J. S57013/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
DYER McCALL,                             :         No. 1497 WDA 2015
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, September 10, 2015,
               in the Court of Common Pleas of Clearfield County
                Criminal Division at No. CP-17-CR-0000670-2014


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 19, 2016

        Dyer McCall appeals from the September 10, 2015 aggregate

judgment of sentence of 90 days’ to one-year imprisonment, plus one year

of consecutive probation, imposed after a jury found him guilty of one count

of driving under the influence of a controlled substance (“DUI”) and multiple

summary driving offenses.1 After careful review, we affirm.

        The relevant facts and procedural history of this case are as follows.

On June 10, 2014, at approximately midnight, Pennsylvania State Police

Trooper Brian A. Elensky (“Trooper Elensky”) stopped appellant’s vehicle

after he observed it cross over the center line of State Route 879 multiple




* Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(d)(2) , 1311, 1786, 3309, and 3714, respectively.
J. S57013/16


times.     (Notes of testimony, 5/22/15 at 31-32.)         After approaching the

vehicle, Trooper Elensky observed that appellant was holding a pill bottle

and appeared to be drowsy and “somewhat confused.” (Id. at 34-35, 41.)

Based upon his observations, Trooper Elensky asked appellant to exit his

vehicle to perform field sobriety tests.          (Id. at 36.)    During testing,

Trooper Elensky     observed   that   appellant    exhibited   multiple   signs   of

impairment.      (Id.)    Specifically, Trooper Elensky noted that appellant

“swayed” during testing, “was unable to do the [one-leg-stand-test] on one

foot,” was not very alert, and his balance, memory, and coordination were

very poor. (Id. at 37-38, 41-42.) Trooper Elensky testified that later that

evening,     appellant   informed   him   he   had    consumed     buprenorphine,

clonazepam, Keppra, and 10 milligrams of Oxycodone to help him sleep

better. (Id. at 38-40.) Appellant also indicated to Trooper Elensky that he

suffered from seizures and pain due to prior head and shoulder injuries and

that he did not have a current prescription for Oxycodone. (Id. at 39, 67,

88.)     Following his arrest, appellant was transported to Clearfield Hospital

and consented to a blood test. (Id. at 52-53.) The results of appellant’s

blood test were analyzed by NMS Laboratories (“NMS Labs”), which prepared

a toxicology report detailing its findings. (Id. at 54.)




                                      -2-
J. S57013/16


        On September 16, 2014, appellant was charged with three counts of

DUI of a controlled substance or its metabolites2 and multiple summary

driving offenses. Appellant proceeded to a jury trial on May 22, 2015. At

trial, appellant introduced the entirety of a 1,017-page litigation support

packet prepared by NMS Labs (“NMS packet”). (Id. at 141-142.) The NMS

packet detailed the analytical test data generated from the analysis of

appellant’s blood sample.     (Id.)   Following a one-day trial, appellant was

found guilty of one count of DUI in violation of Section 3802(d)(2) and

multiple summary driving offenses. Appellant was found not guilty of DUI --

schedule II or III controlled substance, DUI -- metabolite of a controlled

substance, and the summary offense of reckless driving.3               As noted,

appellant was sentenced to an aggregate term of 90 days’ to one-year

imprisonment, plus one year of consecutive probation, on September 10,

2015. On September 14, 2015, appellant filed a post-sentence motion for

bail pending appeal, which was granted by the trial court the following day.

This timely appeal followed on September 29, 2015.4

        On appeal, appellant raises the following issues for our review:

              1.    [Whether t]he [t]rial [c]ourt erred when it
                    barred [appellant’s c]ounsel from arguing its
                    theory of the case by preclud[ing appellant’s

2
 A “metabolite” is a by-product of the body’s metabolism, or digestion, of a
chemical.
3
    75 Pa.C.S.A. §§ 3802(d)(1)(ii), 3802(d)(1)(iii) and 3736, respectively.
4
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


                                       -3-
J. S57013/16


                   c]ounsel from making arguments to the jury at
                   closing about evidence that was properly put
                   into the record that exposed errors in the
                   Commonwealth’s theory of impairment as well
                   as serious issues in the analytical test results
                   that also casted [sic] doubt on the
                   Commonwealth’s theory of impairment when
                   [appellant’s c]ounsel’s arguments did not
                   create or introduce new evidence at closing but
                   would have merely exposed flaws in the
                   Commonwealth’s case based on testimony and
                   evidence already put into the record[?]

            2.     [Whether t]he [t]rial [c]ourt erred as a matter
                   of law when it allowed the test results of
                   oxymorphone[5] to be introduced by the
                   Commonwealth in violation of 75 Pa.C.S.A.
                   [§] 1547(c)(4) as oxymorphone does not have
                   the required minimum detection level set by
                   the Department of Health which is a
                   prerequisite for admissibility of Schedule II
                   drugs or their metabolites[?]

Appellant’s brief at 2.

      The crux of appellant’s first claim is that the trial court erred in

sustaining the Commonwealth’s objection to a portion of his counsel’s

closing argument.     Specifically, during his summation, appellant’s counsel

attempted to dispute the quantity of Oxycodone and the other controlled

substances found in appellant’s blood by displaying and referencing a

Quantitative Analysis Sample Report (“QAS report”) appearing on page 312

of the 1,017-page NMS packet. (Notes of testimony, 5/22/15 at 224-225;



5
  We note that oxymorphone is an active metabolite of Oxycodone, and
causes the same spectrum of effects caused by Oxycodone. (Notes of
testimony, 5/22/15 at 122.)


                                     -4-
J. S57013/16


see also appellant’s “Exhibit E.”) At sidebar, the Commonwealth objected

on the basis that appellant’s counsel had failed to cross-examine its expert

witness with regard to the QAS report and that referencing the forensic data

contained therein would confuse the jury. (Id. at 226.) Appellant’s counsel,

on the contrary, argued that a proper foundation was laid when he

introduced the NMS packet into evidence and that he should be permitted to

argue issues relating to this data.     (Id. at 225-226.)     Following further

discussion, the trial court ruled that it was excluding this portion of counsel’s

closing. (Id. at 227.) In so ruling, the trial court reasoned as follows:

                   All I can say is that notwithstanding what
            [appellant’s counsel] may have presented or what
            [the forensic toxicologist] may have said, that I
            cannot make heads or tails out of this [QAS report].
            It does say something about qualifier and ratio,
            qualifier ratio to uses some material to confirm, and
            it says down at the bottom Oxycodone, and
            there’s [sic] numbers. I have no idea what those
            mean. And it says path/review and it says review.
            And then these buprenorphine, okay, morphine, it
            says, past. But my recollection is in regard to that
            buprenorphine, that that was beyond the reportable
            limits.

            ....

                  All this should have been asked to the witness.
            You’re just pulling this out of the blue. And I think if
            I allow you to do this, you are then testifying. So I
            am going to exclude this.

            ....

                   I understand you object.      But it’s totally
            confusing. It’s out of context. I don’t believe it’s
            sufficiently related to what you asked her, including


                                      -5-
J. S57013/16


            you should have pulled [the QAS report] out and
            asked the witness about that [forensic data]. Okay.

Id. at 226-228.

      Appellant contends that the trial court abused its discretion in

precluding his counsel from drawing a reasonable inference from this

forensic   data    that   the   quantity   of   Oxycodone,   oxymorphone,   and

clonazepam found in his blood were suspect. (Appellant’s brief at 12-13.)

Appellant further argues that his counsel should have been permitted to

draw a reasonable inference “that there was buprenorphine in [a]ppellant’s

blood and that could have negated the effects of the opioids in his system.”

(Id. at 14.)      Lastly, appellant avers that this data shows that his “poor

driving and test results are equally as likely to be because of [his] physical

condition due to his brain injury and neurological conditions.” (Id.)

      “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). “An abuse of discretion is not merely an error of judgment; rather

discretion is abused when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will, as shown by the evidence or the record.”

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),

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


                                       -6-
J. S57013/16


      Instantly, our review of the record reveals that there was no

evidentiary basis for appellant’s counsel to display or reference the forensic

data contained in the QAS report during his closing argument. At trial, the

Commonwealth presented the testimony of Donna Papsun (“Papsun”), an

expert in the field of forensic toxicology who reviewed appellant’s toxicology

report for NMS Labs.   (Notes of testimony, 5/22/15 at 111-114.)       Papsun

testified at great length with regard to the combination of drugs found in

appellant’s system and the analytical test data generated from the analysis

of appellant’s blood sample. (Id. at 117-168.) Papsun further testified that

she reviewed all of the data contained in the NMS packet and had “no reason

to believe there’s [sic] any problems based on full review of the screening

and confirmation testing.” (Id. at 142-144.) During cross-examination of

Papsun, appellant’s counsel asked her a number of general hypothetical

questions   on   chromatography6     and   the   various   identification   and

quantification problems that can occur. (Id. at 144-151.) However, at no

point during this cross-examination did counsel ever question Papsun with

regard to any of the forensic data set forth in the QAS report or

chromatogram that appeared on page 312 of the 1,017-page NMS packet.

Additionally, Papsun did not refer to, interpret, or explain any of the QAS

report’s data during her direct examination.



6
  “Chromatography” is the technique of separating and analyzing the
components of a controlled substance to determine quantity.


                                    -7-
J. S57013/16


     Generally speaking, counsel’s statements during closing argument

“must . . . be based upon matters in evidence and/or upon any legitimate

inferences that may be drawn from the evidence.”          Commonwealth v.

Keaton, 45 A.3d 1050, 1074 (Pa. 2012) (citation omitted); see also

Commonwealth       v.   Johnson,    42    A.3d    1017,   1039   (Pa.   2012),

cert. denied, 133 S.Ct. 1795 (2013) (concluding that counsel’s remarks

during summation should contain “fair deductions and legitimate inferences

from the evidence presented during the testimony.” (citation omitted)). This

court has long recognized that “counsel may reasonably display exhibits

which are in evidence and may use such exhibits demonstratively as long as

the demonstration is for illustration purposes and does not constitute the

creation of new evidence.”      Commonwealth v. Wise, 444 A.2d 1287,

1290 (Pa.Super. 1982) (emphasis added).          Here, we agree with the trial

court that permitting appellant’s counsel to utilize or reference the QAS

report’s forensic data during his summation would have resulted in the jury

being exposed to new and potentially confusing evidence it did not hear

during trial. (See trial court opinion, 12/22/15, at 4.) Accordingly, we find

the trial court did not abuse its discretion in sustaining the Commonwealth’s

objection to the aforementioned portion of appellant’s counsel’s closing

argument.

     In any event, even if we were to determine that the trial court’s

decision to preclude counsel from utilizing the aforementioned QAS report



                                    -8-
J. S57013/16


during his closing argument was improper, any error in this regard was

harmless based upon the overwhelming evidence of appellant’s guilt.

Harmless error exists where, inter alia, “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), appeal denied, 8 A.3d 340 (Pa. 2010) (citation

omitted).

      Instantly, appellant was found guilty of one count of DUI in violation of

§ 3802(d)(2). Section 3802(d)(2) provides as follows:

            (d)    Controlled substances.--An individual may
                   not drive, operate or be in actual physical
                   control of the movement of a vehicle under any
                   of the following circumstances:

            ....

                   (2)   The    individual    is   under   the
                         influence     of    a      drug    or
                         combination of drugs to a
                         degree      which       impairs   the
                         individual’s ability to safely drive,
                         operate or be in actual physical
                         control of the movement of the
                         vehicle.

75 Pa.C.S.A. §§ 3802(d)(2) (emphasis added).

      Under this section, the Commonwealth must demonstrate that an

appellant was under the influence of a drug or combination of drugs at the

time he was stopped to such a degree that his ability to safely drive was



                                      -9-
J. S57013/16


impaired.      See Commonwealth v. Etchison, 916 A.2d 1169, 1172

(Pa.Super. 2007), affirmed, 943 A.2d 262 (Pa. 2008). “Section 3802(d)(2)

does not require that any amount or specific quantity of the drug be proven

in order to successfully prosecute under that section.” Commonwealth v.

Williamson, 962 A.2d 1200, 1204 (Pa.Super. 2008), appeal denied, 980

A.2d 608 (Pa. 2009); compare, e.g., 75 Pa.C.S.A. § 3802(a) (requiring that

an individual’s alcohol concentration in his or her blood or breath be at least

0.08% to be convicted).

      Here, appellant freely admitted at trial that he consumed Oxycodone

between 10:00 and 10:30 a.m. the day he was pulled over.                       (Notes of

testimony, 5/22/15 at 191, 200.)            Trooper Elensky, in turn, testified that

appellant     informed   him    that   he    took   10     milligrams   of   Oxycodone

approximately 4 hours before the stop in question, at approximately

8:00 p.m.      (Id. at 39.)       Appellant disagreed with Trooper Elensky’s

timeframe at trial. (Id. at 201.) Trooper Elensky also noted that appellant

informed him he had consumed buprenorphine, clonazepam, and Keppra.

(Id. at 38-40.)     The toxicology report introduced at trial revealed that

appellant’s     blood    contained     the     following     controlled      substances:

clonazepam;      7-amino       clonazepam;       alprazolam;     Oxycodone-Free       or

Oxycodone, which is essentially OxyContin or Percocet; oxymorphone; and

levetiracetam, which is also known as Keppra. (Id. at 117-118.)




                                        - 10 -
J. S57013/16


       Further, Papsun opined in her capacity as an expert in forensic

toxicology that the controlled substances found in appellant’s system, or any

combination thereof, would impair one’s ability to drive. (Id. at 124-129.)

Additionally, Trooper Elensky testified that appellant demonstrated multiple

signs of impairment on the evening in question, including “very slow” speech

and poor balance, alertness, memory and coordination. (Id. at 37-38, 41-

42.)   Trooper Elensky, a six-year veteran of the Pennsylvania state police

who has been involved in over 50 DUI arrests relating to controlled

substances,    testified   that   based   on   his   training,   experience,   and

observations of appellant, it was his opinion that he was not capable of

safely operating a motor vehicle. (Id. at 27-29, 57.) Accordingly, for all the

foregoing reasons, appellant’s first claim of trial court error must fail.

       Appellant next argues that the trial court erred in admitting his test

results for oxymorphone into evidence, as the Department of Health has not

set a minimum detection level for its admissibility, pursuant to 75 Pa.C.S.A.

§ 1547(c)(4). (Appellant’s brief at 14-16.) We disagree.7

       The admissibility of chemical testing in DUI cases is governed by

75 Pa.C.S.A. § 1547(c). “The purpose behind [Section 1547(c)] is to outline

the necessary regulations and procedures that have been approved in this


7
  As discussed, appellant was acquitted of, inter alia, § 3802(d)(1)(iii), the
DUI subsection specifically related to oxymorphone, which is an active
metabolite of Oxycodone, but the Commonwealth also included this
substance in the “combination of drugs” for purposes of the DUI offense for
which appellant was guilty, § 3802(d)(2).


                                      - 11 -
J. S57013/16


Commonwealth for chemical test results to be admissible in relevant legal

proceedings.” Williamson, 962 A.2d at 1204. Section 1547(c)(4) directs

the Department of Health to establish minimum levels of controlled

substances required to be present in admissible test results.      This section

provides as follows:

            (c)    Test results admissible in evidence.--In
                   any     summary      proceeding     or   criminal
                   proceeding in which the defendant is charged
                   with a violation of section 3802 or any other
                   violation of this title arising out of the same
                   action, the amount of alcohol or controlled
                   substance in the defendant’s blood, as shown
                   by chemical testing of the person’s breath or
                   blood, which tests were conducted by qualified
                   persons using approved equipment, shall be
                   admissible in evidence.

            ....

                   (4)   For purposes of blood testing to
                         determine the amount of a
                         Schedule    I    or  nonprescribed
                         Schedule II or III controlled
                         substance or a metabolite of such a
                         substance, the Department of
                         Health shall prescribe minimum
                         levels of these substances which
                         must be present in a person’s
                         blood in order for the test results
                         to be admissible in a prosecution
                         for    a   violation  of    section
                         1543(b)(1.1), 3802(d)(1), (2) or
                         (3) or 3808(a)(2).

75 Pa.C.S.A. § 1547(c)(4).

      The Department of Health’s January 7, 2012 bulletin notes that the

purpose of establishing minimum detection levels for controlled substances


                                     - 12 -
J. S57013/16


is to ensure the reliability of blood test results admitted into court as

evidence.

            The minimum quantitation limits listed for each
            controlled substance or metabolite are the lowest
            concentrations that one or more of the laboratories
            with the least sensitive procedures in the
            Department’s approval program for facilities offering
            these testing services specified they can reliably
            determine. . . . Confirmatory analyses employed to
            substantiate the presence of a drug or drug
            metabolite generally focus on identifying and
            quantitatively determining the concentration of the
            parent drug or a primary metabolite if extensive
            biotransformation occurs. The detection limits listed
            were developed by reviewing the minimum
            reportable concentrations for confirmatory analyses
            that laboratories in the Department’s approval
            program specified they could measure.             The
            concentrations listed are the highest [limits of
            quantitation] that any of the laboratories approved
            by the Department to test blood for controlled
            substance content specify they can reliably
            determine.

42 Pa.Bull. 110 (Jan. 7, 2012).

      Appellant is correct in his assertion that the Department of Health has

not set the minimum detection level for oxymorphone. We are unconvinced,

however, that the General Assembly intended § 1547(c)(4) to bar from

admissibility   the   test   results   of   any   controlled   substance   that   the

Department of Health has not yet set a minimum detection level. As noted

by the trial court, the Department of Health recognized in its January 4,

2014 bulletin that additional testing may be required for any controlled

substance not listed in its notice and directs that “the laboratory performing



                                        - 13 -
J. S57013/16


the test should be contacted as to the lab’s limit of quantitation for any

unlisted controlled substance.” (Trial court opinion, 12/29/15 at 6.)

                   Although there are hundreds of controlled
            substances in Schedule I, II and III,
            quantitation limits are listed only for commonly
            abused controlled substances for which testing
            procedures are readily available. The limit of
            quantitation (LOQ) for any laboratory will depend on
            the equipment and procedures employed for
            confirmatory testing.       The minimum quantitation
            limits listed for each controlled substance or
            metabolite are the lowest concentrations that one or
            more of the laboratories in the Department’s
            approval program for facilities offering these testing
            services specified they can reliably determine.
            Laboratories approved by the Department to test
            blood for controlled substances or their metabolites
            will have LOQs at or below the minimum quantitation
            limits listed in this notice.

                  The Department recognizes that testing
            may     be    required    for  other    controlled
            substances and metabolites not listed in this
            notice. When testing for a controlled substance
            not listed is required, interested parties should
            contact the laboratory performing the test to
            inquire as to that laboratory’s specific method
            of testing, the equipment used and any policies
            or procedures employed by that laboratory to
            ensure that the test results are valid.

See 44 Pa.Bull. 132 (Jan. 4, 2014) (emphasis added).

      In the instant matter, Papsun testified at great length with regard to

the combination of drugs found in appellant’s system and the effect they

would have on his body.       (Notes of testimony, 5/22/15 at 117-129.)

Specifically, Papsun testified that oxymorphone causes the same adverse

effects as Oxycodone.    (Id. at 121-122.)    Papsun further noted that the


                                    - 14 -
J. S57013/16

minimum detection level for oxymorphone at NMS Labs is 1 nanogram per

milliliter, and that the level of oxymorphone found appellant’s blood was

4.3 nanograms per milliliter. (Id. at 123.) Papsun also testified with regard

to policies employed by NMS to ensure the reliability of appellant’s test

results, as well as the specific method of testing and the equipment used.

(Id. at 114-117, 130-171.) Accordingly, we discern no abuse of discretion

on the part of the trial court in overruling appellant’s objection to the

admission of the oxymorphone test results.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/19/2016




                                   - 15 -
