sign located on the southbound ramp
          of Route 1 and proceed south on Pennsylvania
          Avenue. N.T. 7/19/12, p. 7. The driver of the
          vehicle then made a left turn into a parking lot
          without using the turn signal. N.T. 7/19/12, pp. 7-8.
          The officer thereafter activated his overhead
          emergency lights and effectuated a traffic stop. N.T.
          7/19/12, p. 8.

                When Officer Smeltzer approached the car, he
          noticed that the driver of the vehicle, the Defendant,
                                                   -
          N.T. 7/19/12, p. 9. An odor of alcohol emanated
                                          Id. While conversing
          with the officer, the Defendant admitted to drinking
          two beers that evening. N.T. 7/19/12, pp. 9-10.
          The Defendant responded slowly to the officer, but
          did not slur his words. N.T. 7/19/12, p. 21.

                Officer Smeltzer directed the Defendant to step
          out of his vehicle and thereafter administered three


          forward, six steps back and to count aloud as he did
          so. The Defendant took four steps, failed to count
          aloud and was unsteady on his feet. N.T. 7/19/12,
          p. 12. During the second test, the Defendant was
          instructed to tilt his head back, close his eyes,
          outstretch his arms and touch the tip of his nose
          with the tip of his finger. The Defendant touched the
          bridge of his nose with the middle of his finger. N.T.
          7/19/12, p. 13. Finally, the Defendant was asked to
                                -
          directed to stand on one foot and lift the other foot
          approximately six inches from the ground and count
          to nine. The Defendant lifted his foot but had to
          touch his foot to the ground numerous times. N.T.
          7/19/12, p. 14. At no point did the Defendant
          inform the officer that he suffered from any condition
          that would have prevented him from adequately
          completing the field sobriety tests. N.T. 7/19/12,


                                  -2-
J. A02034/14

            p. 32.      Based   upon   his   observations   and   the

            Officer Smeltzer formed the opinion that the
            Defendant was incapable of safely operating a motor
            vehicle. N.T. 7/19/12, p. 42.


            Medical Center by Officer Justin Bickhardt of the
            Morrisville Police Department. N.T. 7/19/12, pp. 44-
            46. After arriving at the hospital, the Defendant
            signed a consent form allowing the hospital staff to
            draw his blood.        N.T. 7/19/12, p. 46.         In
            Officer
                                                             N.T.
            7/19/12, pp. 46, 48, 51. The
            drawn at 1:30 AM on October 25, 2011.            N.T.
            7/19/12, pp. 47, 51; Exhibit C-1.          Thereafter,
            Mr.
            the vials of blood and put the vials into an evidence
            bag, after which point the evidence bag was sealed.
            N.T. 7/19/12, pp. 48, 52
            samples were later submitted to the Bucks County
            Crime Laboratory for analysis. N.T. 7/19/12, pp. 56,
            65
            determined to be .105%. No drugs were detected.
            N.T. 7/19/12, p. 67; Exhibit C-3.

Trial court opinion, 2/13/13 at 1-3 (footnote omitted).

      Appellant raises the following issues on appeal:

            I.
                     Driving Under the Influence, High Rate of
                     Alcohol, was supported by sufficient evidence
                     because the Analyst testified that the test on



                     the   analyst  testified  that   the   written
                     procedures require that the internal standard

                     control samples must be within twenty-five
                     percent of the average internal standard peak



                                       -3-
J. A02034/14

                 samples fell outside of the twenty-five percent
                 limit.

          II.
                 Driving Under the Influence, High Rate of
                 Alcohol, was supported by sufficient evidence

                 blood alcohol content may be as low as
                 0.077%[?]

          III.
                 Driving Under the Influence, High Rate of
                 Alcohol, was supported by sufficient evidence
                 because the Commonwealth failed to develop a

                 blood sample[?] More specifically, contrary to
                 the chain of custody documents stating that
                 Officer Smeltzer   placed    the    blood    into
                 evidence, Officer Smeltzer testified that he had
                 no interaction or involvement with the blood
                 after it was drawn from [appellant] at the
                 hospital.

          IV.    Whether the Trial Court erred by allowing
                 Joanne Szpanka to testify that Josh Folger,




          V.     Whether the Tria
                 Driving Under the Influence, High Rate of
                 Alcohol, was against the weight of the evidence
                 because the Analyst testified that the test on


                 L
                 specifically, the analyst testified that the
                 written procedures require that the internal

                 and quality control samples must be within
                 twenty-five percent of the average internal
                 standard peak areas of calibrators and that

                 twenty-five percent limit.


                                    -4-
J. A02034/14



           VI.
                   Driving Under the Influence, High Rate of
                   Alcohol, was against the weight of the evidence

                   blood alcohol content may be as low as
                   0.077%[?]

           VII.
                   Driving Under the Influence, High Rate of
                   Alcohol, was against the weight of evidence
                   because the Commonwealth failed to develop a

                   blood sample[?] More specifically, contrary to
                   the chain of custody documents stat[ing] that
                   Officer Smeltzer   placed    the    blood    into
                   evidence, Officer Smeltzer testified that he had
                   no interaction or involvement with the blood
                   after it was drawn from [appellant] at the
                   hospital.

           VIII.
                   Driving    Under    the    Influence,    General
                   Impairment, was against the weight of
                   evidence because the Trial Court as finder of
                   fact improperly found a reliable blood alcohol
                   content which could be consider[ed] in
                   determining whether [appellant] was impaired
                   and the remaining testimony and evidence
                   provided was if insufficient weight to support a
                   conviction[?]

                     -6 (footnotes and suggested answers omitted).

     Preliminarily, we note a duplication of issues above. Appellant raises

the same core issue at Issues I and V, II and VI, and III and VII. The only

difference is that the former issue is cast as a sufficiency of the evidence

claim while the latter issue is cast as a weight of the evidence claim. We

determine that the core issues described at Issues I and V and Issues II and



                                      -5-
J. A02034/14

VI go to the sufficiency of the evidence; consequently, we will not review

Issues V and VI because the core issues do not implicate the weight of the

evidence. On the other hand, we find that the core issue described at Issues

III and VII goes to the weight of the evidence; consequently, we will not

review Issue III as sufficiency of the evidence is not implicated.



connected. Issue I challenges the sufficiency of the evidence:

                  A challenge to the sufficiency of the evidence is
            a question of law, subject to plenary review. When
            reviewing a sufficiency of the evidence claim, the
            appellate court must review all of the evidence and
            all reasonable inferences drawn therefrom in the
            light most favorable to the Commonwealth, as the
            verdict winner. Evidence will be deemed to support
            the verdict when it establishes each element of the
            crime charged and the commission thereof by the
            accused, beyond a reasonable doubt.                The
            Commonwealth need not preclude every possibility
            of innocence or establish the defe
            mathematical certainty. Finally, the trier of fact
            while passing upon the credibility of witnesses and
            the weight of the evidence produced, is free to
            believe all, part or none of the evidence.

Commonwealth v. Teems, 74 A.3d 142, 144-145 (Pa.Super. 2013)

(citations omitted), appeal denied, 79 A.3d 1098 (Pa. 2013), citing

Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010),

appeal denied, 29 A.3d 797 (Pa. 2011).

      Issue IV questions the admission of alleged hearsay evidence.      The

following principles guide our consideration of whether the trial court erred

in its conclusion.


                                     -6-
J. A02034/14

             The admission of evidence is committed to the sound
             discretion of a trial court and will not be reversed
             absent an abuse of discretion. Discretion is abused
             where the law is not applied. Where improperly
             admitted evidence has been considered by the [fact-
             finder], its subsequent deletion does not justify a
             finding of insufficient evidence and the remedy in
             such a case is the grant of a new trial.

Commonwealth v. Chamberlain, 731 A.2d 593, 595 (Pa. 1999) (internal

quotations   and   citations   omitted),   cert.   denied,   Chamberlain    v.

Pennsylvania, 132 S.Ct. 2377 (2012).

                                                               -of-
             court statement, which is offered in evidence to
             prove the truth of the matter asserted. Hearsay
             statements are generally inadmissible unless they
             fall under an enumerated exception. An out-of-court
             statement is not hearsay when it has a purpose
             other than to convince the fact finder of the truth of
             the statement.

Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012) (internal citations

omitted), cert. denied, Busanet v. Pennsylvania, 134 S.Ct. 178 (2013).

      In Issue I, appellant argues that the evidence was insufficient because

the BAC result testified to by analyst Joanne Szpanka was unreliable.

Specifically, appellant contends that Szpanka contradicted her testimony

when she first testified that the result had to conform to a certain threshold




20-24.) As a corollary to this issue, in Issue IV, appellant also argues that




                                     -7-
J. A02034/14




how she found                                                            -30.)

         The SOP for the Bucks County Crime Laboratory provides standards for



samples and controls must be within 25 percent of the average internal



75-76.)      Szpanka later testified that this 25 percent figure was a clerical

error, and the laboratory utilized a 50 percent figure. (Notes of testimony,



50                                             Id.

within 50 percent, but not within 25 percent. (Notes of testimony, 7/20/12

at 4.)

         Szpanka testified about this clerical error as follows.

               Q.
                     not to report that result. Correct?

               A.    Upon reviewing the SOP for the laboratory, it
                     had come to my attention that there is a
                     clerical error --

               Counsel for Appellant: Objection.

               A.    -- in the SOP.


               Overruled.


               her attention from, Your Honor.         Hearsay, Your




                                         -8-
J. A02034/14

             A.    You put the SOP in front of me. I read the
                   SOP, turned the SOP to you and the ADA, and
                   said the 25 percent comment was a
                   typographical, clerical error. Last lab. The
                   laboratory practice is within 50 percent, and it
                   always has been.

Id. at 5.

      Szpanka later testified, on re-direct examination, about how this

clerical error came about.     She stated that Josh Folger, the person who



                          Id. at 13.) Counsel for appellant again objected to

hearsay.    The trial court permitted Szpanka to testify because it was her

understanding of why she was following a different protocol. (Id.)

      On appeal, appellant argues that the trial court erred in failing to

sustain these hearsay objections.        The trial court concluded that the

evidence was not hearsay, and reasoned as follows.

                   There is no evidence on the record that the
                                                                 -of-
             court statements of a third party. In any case, the
             explanation was not being offered for the truth of the
             matter asserted, i.e. that the error in fact occurred in
             that fashion. The import of the testimony was that
             the written procedural protocol relied upon by the
             defense contained incorrect information.

Trial court opinion, 2/13/13 at 7.

      We agree. When Szpanka testified that it had come to her attention

that there was a clerical error in the SOP, that does not indicate that

someone told her about it. Appellant argues that her language to the effect,



                                      -9-
J. A02034/14

                                                    one had told her of the



suggests that Szpanka discovered the error herself. Had Szpanka testified,



indica

that Folger was using a prior method from another laboratory as a template

for his SOP, this is not an assertion that Folger told her this information.

Szpanka may have witnessed Folger preparing the SOP using the other



for the truth of the matter asserted since the origin of the error in the SOP

was of no moment. It was the existence of the 25 percent error itself that

was critical and Szpanka testified to this as if it were first-hand knowledge



testimony that she was relying on, or repeating, an out-of-court statement

by a third party. Issue IV is without merit.




re-direct, the Commonwealth adduced testimony from Szpanka that using



(Notes of testimony, 7/20/12 at 12-

evidence was insufficient using the incorrect 25% measure thus relies upon



                                    - 10 -
J. A02034/14

an improper predicate to reach a false conclusion. We remind appellant that

our standard of review requires us to view the evidence in the light most

favorable to the Commonwealth.      The Commonwealth produced evidence

that the proper measure was 50% and that using that parameter,



Issue I is without merit.

      In Issue II, appellant argues that the evidence was insufficient

                                                       be as low as .077%.



      Here, appellant was convicted of DUI - high rate of alcohol, which

provides as follows.

            (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

                  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.A. § 3802(b).

      Appellant



                       24-27.)   The trial court concluded that appellant



proper procedure for calculating blood alcohol content would not result in a



                                   - 11 -
J. A02034/14

                                                        inion, 2/13/13 at 7

(emphasis in original).) We agree.

       On cross-examination, Szpanka testified as follows:

            Q.     And a calibration curve, basically, is an
                   equation that allows you to extrapolate a
                   blood/alcohol content?

            A.

            Q.     Okay. So using the average area of 272,582,
                   you came up -- plugging into the calibration
                   curve, you came up with a result of .0777?

            A.     Correct.

Notes of testimony, 7/20/12 at 8.

       On re-direct examination, Szpanka clarified this testimony.         She

test

result was 193,393.       It was not the average of the calibrators.   It was

                                                             Id. at 15.)   The

                                         ed how counsel for appellant reached

the .077 number.

            [ADA]: And what [counsel for appellant] was using
            was the average of the calibrators to get that .077
            number. Correct?

            A.     Yes.

Id. at 15-16.

       Based on a review of this testimony, we agree with the trial court that




                                     - 12 -
J. A02034/14




hypothetical situation

testified that in this case, because the actual internal standard recovery



the statutory range of .10% and .16%.        Accordingly, Issue II is without

merit.

      As previously noted, we will not be reviewing Issues III, V, and VI. In

Issue VII, appellant argues that his conviction for DUI   High Rate of Alcohol

was against the weight of the evidence because the Commonwealth failed to

establish a sufficient chain of custody for his blood sample.    We note our

standard of review:

                   A motion for a new trial based on a claim that
            the verdict is against the weight of the evidence is
            addressed to the discretion of the trial court.
            Commonwealth v. Widmer, 560 Pa. 308, 319, 744
            A.2d 745, 751-52 (2000); Commonwealth v.
            Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189
            (1994). A new trial should not be granted because
            of a mere conflict in the testimony or because the
            judge on the same facts would have arrived at a
            different conclusion. Widmer, 560 Pa. at 319-20,


            certain facts are so clearly of greater weight that to
            ignore them or to give them equal weight with all the
                                         Id. at 320, 744 A.2d at
            752 (citation omitted). It has often been stated that

            verdict is so contrary to the evidence as to shock
                                            ard of a new trial is
            imperative so that right may be given another


                                    - 13 -
J. A02034/14

                                      Brown, 538 Pa. at 435, 648
            A.2d at 1189.


            presented with a weight of the evidence claim is
            distinct from the standard of review applied by the
            trial court:

                  Appellate review of a weight claim is a
                  review of the exercise of discretion,
                  not of the underlying question of
                  whether the verdict is against the
                  weight of the evidence. Brown, 648
                  A.2d at 1189. Because 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

                  against the weight of the evidence.
                  Commonwealth v. Farquharson, 467
                  Pa. 50, 354 A.2d 545 (Pa.1976). One of
                  the least assailable reasons for granting

                  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.

            Widmer, 560 Pa. at 321-22, 744 A.2d at 753
            (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).

      In its opinion, the trial court identified the correct standard by which it




court later provided this analysis on chain of custody:




                                     - 14 -
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          To establish chain of custody, the Commonwealth
          need not produce every individual who came into
          contact with the evidence, nor need it eliminate all
          possibilities of tampering. Commonwealth v. Rick,
          366 A.2d 302 (Pa.Super. 1976). Evidence may be
          admitted despite gaps in testimony regarding its
          custody. Commonwealth v. Bruner, 564 A.2d 1277,
          1285 (Pa.Super. 1989) (citing Commonwealth v.
          Hudson, 489 Pa. 620, 414 A.2d 1381 (1980)). Gaps
          in the chain of custody go to the weight that is to be
          afforded     evidence,  not   to   its  admissibility.
          Commonwealth v. Copenhefer, 553 Pa. 285, 312,
          719 A.2d 242, 256 (1998).

               The evidence admitted at trial in the instant
          case established that, after the initial car stop, the

          Center by Officer Bickhardt. N.T. 7/19/12, pp. 44-
          46. Thomas Mazzo, a registered nurse, drew the

          Bickhardt. N.T. 7/19/12, pp. 46, 48, 51; Exhibit C-

          the vials of blood, placed the vials into an evidence
          bag and sealed the bag. N.T. 7/19/12, pp. 48, 52.
          Officer Bickhardt then transported the evidence to
          the police station where it was secured in evidence.
          N.T. 7/19/12, p. 48.           Lt. Thomas Herron
          subsequently transported the evidence to the Bucks
          County Crime Laboratory for purposes of analysis.
          N.T. 7/19/12, pp. 56, 65. This evidence is clearly
          sufficient to permit admission of the blood test

          and weight of the evidence base[d] upon chain of
          custody is, therefore, without merit.

                In challenging the chain of custody, the
          Defendant relies on Exhibit C-1, the blood alcohol
          evidence kit form and Exhibit C-
          submission      form,    which      indicate    that
          Officer Smeltzer placed the blood samples in
          evidence    at    the  police   station    and   not
          Officer
          testimony that he did not handle the evidence. N.T.
          7/19/12 p. 43. This contradiction does not alter the


                                  - 15 -
J. A02034/14

              conclusion that evidence of the blood test analysis
              was admissible. In Commonwealth v. Seibert, 799
              A.2d 54, 61 (Pa.Super.2002), the court held that the
              fact that the Emergency Room technician did not

              preclude admission of the blood test results. The
              court held that the previously completed, signed,
              and dated form explaining the performed procedures
              and corresponding results was sufficient to establish
              a chain of custody. Commonwealth v. Seibert, 799
              A.2d 54, 61, (Pa.Super.2002). In the instant case,
              the Blood Alcohol Kit Evidence Report, Exhibit C-1,
              and the Bucks County Crime Laboratory Chain of
              Custody Report, Exhibit C-2, establish the blood was
              transferred from the registered nurse who drew the
              blood to Office[r] Bickhardt.        Officer Bickhardt
              transferred    custody     of    the     evidence   to
              Officer Smeltzer, who placed the item into evidence.
              Under the holding of Seibert, this evidence was
              sufficient to establish chain of custody. Moreover,
              even with this gap in the chain of custody, the
              evidence is still admissible.      Commonwealth v.
              Bruner, supra. As stated above, gaps in the chain of
              custody go to the weight that is to be afforded
              evidence, not to its admissibility. Commonwealth v.
              Copenhefer, supra.

Id. at 8-9.

      We find no abuse of discr

weight of the evidence pertaining to the chain of custody of the blood



specific complaint. There is no error.

      Finally, in Issue VIII, appellant asserts that his conviction for DUI

General Impairment was against the weight of the evidence. The trial court

provided the following analysis:




                                      - 16 -
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                  Finally, the Defendant avers that the conviction
            of Driving Under the Influence General Impairment
            was against the weight of the evidence because the


            Defendant was impaired, and that the remaining
            testimony and evidence was of insufficient weight to
            support the verdict.    As discussed above, the


            content, considered in conjunction with evidence

            observations of the De
            failure to properly perform field sobriety tests is
            more than sufficient to support the conclusion that
            the Defendant was incapable of safe driving. His
            conviction for violating section 3802(a)(1) of the
            Driving Under the Influence of Alcohol statute was,
            therefore, proper.

Id. at 9-10.



trial court catalogued the several factors leading to its verdict, particularly

                                         was .105%. There is no error here

either.

      Accordingly, having found no error in the issues raised on appeal, we

will affirm the judgment of sentence.

      Judgment of sentence affirmed.



Ott, J. joins the Memorandum.



Strassburger, J. files a Concurring and Dissenting Memorandum.



                                    - 17 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/17/2014




                          - 18 -
