NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 J.A27032/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : CORY DAVID WONDER, : : Appellant : No. 40 MDA 2013 Appeal from the Judgment of Sentence October 15, 2012 In the Court of Common Pleas of Cumberland County Criminal Division No(s).: CP-21-CR BEFORE: BENDER, P.J., WECHT, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED JUNE 30, 2014 Appellant, Cory David Wonder, appeals from the judgment of sentence entered in the Cumberland County Court of Common Pleas following his convictions for driving under the influence ( DUI ), general impairment 1 and DUI, highest rate of alcohol. 2 He contends the Commonwealth presented expert testimony without giving prior notice and thus he was precluded from presenting rebuttal expert witnesses. Appellant also challenges the weight of the evidence. We affirm. * Former Justice specially assigned to the Superior Court Pa.C.S. 3802(a)(1) Pa.C.S. 3802(c).

2 J. A27032/13 court: We adopt the facts and procedural history as set forth by the trial On June 23, 2011, at 1:20 A.M., Officer Craig M. Dunn of the Shippensburg Borough Police Department was on general patrol in the Borough of Shippensburg, Cumberland County. At approximately 1:21 A.M., Officer Dunn observed a vehicle traveling at a high rate of speed from an intersection. Officer Dunn did not activate his patrol vehicle s lights or siren but did attempt to catch up with the vehicle to identify its registration plates. He pursued the vehicle through another intersection controlled by a stop sign, where it again accelerated at a high rate of speed. Officer Dunn believed that the vehicle had not stopped sufficiently at that intersection. Based on the distance, however, he could not establish with certainty whether the vehicle had or had not stopped at the intersection. Officer Dunn could not see inside the suspect vehicle. Officer Dunn followed the vehicle into an alleyway, lost sight of it for approximately ten seconds, and upon regaining view of it, saw the vehicle sitting stationary about fifteen to twenty yards behind a residential apartment building. As Officer Dunn pulled up, he observed the vehicle s lights being operated. He observed the vehicle s headlights, which were on, being turned off. He also observed the vehicle s dome light, which was off, being turned on. An individual, later identified as [Appellant], was standing outside the vehicle at its open driver s side door. Officer Dunn observed that [Appellant] was standing back from the open driver s side door in order to close it. [Appellant] then closed the driver s door of the vehicle and began walking away. No one else was in the area. Officer Dunn, having observed the speed at which [Appellant] had been driving, pulled past the vehicle and asked [Appellant] what his hurry was. [Appellant] stopped at the base of the steps that lead to the residence and turned to face the officer s patrol vehicle. Officer Dunn parked his patrol vehicle and got out to speak [Appellant]. Officer Dunn observed that: (1) [Appellant s] - 2 -

3 J. A27032/13 gait was unsteady as he was standing still; (2) [Appellant] would sway from forward to back to side to side; (3) a strong odor of alcoholic beverage emanated from [Appellant s] breath; and (4) [Appellant s] eyes were bloodshot and glassy. [Appellant], who was holding a McDonald s bag, said he was returning home from the restaurant. [Appellant] said to Officer Dunn, you didn t see me driving. Officer Dunn asked [Appellant] for his driver s license. Officer Dunn testified that [Appellant s] uncoordinated, slow, and deliberate movements retrieving his license from his wallet were indicative of impairment. [Appellant] declined to perform requested field sobriety tests. Based on a totality of his observations, Officer Dunn opined that [Appellant] was under the influence of alcohol to such a degree that would render a person incapable of safe driving. Accordingly at approximately 1:25 A.M., Officer Dunn arrested [Appellant]. A search incident to arrest yielded a cell phone and a set of keys to the vehicle in [Appellant s] possession. Officer Dunn took [Appellant] to Chambersburg Hospital for a blood alcohol test. En route to the hospital, [Appellant] made unsolicited statements to Officer Dunn that: (1) he was going to be way over (2) he was not going to lie, [he] shouldn t be driving; and (3) he figured taking the alleys would be safer. [Appellant] submitted to a blood test after acknowledging that he understood the DL-26 form. At approximately 1:51 A.M., a sample of [Appellant s] blood was drawn by a phlebotomist. A medical technologist performed an analysis on [Appellant s] blood and determined that [Appellant] had an effective blood alcohol concentration ( BAC ) between and This range was based on a conversion of serum value to whole blood value. Upon returning [Appellant] to his residence, Officer Dunn overheard [Appellant] tell his girlfriend, I got a DUI. [Prior to trial, Appellant conceded his pretrial discovery requests from the Commonwealth did not request the names of experts or expert reports. N.T., 8/21/12, at 127. Appellant also did not move to have the Commonwealth to disclose or have their experts prepare a report. Trial Ct. Op., 5/14/13, at 6.] - 3 -

4 J. A27032/13 At trial, the Commonwealth attempted to introduce documentation [3] through the medical technologist of the blood draw with serum to whole blood conversion results of [Appellant s] blood already calculated and noted in the documentation. [Appellant] objected to the Commonwealth admitting the results of the test, arguing that there was no foundational basis to admit the conversion results and that the technologist was unqualified to testify to the reliability in the scientific community of the conversion factors used therein. [In response to Appellant s objection, the Commonwealth stated that expert testimony was not required. N.T., 8/20/12, at 109, 133.]... The following day of trial, [the trial court] ruled that it was necessary for the Commonwealth to lay a foundation, either through the technologist or another expert, that the conversion factors it intended to introduce into evidence were generally accepted within the scientific community. [The Commonwealth then gave notice it intended to call Dr. Robin McCann as an expert and provided her curriculum vitae to Appellant. Id. at 125.] The Commonwealth then called Dr. Robin McCann as an expert in the field of toxicology to testify to the acceptance of the conversion factors by the scientific community. [Appellant] objected to Dr. McCann s testimony arguing that it was prejudiced because the Commonwealth failed to give prior notice of its intention to call Dr. McCann. Argument on the matter was heard outside of the presence of the jury where it was learned that the Commonwealth provided documentation during discovery of the blood draw which disclosed to [Appellant] the conversion factors that were used to determine the range of [Appellant s] BAC.... [Furthermore, Appellant conceded he did not file a motion for the Commonwealth to disclose or to have their experts prepare a report pursuant to Pa.R.Crim.P. 537(B)(2)(b). Id. at 128.] 3 The documentation was the lab report of the test on Appellant s blood

5 J. A27032/13 A recess was taken to enable [Appellant] to review Dr. McCann s curriculum vitae. [Appellant] argued it would not have time to procure its own expert in response. Thereafter, Dr. McCann was qualified, without objection by the defense, as an expert in the field of toxicology and proceeded to testify that the conversion factors used to determine [Appellant s] BAC were considered acceptable and recognized by the scientific community. Dr. McCann testified to the same conversion factors that were contained in the document already introduced through the medical technologist. Dr. McCann s testimony did not add any factual information other than that which had already been provided to [Appellant] Trial Ct. Op., 5/14/13, at 2-7 (footnotes omitted). Subsequently, a jury found Appellant guilty and, after a sentencing hearing, the court sentenced Appellant to ninety days to five years in prison. Appellant filed, and the court denied, a post-sentence motion challenging the admission of Dr. McCann s testimony and the weight of the evidence. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. Appellant raises the following issues: A trial by ambush and a violation of due process occurs when a party is provided notice of an expert on the same day the expert is presented as a witness. Did the trial court err when it allowed the expert to testify when [Appellant] was provided the name and curriculum vitae of the expert witness on the same day of trial they were expected to testify thereby violating [Appellant s] right of due process? Whether the trial court s verdict of guilt was against the weight of the evidence because the Commonwealth s evidence did not establish that [Appellant s] mental and physical faculties were impaired such that he could not safely operate a motor vehicle? - 5 -

6 J. A27032/13 Appellant s Brief at 1. For his first issue, Appellant contends that despite three separate discovery requests, the Commonwealth never notified him that it intended to call an expert at trial. He complains that he had insufficient time to prepare for cross-examination. Appellant opines that the trial court should have precluded the testimony of Dr. McCann or grant a continuance so he could prepare a defense. Appellant couches his argument as both a violation of Brady v. Maryland, 373 U.S. 83 (1963), and Pa.R.Crim.P. 573(B)(1)(a), (e). Appellant specifically does not challenge whether the Commonwealth complied with Pa.R.Crim.P. 573(B)(2)(b), which addresses when a court may order an expert whom the attorney for the Commonwealth intends to call in any proceeding to prepare a report. See Pa.R.Crim.P. 573(B)(2)(b). Appellant also does not raise a challenge under Pa.R.Crim.P. 573(D), which obligates the parties to promptly disclose the identity of any additional witnesses. See Pa.R.Crim.P. 573(D). Appellant has explicitly requested that this Court acquit him and not remand for a new trial. Appellant s Brief at 33. We hold Appellant is not entitled to relief. With respect to whether Brady applies to a particular factual scenario, the standard of review is de novo, as it is a question of law. Under Brady, the prosecution s failure to divulge exculpatory evidence is a violation of a defendant's Fourteenth Amendment due process rights. [T]o establish a Brady violation, a defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to - 6 -

7 J. A27032/13 the defense, was suppressed by the prosecution, to the prejudice of the defendant. The burden of proof is on the defendant to demonstrate that the Commonwealth withheld or suppressed evidence.... Similarly, this Court has limited the prosecution s disclosure duty such that it does not provide a general right of discovery to defendants.... Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009) (emphases added and citations omitted). In Cam Ly, the Commonwealth failed to disclose that a witness identified a different person as the culprit, which the Court held related to that witness s credibility. Id. at 76, 78. The Commonwealth also failed to produce a police log stating that an unnamed informant identified a third party as the perpetrator, which the Cam Ly Court categorized as exculpatory evidence. Id. at The Court, however, declined to grant relief for other reasons. Id. The Supreme Court also held that the protections of Brady did not apply to a witness s statement that Appellant confessed to the crime because the statement was not exculpatory. Id. at In this case, Dr. McCann testified that the conversion factors were accepted by the scientific community. Trial Ct. Op. at 5. This evidence neither exculpated Appellant nor related to a witness s credibility. See Cam Ly, 980 A.2d at 75. This evidence was not favorable to the defense. See id. Moreover, we observe, Appellant prompted the necessity of Dr. McCann s testimony by successfully objecting to the admission of the lab report because of a lack of foundation. See Trial Ct. Op. at 5. Because - 7 -

8 J. A27032/13 Appellant fails to meet the threshold requirements for a Brady claim, we hold he is not entitled to relief. With respect to Appellant s explicit challenge under Rule 573(B)(1)(a), (e), we state the rule in pertinent part as follows: (B) Disclosure by the Commonwealth. (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant s attorney to inspect and copy or photograph such items. (a) Any evidence favorable to the accused that is material either to guilt or to punishment, and is within the possession or control of the attorney for the Commonwealth; * * * (e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth; (D) Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness. (E) Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may - 8 -

9 J. A27032/13 order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances. Pa.R.Crim.P. 573(B)(1)(a), (e), (D), (E). 4 Instantly, after careful review of the parties briefs, the record, and the decision of the Honorable Christylee L. Peck, we affirm Appellant s first issue on the basis of the trial court s decision. See Trial Ct. Op., 5/14/13, at 7-10 (holding, inter alia, (1) Appellant conceded it never moved or otherwise requested the Commonwealth to disclose its experts or expert reports; and (2) Commonwealth was not placed on notice that expert would be required for admission of lab report until court sustained Appellant s objection). Moreover, the gravamen of Appellant s argument on appeal is lack of pretrial notice notwithstanding his failure to request the information at issue. Regardless, Appellant has not met the burden required to vacate his conviction, as he specifically requested. Appellant lastly challenges the weight of the evidence. He claims the Commonwealth met its burden of proof with speculative, non-specific, circumstantial evidence. Appellant s Brief at 35. Appellant maintains that the link between Officer Dunn s observations and Appellant s impairment lacked specificity and that Officer Dunn s opinion that Appellant was 4 We recognize the rule was amended during the pendency of this case; the amendments are immaterial to our disposition

10 J. A27032/13 incapable of safe driving was based on unscientific, subjective factors. We conclude Appellant is not entitled to relief. Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). This Court has stated: The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the creditability of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the lower court s verdict if it is so contrary to the evidence as to shock one s sense of justice. Commonwealth v. Serrano, 61 A.3d 279, 289 (Pa. Super. 2013) (citation omitted). Our Supreme Court has characterized the elements of DUI general impairment as follows: [W]e hold that subsection 3802(a)(1) is an at the time of driving offense, requiring that the Commonwealth prove the following elements: the accused 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. Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). To establish its burden of proof, [t]he 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

11 J. A27032/13 Id. 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. In this case, as set forth above, the Commonwealth introduced testimony regarding Appellant s actions and behaviors, including demeanor, physical appearance, and other physical signs of intoxication. We agree with the trial court that the record substantiated that Appellant was driving a vehicle when he was incapable of safely doing so due to the consumption of alcohol, and that the jury was free to believe this evidence. See Segida, 985 A.2d at 879; Widmer, 744 A.2d at 753. We hold the verdict is not so contrary to the evidence as to shock one s sense of justice, and thus do not disturb the court s denial of relief on the basis of the weight of the evidence for DUI-general impairment. See Serrano, 61 A.3d at 289. Accordingly, we find no error in the court s denial of Appellant s weight challenge

12 J. A27032/13 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/30/

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