February 19, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
HECTOR JULIO LARA, Appellant
Appeal from the Judgment of Sentence June 26, 2012, Court of Common Pleas, Northumberland County, Criminal Division at No. CP-49-CR-0000513-2010
BEFORE: DONOHUE, OTT and PLATT [*] , JJ.
Hector Julio Lara ("Lara") appeals from the June 26, 2012 judgment of sentence entered by the Northumberland County Court of Common Pleas. Upon review, we affirm.
In the early morning hours of January 30, 2010, Pennsylvania State Police conducted a stop of Lara's vehicle based upon a suspicion that he was driving under the influence of alcohol ("DUI"). Specifically, police observed Lara driving between 10 and 15 miles per hour below the posted speed limit; swerve and weave within his lane of travel; change lanes without providing sufficient signaling notice to other drivers; signal far in advance of making a left turn; and drive down the middle of a roadway. Upon approaching the vehicle, police noted a strong odor of alcoholic beverages emanating from Lara's breath. Police further observed Lara's eyes were glassy and bloodshot.
After performing unsatisfactorily on several field sobriety tests, police placed Lara under arrest for DUI. Police transported Lara to Evangelical Community Hospital where Lara consented to a blood draw. The blood sample was transported to Laboratory Corporation of America ("Lab Corp"), which tested Lara's blood on February 2, 2010. Lab Corp's testing revealed a blood alcohol content ("BAC") of .136 percent.
On May 11, 2010, the Commonwealth charged Lara by criminal information with DUI – general impairment, DUI – high rate of alcohol, careless driving, and disorderly conduct. The case proceeded to a bench trial before the Honorable Robert B. Scavage on April 28 and June 16, 2011. At trial, Lara called into question the procedures employed by Lab Corp to test his blood sample and presented expert testimony to support his contention that the BAC found by Lab Corp was unreliable. Following the receipt of post-trial submissions by both parties, the trial court filed an order on March 30, 2012 finding Lara guilty of careless driving, DUI – general impairment, and DUI – high rate of alcohol. It sentenced Lara on June 26, 2012 to 48 hours to six months of imprisonment, to participate in evaluations and programs, and to pay costs and fees.
Lara filed a post-sentence motion the same day raising challenges to weight and sufficiency of the evidence to support his convictions, including, inter alia, the weight of the evidence to support a finding that his BAC as reported by Lab Corps was valid. In support of his motion, he relied on the post-trial submission that he provided to the trial court in advance of the trial court's verdict. The trial court denied the motion on June 27, 2012. On October 15, 2012, Lara filed a motion for permission to file a direct appeal nunc pro tunc, averring that he did not receive notice of the trial court's denial of his post-sentence motion. The trial court granted Lara's request on March 13, 2013, following which Lara filed a timely notice of appeal nunc pro tunc and complied with the trial court's order for a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On July 17, 2013, the trial court filed a statement in lieu of an opinion pursuant to Pa.R.A.P. 1925(a), stating that its March 30 order finding Lara guilty adequately addressed the issues raised in Lara's 1925(b) statement.
On appeal, Lara raises two issues for our review:
1. […] Did the trial court abuse its discretion when it did not properly address Lara's weight claims?
2. […] Given Lara's chemical test deficiencies and the overwhelming nature of his unrebutted scientific evidence – does Lara's verdict shock one's sense of justice?
Lara's Brief at 5-6.
As his first issue on appeal, Lara contends that we must remand the case to the trial court for it to rule on the weight of the evidence claim raised in his post-sentence motion regarding the adequacy of Lab Corp's BAC testing procedures. Id. at 22-25; see Post-Sentencing Motion, 6/26/12, at Appendix 1. In support of his argument, he cites Commonwealth v. Brown, 538 Pa. 410, 436, 648 A.2d 1177, 1190 (1994) ("Because of a disparity in vantage points[, ] an appellate court is not empowered to merely substitute its own opinion concerning the weight of the evidence for that of the trial judge."), and Commonwealth v. Ragan, 653 A.2d 1286, 1288 (Pa.Super. 1995) ("where an appellant challenged the weight of the evidence but the trial court did not address the issue, the appellate court could not take silence as an implicit denial of the claims, but were [sic] required to remand for proper consideration"). Lara's Brief at 22-23.
Initially, we note that both of the cases relied upon involved jury trials. In contrast, the case at bar was a bench trial, where the trial judge sits as fact-finder, and it is his role to assign the appropriate weight to the evidence presented in the first instance. See, e.g., Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa.Super. 2006).
Moreover, contrary to Lara's representation that the trial court's order addressed only the sufficiency and admissibility of the evidence, see Lara's Brief at 22-24, our review of the trial court's March 30, 2012 order reveals that it expressly ruled upon the weight of the evidence presented. Specifically, the trial court found, in relevant part, that although Lara presented testimony alleging that the testing procedure employed by Lab Corps was deficient, this did not trump the evidence presented by the Commonwealth that the testing methods employed Lab Corps met the requirements of Pennsylvania's chemical testing guidelines. Trial Court Order, 3/30/12, at ¶ 1; see Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa.Super. 2009) ("An argument that the finder of fact should have credited one witness' testimony over that of another witness goes to the weight of the evidence, not the sufficiency of the evidence."). The trial court reached this conclusion after reviewing Lara's Post-Trial Bench Memo Regarding Scientific Evidence, the very same memo that Lara relied upon in support of his post-sentence motion. See Post-Sentencing Motion, 6/26/12, at ¶ 7 ("[Lara's] position on the weight and sufficiency of the evidence has been expounded upon in great detail within the attached brief at Appendix 1."). As the trial court, who sat as fact-finder, addressed in its March 30 order the weight of the evidence claim raised by Lara in his post-sentence motion, we find no basis to remand the case for an additional decision on the same topic.
As his second issue on appeal, Lara asserts that the trial court erred by convicting him of DUI – high rate of alcohol, as a finding that his BAC was between .10% and .16% was against the weight of the evidence presented. Lara's Brief at 26-45. In his brief on appeal, Lara details each of the alleged problems with the testing procedure identified by his analytical chemistry expert, Dr. Lee Polite, which include:
. Lara's sample shows demonstrable contamination in the form of carryover that results in an unknown amount of 'extra' BAC that is not due to his drinking.
. Lara's chain of custody shows significant unaccounted for holding time.
. Lara's sample was totally unaccounted for over 2 days.
• [Gas chromatograph] single point calibration is insufficient as calibration method.
. The Commonwealth failed to show the [gas chromatograph] instrument held its calibration through the run of Lara's sample.
. There are no blanks between unknowns to demonstrate that there was no carryover.
• Single column analysis is not forensically acceptable. Lara's case does not involve a correct dual-column method of analysis.
. The Commonwealth failed to tell the trial court which type of column it used in Lara's chemical test.
. The peaks in Lara's sample show unidentified peaks at retention times and unidentified reported chemicals that are most consistent with neo-formation of ethanol post-collection.
. All controls (except two vials) reported greater results than what the true result should have been. Hence, the BAC results were over-reported.
. A chromatogram that had a specimen number from an entirely different person typed on it by the computer was crossed out, and instead Lara's specimen number was handwritten in its palce [sic] and reported out. It is unclear to which sample (Lara's or someone else's) the data for that result belongs to.
• The essential proof of separation of ethanol to make for a valid BAC was missing. Hence, the qualitative result (its ethanol) is not proven.
. There was ethanol in what is supposed to be ethanol free balnks [sic] that per the testimony of the testing personnel invalidates the result.
. There was no proof of proper refrigeration of the sample to prevent an artificial increase in the BAC.
Lara's Brief at 27-29 (citations to reproduced record omitted).
As stated hereinabove, the trial court found that Lab Corp's adherence to the requirements of Pennsylvania's chemical testing guidelines outweighed Lara's expert's testimony regarding his perceived problems with the procedure employed to test Lara's blood sample. Trial Court Order, 3/30/12, at ¶ 1. The trial court further found that Lara's underlying argument is that Pennsylvania's BAC testing requirements "are deficient in some regard, " which the trial court found was not a question properly before it. Id.
We review a weight of the evidence claim according to the following standard:
A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice. On review, an appellate court does not substitute its judgment for the finder of fact and consider the underlying question of whether the verdict is against the weight of the evidence, but, rather, determines only whether the trial court abused its discretion in making its determination.
Commonwealth v. Lyons, Pa., 79 A.3d 1053, 1067 (2013) (internal citations omitted).
"In general, BAC tests are basic and routine and, therefore, highly reliable. The Pennsylvania Department of Health approves laboratories to perform BAC tests. The Department's careful and thorough methods serve to ensure that test results from an approved facility are valid and reliable." Commonwealth v. Demark, 800 A.2d 947, 952 (Pa.Super. 2002) (citations and quotation omitted). Where the trial court accepts evidence of a laboratory's certification in the Pennsylvania Department of Health's Bulletin as an approved site to conduct BAC testing, this creates a rebuttable presumption that the BAC test results are valid. Commonwealth v. Renninger, 682 A.2d 356, 359 (Pa.Super. 1996). A presumptively valid result means that the BAC test was performed at a lab that was licensed and approved by the Department of Health on a device approved by the Department of Health, using procedures prescribed by regulations of the Departments of Health and Transportation. 75 Pa.C.S.A. § 1547(c)(1)-(3)(i); see Demark, 800 A.2d at 953 ("Publication in the Pennsylvania Bulletin and judicial notice thereof satisfy the requirements of 75 Pa.C.S.A. § 1547(c)."). The defendant may then present his or her own evidence in an attempt to show that the results were not reliable. Renninger, 682 A.2d at 359.
In the case at bar, it is uncontested that Chem Lab is licensed and approved by the Pennsylvania Department of Health to conduct BAC testing. N.T., 4/28/11, at 119-20; see Lara's Brief at 24. The record reflects that Nataliya Krainyk ("Krainyk"), the Chem Lab technician who tested Lara's blood sample, testified to the procedure she used to test the sample in question and that there were no deficiencies in her analysis. N.T., 4/28/11, at 59-60. She explained that any ethanol found in the controls and blanks were within a permissible range. Id. at 36, 44-47, 90-91. Krainyk testified that although there was some carryover between samples, it was a negligible amount (0.00001 percent), and that carryover is only suggestive of an incorrect procedure if it was a significant amount, which it was not in this case. Id. at 87-88, 94. Krainyk acknowledged that she did make one mistake, erroneously labeling Lara's "repeat specimen" result with another individual's specimen number, but stated that she caught it and corrected the mistake. Id. at 60.
According to the testimony of Joseph Watson ("Watson"), the Commonwealth's analytical chemistry expert and Chem Lab's laboratory manager at the time of the BAC testing in question, the procedure utilized to test Lara's blood sample was in conformance with the procedures required by the Pennsylvania Department of Health. Id. at 120. He had no concerns about the chain of custody, and indicated that the shipping of the sample from the hospital to the laboratory was done pursuant to their standard operating procedure. Id. at 115-16, 172-73, 190-91. Watson further testified that although there was no separation matrix conducted at the time this batch of samples were tested, Chem Lab does so three to four times per year, and yields acceptable results for the Pennsylvania Department of Health. Id. at 188-89.
The trial court heard all of the testimony presented by both parties and found that the Commonwealth's evidence that the procedures utilized were in compliance with the Pennsylvania Department of Health's regulations outweighed Dr. Polite's testimony and opinion that the procedures utilized were deficient. As the record supports the trial court's determination, we find no abuse of discretion in its ruling on Lara's weight of the evidence claim. See Lyons, __ Pa. at __, 79 A.3d at 1067.
In the argument section of his brief, Lara includes a third issue - that the Commonwealth presented insufficient evidence to convict him of DUI -general impairment. Lara's Brief at 46-49. This issue does not appear in the statement of questions involved section of his brief, and is therefore waived. Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."); Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa.Super. 2012).
Judgment of sentence affirmed.