Com. v. Shaffer, M.

J-S29021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MARK DARREN SHAFFER :

:

Appellant : No. 1362 WDA 2021

Appeal from the Judgment of Sentence Entered March 10, 2016

In the Court of Common Pleas of Clearfield County

Criminal Division at CP-17-CR-0000314-2015

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 26, 2022

Mark Darren Shaffer (Appellant) appeals from the judgment of sentence

imposed after a jury convicted him of one count each of drug delivery resulting

in death (DDRD), involuntary manslaughter, recklessly endangering another

person, delivery of a controlled substance, and possession of a controlled

substance.1 Upon careful consideration, we affirm.

The trial court summarized the factual history as follows:

[On July 18, 2014, Appellant,] … Ryan Rhone [(Rhone or the

Victim),] and Tammy McGarvey [(McGarvey)] were camping at

the Curwensville Moose Family Center Campground (hereinafter

“Campground”). On [that] evening … and into the early morning

hours of July 19, 2014, [Appellant] and Rhone went to the bar at

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2506(a), 2504(a), 2705; 35 P.S. §§ 780-113(a)(30) and

(a)(16).

J-S29021-22

the Campground, where Rhone continued consuming alcohol.1

[Appellant] and Rhone then left the bar and drove back to their

campsite. At some point, [Appellant] began to inject heroin, while

parked in Rhone’s vehicle at the Campground. [Appellant] had

ten bags of heroin, and he injected eight of those bags; Rhone

consumed one of the bags from [Appellant’s] bundle, and

[Appellant] kept the remaining bag. Almost immediately after

ingesting the heroin, Rhone became unresponsive. [Appellant]

alerted McGarvey, who was asleep in the camper, and she began

CPR while [Appellant] called 911.

1 The testimony revealed that Rhone had consumed

approximately six beers prior to going to the bar with

[Appellant]. There was no testimony that [Appellant]

had been consuming alcohol.

Prior to emergency personnel arriving at the Campground,

[Appellant] left the camp site, and McGarvey continued the

resuscitation attempts alone. The paramedic and emergency

personnel arrived and transported Rhone to Penn-Highlands

Clearfield Hospital. Despite medical personnel’s numerous

attempts to keep Rhone’s heart beating at a steady pace, Rhone

was ultimately taken off life-support and passed away later that

evening on July 19, 2014. An autopsy was performed, and as a

result, the Coroner listed the cause of death as a multi-drug

overdose.

Trial Court Opinion, 1/14/22, at 1-2 (footnote in original).

In April 2015, the Commonwealth charged Appellant with the

abovementioned crimes. The matter proceeded to a jury trial in January 2016.

Relevant to this appeal, the Commonwealth successfully introduced into

evidence, over Appellant’s objection, a forensic toxicology report (NMS report)

that was prepared by Denice Teem (Teem) with respect to the Victim. See

N.T., 1/25/16, at 116-17, 163; see also id. at 120 (trial court qualifying Teem

as an expert in the field of toxicology, without objection). Teem is a forensic

“certifying scientist” employed by National Medical Services Labs (NMS Labs).

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Id. at 115 (Teem explaining, “a certifying scientist will review all the

laboratory data and review the case as a whole from start to finish, … ensuring

that all testing procedures were done properly and documented.”). On cross-

examination, Teem conceded she did not personally perform or observe the

forensic tests of the Victim’s blood and urine that were referenced in the NMS

Labs report. Id. at 127.

After the close of evidence, Appellant requested certain jury instructions

regarding DDRD and the requisite mens rea for a conviction (Appellant’s

requested instructions).2 See N.T., 1/26/16, at 140-50. The trial court denied

Appellant’s request, id. at 150, and instead read to the jury the standard jury

instruction with respect to DDRD, Pa.SSJI (Crim.) 15.2506. See also N.T.,

1/26/16, at 203-05. The jury convicted Appellant of all counts.

____________________________________________

2 The trial court explained:

In [Appellant’s] first proposed instruction, he requested the pre-

September 7, 2011[, Pennsylvania suggested] standard instruction

for DDRD, [see Pa.SSJI (Crim.) 15.2506,] with the addition of the

standard instruction for causation in homicide cases. In [Appellant’s]

second proposed instruction, he requested the post-September 7,

2011 standard instruction for DDRD with the addition of the standard

instruction for causation in homicide cases and the culpability

instruction required by Section 302(a) and (c) of the Pennsylvania

Crimes Code. In [Appellant’s] third proposed instruction, [Appellant]

requested the post-September 7, 2011 standard instruction for

DDRD, with the addition of the standard instruction for causation in

homicide cases and the addition of a “probable consequence”

instruction required by Section 303(d) of the Pennsylvania Crimes

Code.

Trial Court Opinion, 1/14/22, at 4-5; see also N.T., 1/26/16, at 140-50.

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On March 10, 2016, the trial court sentenced Appellant to 9½ - 20 years

in prison.3 Appellant filed a post-sentence motion on March 17, 2016.

Appellant sought, inter alia, judgment of acquittal with respect to his

convictions of DDRD and involuntary manslaughter. The trial court conducted

a hearing, and denied Appellant’s motion on August 8, 2016. Appellant timely

filed a notice of appeal on August 23, 2016. This Court subsequently

dismissed the appeal for Appellant’s counsel’s failure to file a brief.

Commonwealth v. Shaffer, 1274 WDA 2016 (Pa. Super. Apr. 21, 2017) (per

curiam order).

On May 15, 2017, Appellant timely filed a pro se petition pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant’s

claims, as well as the complex procedural history that ensued, are not relevant

to this appeal. See, e.g., Trial Court Opinion, 1/14/22, at 2-3 (setting forth

procedural history, and describing it as “perplexing”). On November 9, 2021,

the PCRA court reinstated Appellant’s direct appeal rights, nunc pro tunc, and

directed Appellant to file a notice of appeal within five days of the order.

Order, 11/9/21; see also Trial Court Opinion, 1/14/22, at 3 n.6 (observing,

“the Commonwealth stated it was unopposed to reinstating [Appellant’s]

____________________________________________

3The court imposed this sentence solely on Appellant’s conviction of DDRD,

as the remaining convictions merged for sentencing purposes.

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direct appeal rights.”). Appellant timely filed a notice of appeal.4 Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents four issues for our consideration:

1. Whether the evidence presented and properly admitted at trial

was sufficient to sustain a conviction on the charges of drug

delivery resulting in death and involuntary manslaughter[?]

2. Whether the trial court erred when it failed and/or refused to

include any culpability requirement for the offense of drug

delivery resulting in death, in the court’s closing instructions

to the jury[?]

3. Whether the trial court erred when it failed and/or refused to

include any causation requirement for the offense of drug

delivery resulting in death, in the court’s closing instructions

to the jury[?]

4. Whether the trial court erred when if [sic] admitted the NMS

lab report (victim’s blood test results) into evidence at trial

over [Appellant’s] objection[?]

Appellant’s Brief at 7 (unnecessary capitalization omitted).

In his first issue, Appellant argues the Commonwealth failed to present

sufficient evidence for the jury to find him guilty beyond a reasonable doubt

of DDRD and involuntary manslaughter. See id. at 13-16 (unnumbered).

Appellant contends the Commonwealth failed to prove he had the requisite

____________________________________________

4 Appellant’s notice of appeal incorrectly stated that he was appealing the trial

court’s August 8, 2016, order denying his post-sentence motions. See also

Appellant’s Brief (same). It is settled that an “appeal from an order denying

a post-trial motion is procedurally improper because a direct appeal in a

criminal proceeding lies from the judgment of sentence.” Commonwealth

v. Gilliam, 249 A.3d 257, 264 n.5 (Pa. Super. 2021).

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mens rea to be convicted of DDRD, see id. at 13-15 (unnumbered), and

further claims, “there is insufficient evidence” that the heroin Appellant gave

the Victim at the Campground “was the ‘but for’ cause of the [V]ictim’s death.”

Id. at 15 (unnumbered).

Our standard of review of a sufficiency of the evidence claim is,

whether the evidence admitted at trial, and all reasonable

inferences drawn from that evidence, when viewed in the light

most favorable to the Commonwealth as verdict winner, were

sufficient to enable the fact finder to conclude that the

Commonwealth established all of the elements of the offense

beyond a reasonable doubt.

Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super. 2013) (citation and

brackets omitted).

We first address whether Appellant preserved this claim. To “preserve a

sufficiency claim, the Rule 1925(b) statement must specify the element or

elements upon which the evidence was insufficient.” Commonwealth v.

Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020) (emphasis added); see also

Commonwealth v. Carr, 227 A.3d 11, 18 (Pa. Super. 2020) (same).

Specificity is of “particular importance” in cases where, as in the instant

appeal, “the [a]ppellant was convicted of multiple crimes[,] each of which

contains numerous elements that the Commonwealth must prove beyond a

reasonable doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

Super. 2009). If the appellant does not specify such elements, the sufficiency

claim is waived. Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa.

Super. 2017) (a “Rule 1925(b) statement’s failure to specify the allegedly

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unproven elements of the crimes result[s] in the waiver of the sufficiency

issue.”); see also Carr, 227 A.3d at 18 (same).

Here, Appellant raised a boilerplate sufficiency challenge that did not

specify the element or elements of DDRD or involuntary manslaughter.

See Statement of Matters Complained of on Appeal, 12/10/21, (issue 4).

Based upon this deficiency, the trial court determined Appellant waived his

sufficiency claims. See Trial Court Opinion, 1/14/22, at 8-9 (citing Carr,

supra). Upon review, we are constrained to agree that Appellant has waived

his first issue. See Carr, supra; Roche, supra.

Appellant addresses his second and third issues together. See

Appellant’s Brief at 16-19. Appellant argues the trial court erred in declining

to give the jury his requested instructions, see n.2, supra, as to DDRD and

the requisite mens rea for a conviction. See Appellant’s Brief at 16-19.

Appellant contends,

the delivery of a jury charge that included a statement and

explanation of the need to find both reckless conduct associated

with the resulting death, and a “but for” causal nexus[,] as

requested by [Appellant,] … would have more accurately and

clearly stated what the law is.

Id. at 19. Appellant claims the trial court’s failure “to provide such instruction

to the jury … was arbitrary” and “overlooked or ignored” this Court’s holding

in Commonwealth v. Kakhankham, 132 A.3d 986, 988 (Pa. Super. 2015),

which we discuss below. Appellant’s Brief at 19.

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“We review a trial court’s refusal to give a specific jury instruction for an

abuse of discretion or error of law.” Commonwealth v. Brown, 200 A.3d

986, 992 (Pa. Super. 2018) (citation omitted). “The trial court has broad

discretion in its phrasing of jury instructions so long as the issue is adequately,

accurately, and clearly presented to the jury for its consideration.” Id.

(citation and quotations omitted); see also Commonwealth v. Trippett,

932 A.2d 188, 200 (Pa. Super. 2007) (a trial court, in issuing jury instructions,

“may choose its own wording so long as the law is clearly, adequately, and

accurately presented to the jury for its consideration.” (citation omitted)).

Where a trial court’s jury instructions “closely track[] the language in the

Pennsylvania Standard Criminal Jury Instructions, [] it is presumed that such

instructions are an accurate statement of the law.” Commonwealth v.

Kerrigan, 920 A.2d 190, 198 (Pa. Super. 2007) (citing Commonwealth v.

Prosdocimo, 578 A.2d 1273, 1276-77 (Pa. 1990)).

The trial court rejected Appellant’s claim, and provided the following

detailed explanation:

[Appellant] takes particular issue with the fact that [18

Pa.C.S.A. §] 2506[, i.e., the statute defining DDRD,] fails to

specifically prescribe culpability regarding the phrase “that a

person has died as a result of using the substance.” Pa.SSJI

(Crim), § 15.2506. [Appellant] argued that the court should have

instructed the jury regarding “malice,” despite the 2011

amendment to Section 2506. [See 18 Pa.C.S.A. § 2506, History.]

Prior to September 7, 2011, Section 2506 classified DDRD as

third[-]degree murder. Further, as reasoned in Commonwealth

v. Ludwig, DDRD is specifically “defined by the Legislature as

murder of the third degree…. [T]he culpability required for third

degree murder [is] malice.” [Ludwig,] 874 A.2d 623, 630 (Pa.

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2005) [(superseded by statute as stated in Commonwealth v.

Graham, 196 A.3d 661, 663 n.4 (Pa. Super. 2018))]. However,

following September 6, 2011, this phrase was amended to read

“[a] person commits a felony of the first degree….” 18 Pa.C.S. §

2506(a). [This amended statute applied to Appellant, who

committed the crimes in July 2014.]

As stated in Commonwealth v. Kemp, “a discussion of

House Bill 396 (of April 27, 2011), makes it clear that the

Legislature deliberately changed the wording to remove the mens

rea of malice and did so with the intention of making it easier to

convict and impose greater penalties on individuals who sold

drugs when those drugs resulted in the death of another.” 195

MDA 2015, 2015 WL 7187177, at *[10] (Pa. Super. Nov. 16,

2015) [(unpublished memorandum) (footnote omitted)]. Further,

the Superior Court of Pennsylvania reasoned [in a published

decision] that Section 2506 is not unconstitutionally vague, in that

the mens rea “required is ‘intentionally’ doing one of the acts

described therein, namely administering, dispensing, delivering,

giving, prescribing, selling or distributing any controlled substance

or counterfeit controlled substances.” Commonwealth v.

Kakhankham, 132 A.3d 986, 992 (Pa. Super. 2015). The

Superior Court went on to consider the purpose of the statute, the

severity of the punishment, and its common law origin, and it

determined that the statute does not create absolute liability, but

instead is governed by Section 302(c) of the Crimes Code, which

states that the victim’s death must be at least “reckless.”

Kakhankham, 132 A.3d at 995.

Here, the [trial] court did not err by giving the standard jury

instruction for DDRD. The court’s instruction did not deviate

from the standard instruction as set out by the Supreme Court

of Pennsylvania, and it clearly stated the law regarding

Section 2506. While the court did not specifically give an

instruction for recklessness for DDRD, as prescribed in

Kakhankham, the court did give a recklessness instruction

in regards to the offense of involuntary manslaughter.

[See N.T., 1/26/16, at 205-06]. The recklessness instruction was

specifically in reference to [Appellant] giving the Victim heroin

that resulted in the Victim’s death. This is similar to

Commonwealth v. Samuels, 778 A.2d 638 (Pa. [] 2001). In

Samuels, the trial court did not instruct the jury on criminal

negligence in regards to homicide by vehicle — DUI related;

however, the Superior Court determined that the error, if any at

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all, was harmless because the jury was instructed on criminal

negligence in regards to involuntary manslaughter, for

which the defendant was found guilty. Id. at 641 [(“Under

the harmless error doctrine, we will affirm the judgment of

sentence in spite of error by the trial court if we conclude beyond

a reasonable doubt that the error did not contribute to the

jury’s verdict.”); see also Commonwealth v. Hairston, 84 A.3d

657, 671 (Pa. 2014) (harmless error exists where “the record

demonstrates [that] … the error did not prejudice the defendant

or the prejudice was de minimis”).] Thus, even if the court erred

in failing to give a recklessness instruction for DDRD, the error

was harmless because it would not have changed the outcome of

the trial, primarily because the jury convicted [Appellant] of

involuntary manslaughter, which required a finding of

recklessness.

[Appellant] also argued that the jury should have been

given additional instructions regarding the causation of death.

However, as stated in Kakhankham, Section 2506 “uses the

phrase ‘results from,’ a concept which is defined also in the Crimes

Code…. The statute, therefore, is clear as to the level of causation.

It requires a ‘but-for’ test of causation.” Kakhankham, 132 A.3d

at 992-93. See also 18 Pa.C.S. § 303(a) (“Conduct is the cause

of a result when: (1) it is an antecedent but for which the result

in question would not have occurred; and (2) the relationship

between the conduct and result satisfies any additional causal

requirements imposed by this title or by the law defining the

offense.”). Accordingly, the statute prescribes the type of

culpability required for the offense, so [Appellant’s]

proposed additional instructions regarding causation were

not appropriate.

Trial Court Opinion, 1/14/22, at 5-7 (emphasis added; some capitalization

altered).

Our review confirms the trial court’s cogent assessment of the record

and applicable law, and we discern no error of law or abuse of discretion by

the court in declining to give Appellant’s requested instructions. The court

properly instructed the jury regarding the elements of DDRD. See Brown,

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supra; see also Commonwealth v. Watley, 699 A.2d 1240, 1245-46 (Pa.

1997) (holding the “mere fact that a defendant may believe that further

explanation would have been beneficial does not render a [jury] charge

defective.”). Accordingly, Appellant’s second and third issues do not merit

relief.

In his final issue, Appellant claims the trial court erred in admitting the

NMS Labs report into evidence, in violation of Appellant’s constitutional right

to confront his accuser. See Appellant’s Brief at 19-22. Appellant complains

Teem “was not the person who performed the tests [detailed in the NMS Labs

report], nor was she present to observe the results, although she testified that

a report of the test data was available for her to read and consult.” Id. at 21;

see also id. at 20 (arguing Teem’s “presentation was ‘testimonial’ in nature”).

Whether Appellant’s rights under the Confrontation Clause were violated

by the admission of the NMS Labs report is a question of law, for which our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Brown, 185 A.3d 316, 324 (Pa. 2018) (plurality).

The Confrontation Clause of the Sixth Amendment, made

applicable to the States via the Fourteenth Amendment, provides

that “in all criminal prosecutions, the accused shall enjoy the right

… to be confronted with the witnesses against him….” In

Crawford [v. Washington, 541 U.S. 36 (2004)], the Court held

that the Sixth Amendment guarantees a defendant’s right to

confront those “who bear testimony” against him, and defined

“testimony” as “a solemn declaration or affirmation made for the

purpose of establishing or proving some fact.” [Id. at 51.] The

Confrontation Clause, the High Court explained, prohibits out-of-

court testimonial statements by a witness unless the witness is

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unavailable and the defendant had a prior opportunity for cross-

examination.

Commonwealth v. Yohe, 79 A.3d 520, 530-31 (Pa. 2013) (footnotes and

some citations omitted).

We review a challenge to the admissibility of evidence as follows:

The admissibility of evidence is a matter for the discretion

of the trial court and a ruling thereon will be reversed on appeal

only upon a showing that the trial court committed an abuse of

discretion. An abuse of discretion may not be found merely

because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as

to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

The trial court in the instant appeal opined that it did not err in admitting

the NMS Labs report, and no violation of Appellant’s confrontation rights

occurred. The court reasoned:

[I]n light of Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013),

the NMS [L]abs report was properly admitted. The Supreme Court

of Pennsylvania was faced with a confrontation clause issue [in

Yohe], much like the claim asserted by [Appellant] in this case.

In Yohe, the Commonwealth presented testimony and an

accompanying lab report by Dr. Lee Blum, a toxicologist and

assistant laboratory director at NMS Labs. Id. at 523-24. “As

Assistant Lab Director, [Dr. Blum] is responsible for the lab’s

quality assurance program and client service. As a forensic

toxicologist, … he receives the raw data that resulted from the

three blood tests, checks the demographic information on the

testing data, evaluates the chain of custody, and verifies that the

lab technicians performed the appropriate testing.” Id. at 523.

Based on the procedure that Dr. Blum testified to, the Supreme

Court held the following:

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Dr. Blum’s expert opinion was contained in the

Toxicology Report and was the result of his

independent verification of the chain of custody and

his independent analysis of the three test results

produced by two lab technicians running two types of

tests at different times. We agree … that the

testimonial document was the certified Toxicology

Report prepared and signed by Dr. Blum, and the

Commonwealth met its obligation to present the

analyst who signed the certificate to testify at trial….

Yohe, 79 A.3d at 541.

In this matter, Teem, the certifying scientist at NMS

Labs, testified that she authored the report in question. She

further testified at length regarding the processes involved in

testing the [Victim’s] blood and urine samples, including the types

of testing done, the specific procedures of the testing, and who

performed the tests. Teem also testified that she reviewed

the raw data from each of the tests, and she verified that

the raw data had been reviewed by additional associates to

ensure that it was accurate prior to testifying.7 For these

reasons, the [c]ourt believes that [Appellant’s] right to

confrontation as to the NMS Lab Report was not violated. Further,

there was no error in admitting the NMS lab report because the

Commonwealth presented the author of the report for

questioning by [Appellant].

7 It is important to note that Teem testified that in some

instances (not in this case) she does not “review every

single piece of raw data” before she signs a report, but

that she always has access to it for review in the event

something does not appear to be accurate.

Trial Court Opinion, 1/14/22, at 7-8 (footnote 7 in original; emphasis added).

Upon review, we agree with the trial court’s reasoning, which is

supported by the record and the law. Contrary to Appellant’s claim and

consistent with Yohe, the Commonwealth produced Teem to testify and

submit to cross-examination; this satisfied Appellant’s confrontation rights,

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even though the Commonwealth did not present testimony from the NMS Labs

technicians who performed the tests. The record reflects that Teem’s report,

like the report in Yohe,

did not simply parrot another analyst; rather, [Teem] was

involved with reviewing all of the raw testing data, evaluating the

results, measuring them against lab protocols to determine if the

results supported each other, and writing and signing the report.

Indeed, it was [Teem] who ultimately certified [the Victim’s

toxicology report results,] and it was [Teem] who was cross-

examined as to this conclusion.

Yohe, 79 A.3d at 541 (internal citation omitted).

For the above reasons, we discern no abuse of discretion or error by the

trial court, and affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/26/2022

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