Com. v. Andrews, M.

J-S26011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

MARK WILLIAM ANDREWS

Appellant No. 261 MDA 2021

Appeal from the Judgment of Sentence September 2, 2020

In the Court of Common Pleas of Lebanon County

Criminal Division at No: CP-38-CR-0000988-2019

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED: OCTOBER 14, 2021

Appellant, Mark William Andrews, appeals from his judgment of

sentence of two days to six months’ imprisonment for two counts of driving

under the influence, 75 Pa.C.S.A. §§ 3802(a)(1) and (b), and careless driving,

75 Pa.C.S.A. § 1714. Appellant challenges the sufficiency of the evidence and,

in the alternative, seeks a new trial due to the Commonwealth’s failure to

present a witness concerning the chain of custody of a blood sample procured

from Appellant following his arrest. We affirm.

The trial court recounted the evidence as follows:

[Pennsylvania State] Trooper [George] Shimko testified that at

around 1:50 in the morning on April 7, 2019, he was driving

northbound on Route 72 when he observed a Ford F-150 with

Maryland registration 6EB 1031 in the opposing lane swerve over

the fog line. Trooper Shimko performed a U-turn and pulled up

behind the truck, whereupon he saw it driving mostly off the right

side of the road, over the fog line. Trooper Shimko activated the

emergency lights at that point and stopped the Ford. At trial he

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identified Appellant as the driver of the truck. While speaking with

Appellant, Trooper Shimko smelled the odor of alcohol, saw the

Appellant’s eyes were red and glassy, observed the Appellant’s

speech was slurring, and noticed the Appellant fumble with his

license and registration. Based on his training and experience in

the detection of impaired drivers and twenty-one (21) years in law

enforcement, Trooper Shimko initiated field sobriety tests.

Appellant told the Trooper that he had had surgery about a month

prior but that he would be able to stand and walk for the test.

Appellant agreed to perform the tests but lost his balance to the

point that Trooper Shimko stopped the walk and turn test for

Appellant’s safety. Trooper Shimko then placed Appellant under

arrest and transported him to Good Samaritan Hospital, where he

read Appellant the O’Connell Warnings at around 2:50 in the

morning. Appellant consented, and Samantha Yeagley performed

the blood draw at 3:06 a.m. Trooper Shimko then transported

the blood sample in the sealed kit to Jonestown State Police

Barracks and placed it into evidence to wait until it could be

transported to the Harrisburg State Police Lab.

Samantha Yeagley testified that she performed the blood draw of

Mark Andrews the morning of April 7th, 2019 according to her

training as a phlebotomist. She sealed the tube with Appellant’s

blood sample and tested the kit to make sure it was not

compromised and followed all other procedures consistent with

her training.

Trooper Vance testified that he transported the blood sample from

the Jonestown Barracks to the State Police Regional Lab in

Harrisburg on April 9th, 2019. When he removed it from the State

Police Barracks, he did not see any damage to the sample. When

he handed the sample over to the Harrisburg Lab, the kit was

undamaged and remained sealed. The receipt Trooper Vance

received from the Harrisburg Lab shows that Amy Leitzel was the

evidence technician who signed for the kit.

Caitlynne Brophy was qualified as an expert in forensic toxicology

at trial and testified that she tested Appellant’s blood sample. She

did not observe tampering or damage to the sample when she

took it into her custody, and the instruments she used were

calibrated and functioning properly. She tested the blood sample

using gas chromatography and ionization on April 11, 2019. Ms.

Brophy testified that she was able to determine that the BAC of

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the sample was 0.130 plus or minus 0.016. Exhibit No. 5 is the

lab report that Ms. Brophy generated in this case.

At the close of the Commonwealth’s case, Defense Counsel moved

for judgement of acquittal, which this Court denied. The Defense

did not present any witnesses. On the above summarized

testimony and admitted exhibits, the Court found Appellant guilty

on all counts.

Trial Court Opinion, 3/29/21, at 3-4 (citations omitted).

On September 2, 2020, the court imposed sentence. On September 14,

2020, Appellant filed a timely post-sentence motion, which was deemed

denied on behalf of the trial court by the Clerk of Courts pursuant to

Pa.R.Crim.P. 720(B)(3)(c) on January 27, 2021. On February 10, 2021,

Appellant filed a notice of appeal to this Court.

Before addressing the issues in Appellant’s brief, we examine whether

this appeal is timely. A notice of appeal must be filed within 30 days of the

entry of the order being appealed. Pa.R.A.P. 903(a). If the defendant files a

timely post-sentence motion, the notice of appeal shall be filed within 30 days

of the entry of the order deciding the motion. Pa.R.Crim.P. 720(A)(2)(a). A

trial court has 120 days to decide a post-sentence motion, and if it fails to

decide the motion within that period, the motion is deemed denied by

operation of law. Pa.R.Crim.P. 720(B)(3)(a). When the motion is deemed

denied by operation of law, the clerk of courts shall enter an order deeming

the motion denied on behalf of the trial court and serve copies on the parties.

Pa.R.Crim.P. 720(B)(3)(c). The notice of appeal shall be filed within 30 days

of the entry of the order denying the motion by operation of law. Pa.R.Crim.P.

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720(A)(2)(b). Here, the 120-day period for decision on Appellant’s post-

sentence motion expired on January 12, 2021. Instead of entering an order

deeming the motion denied on that date, the clerk of courts delayed entering

an order until January 27, 2021. This Court has held that a court breakdown

occurs when the trial court clerk fails to enter an order deeming post-sentence

motions denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(c).

Commonwealth v. Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007).

Moreover, the appeal herein was filed within thirty days of January 12, 2021.

Accordingly, this appeal is timely.

Appellant raises the following issues in this appeal:

1. Should the Appellant’s Motion for Judgement of Acquittal be

granted because the Commonwealth failed to prove beyond a

reasonable doubt that [his] BAC was over the legal limit of .08%

and that [he] was incapable of safe driving?

2. Should Appellant’s Motion for a New Trial be granted without

admission of the lab report where the Trial Court erred by

admitting the toxicology report over Appellant’s objection because

the Commonwealth failed to present the testimony of a Laboratory

Evidence Technician who took possession of Appellant’s sealed

blood specimen kit from Trooper Ralph Vance, checked the kit into

the laboratory, and secured the kit at the laboratory before

testing?

3. Should Appellant’s Motion for a New Trial be granted because

the Trial Court gave too great a weight to the toxicology report

where the Commonwealth failed to present testimony from a Lab

Evidence Technician who handled the blood sample when

establishing the change of custody?

Appellant’s Brief at 4.

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In his first issue, Appellant challenges the sufficiency of evidence

supporting his DUI convictions. Without supporting argument, he asserts in

boilerplate fashion, “[Appellant] asserts that the Commonwealth failed to

present sufficient evidence at trial that his BAC was over the legal limit and

that he was incapable of safe driving.” Appellant’s Brief at 11. Although the

lack of supporting argument likely constitutes a waiver of this claim, we will

address its substance because it is simple to resolve.

When we review challenges to the sufficiency of the evidence,

[o]ur standard of review is de novo, and our scope of review is

plenary, because:

a claim challenging the sufficiency of the evidence is a question of

law. ... When reviewing a sufficiency claim the court is required to

view the evidence in the light most favorable to the verdict winner

giving the prosecution the benefit of all reasonable inferences to

be drawn from the evidence.

Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa. Super. 2018).

“Evidence will be deemed sufficient to support the verdict when it establishes

each material element of the crime charged and the commission thereof by

the accused, beyond a reasonable doubt.” Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000).

The general impairment subsection of the DUI statute provides that

“[a]n 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.” 75 Pa.C.S.A. §

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3802(a)(1). Section 3802(a)(1) is an “at the time of driving” offense, i.e., an

offense requiring proof that the defendant was “driving, operating, or in actual

physical control of the movement of a vehicle during the time when he or she

was rendered incapable of safely doing so due to the consumption of alcohol.”

Section 3802(a)(1) permits multiple types of evidence to prove DUI-

general impairment, including BAC evidence:

The types of evidence that the Commonwealth may proffer in a

subsection 3802(a)(1) prosecution include but are not limited to,

the following: the offender’s actions and behavior, including

manner of driving and ability to pass field sobriety tests;

demeanor, including toward the investigating officer; physical

appearance, particularly bloodshot eyes and other physical signs

of intoxication; odor of alcohol, and slurred speech. Blood alcohol

level may be added to this list, although it is not necessary and

the two hour time limit for measuring blood alcohol level does not

apply. Blood alcohol level is admissible in a subsection 3801(a)(1)

case only insofar as it is relevant to and probative of the accused’s

ability to drive safely at the time he or she was driving. The weight

to be assigned these various types of evidence presents a question

for the fact-finder, who may rely on his or her experience,

common sense, and/or expert testimony. Regardless of the type

of evidence that the Commonwealth proffers to support its case,

the focus of subsection 3802(a)(1) remains on the inability of the

individual to drive safely due to consumption of alcohol—not on a

particular blood alcohol level.

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

The trial court correctly concluded that the evidence was sufficient to

support Appellant’s conviction for DUI-general impairment:

Trooper Shimko testified that he pulled the truck over after

observing it driving over the fog line, and that Appellant was the

driver. [Trooper] Shimko testified that he observed the Appellant

to have signs of intoxication such as bloodshot, glassy eyes, odor

of alcohol, slurred speech, and lack of coordinated movement in

the form of fumbling with documents and inability to maintain

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balance. While defense counsel did elicit testimony on cross

examination to show that no other drivers were made unsafe by

Appellant’s swerving away from oncoming traffic lane, the Court

reasons that the common sense meaning of “safe driving” includes

the safety of Appellant himself. Additionally, although evidence

of Appellant’s BAC is not necessary to prove general impairment,

Ms. Brophy’s testimony and the lab report of Exhibit No. 5, are

relevant and probative of Appellant’s incapability of safely driving

because a BAC of 0.13% is over the legal limit and that limit is set

by statute because a high BAC can cause unsafe driving. Taken

all together these facts are sufficient to prove Appellant was not

capable of safely driving due to the consumption of alcohol when

Trooper Shimko pulled him over, and therefore support the guilty

verdict under 75 Pa.C.S.A. §3802(a)(1).

Trial Court Opinion, 3/29/21, at 12.

The high rate of alcohol subsection of the DUI statute provides:

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.A. § 3802(b).

The trial court correctly reasoned that the evidence was sufficient to

support Appellant’s conviction under this subsection:

The Commonwealth offered evidence that Appellant was driving a

Ford F-150 truck and that his BAC was 0.13% within two hours of

driving that truck. Trooper Shimko testified that he pulled the

truck over at around 1:50 a.m. on April 7, 2019, and at trial

identified Appellant as the driver of the truck. [Trooper] Shimko

was present for Appellant’s blood draw at Good Samaritan

Hospital and testified that it occurred at 3:07 a.m., about an hour

and twenty minutes after Appellant stopped driving. Ms. Brophy’s

testimony about her test of Appellant’s blood, and the lab report

she generated, admitted as Exhibit No. 5, indicate that Appellant’s

BAC at the time of the blood draw was 0.13% (±.016%). These

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facts are sufficient to prove the two elements of 75 Pa.C.S.A. §

3802(b).

Trial Court Opinion, 3/29/21, at 9-10.

For these reasons, Appellant’s challenge to the sufficiency of the

evidence fails.

Appellant’s second issue is that the trial court erred in admitting the

Commonwealth’s toxicology report because the Commonwealth failed to

present the testimony of the laboratory evidence technician who took

possession of Appellant’s sealed blood specimen kit from Trooper Vance. Once

again, Appellant arguably has waived this issue by failing to present more than

boilerplate argument on this subject. See Appellant’s Brief at 12.

Assuming that Appellant did not waive this issue, it is devoid of merit.

‘‘The Commonwealth does not have to establish the sanctity of its exhibits

beyond a moral certainty; it is sufficient that the evidence allows a reasonable

inference that the identity and condition of the exhibits remained unimpaired

until they were surrendered to the court.” Commonwealth v. Miller, 371

A.2d 1362, 1365 (Pa. Super. 1977). “[A]ny issue regarding gaps in the chain

of custody relate to the weight of the evidence, not its admissibility.”

Commonwealth v. Whitmayer, 144 A.3d 939, 950 (Pa. Super. 2016).

“There is no rule requiring the prosecution to produce as witnesses all persons

who were in a position to come into contact with the article sought to be

introduced in evidence.” Commonwealth v. Jenkins, 332 A.2d 490, 492

(Pa. Super. 1974). A certifying scientist may testify to independent

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verification of chain of custody of a sample in his laboratory. Commonwealth

v. Yohe, 79 A.3d 520, 541 (Pa. 2013). Such testimony satisfies the

defendant’s rights under the Confrontation Clause. Id. The remote possibility

of potential misconduct at a laboratory does not entitle the defendant to

engage in a fishing expedition of every witness who handled a particular

sample. Id. at 542. If the defendant believes that mishandling took place,

he may subpoena anyone he deems appropriate to testify as to any alleged

error. Id.

In the present case, the Commonwealth presented testimony of the

phlebotomist who took the blood sample. The Commonwealth’s witnesses

took account of the blood sample from the time the sample was taken until its

delivery to the Harrisburg Regional Laboratory. Once at the lab, the individual

who tested the sample, Brophy, explained that the sample was properly

sealed, and that there was no evidence that the sample was compromised in

any way. This evidence demonstrates that the sample was properly sealed at

the hospital and remained sealed until it was analyzed. Defendant’s

symptoms and actions during the traffic stop corroborate the accuracy of the

testing. If Appellant wanted to uncover mishandling of the blood sample, he

could have called Amy Leitzel, the technician who received the kit from

Trooper Vance, as a witness. Appellant did not do so. For these reasons,

Appellant’s challenge to the chain of custody fails.

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Finally, Appellant claims that a new trial is warranted because the

alleged defect in the chain of custody of his blood sample shocks the

conscience. We disagree.

Our Supreme Court has instructed as follows:

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. 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. Rather, the role of

the trial judge is to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to ignore them

or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). This Court

does not step into the shoes of the trial court to revisit whether the verdict

was against the evidence. Rather, our task is to “analyze whether the trial

court abused its discretion by reaching a manifestly unreasonable judgment,

misapplying the law, or basing its decision on partiality, prejudice, bias, or ill-

will.” Id. at 1056. A new trial should only be awarded “when the jury’s verdict

is so contrary to the evidence as to shock one’s sense of justice and the award

of a new trial is imperative so that right may be given another opportunity to

prevail.” Id. at 1055; see Commonwealth v. Konias, 136 A.3d 1014, 1022

(Pa. Super. 2016) (applying same standard to bench trial).

Here, the trial court acted within its discretion by determining that a

new trial was not necessary. The basis upon which Appellant seeks a new

trial, the chain of custody issue, does not entitle him to relief because there

was substantial evidence that his blood sample was not compromised. The

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trial court properly determined that the evidence on this subject did not shock

its conscience.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2021

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