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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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