Opinion
J-S19013-17 No. 1177 MDA 2016
03-20-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. CHARLES ROBERT LEWIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 16, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001403-2015 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Charles Robert Lewis, appeals from the judgment of sentence entered in the Centre County Court of Common Pleas, following his jury trial convictions of one count each of possession of a controlled substance with the intent to deliver ("PWID"), criminal conspiracy, possession of a controlled substance by an inmate, knowing or intentional possession of a controlled substance, and possession of drug paraphernalia. We affirm.
35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903, 5123(a.2); 35 P.S. §§ 780-113(a)16, (a)(32), respectively.
The relevant facts and procedural history of this case are as follows. Appellant, an inmate at the Benner Township State Correctional Institution, received a visit from his sister and co-defendant, Michilean Lewis on August 16, 2015. Ms. Lewis smuggled 33 balloons containing marijuana and 3 balloons containing Suboxone strips inside the prison. Matthew Kissel, a prison corrections officer, observed Appellant's and Ms. Lewis' interaction through video surveillance. Mr. Kissel watched Ms. Lewis hand an object to Appellant and then saw several clear balloons inside Appellant's bag of Dorito's. Mr. Kissel searched Appellant and recovered the contraband. Nicole Blascovich, a forensic scientist, analyzed the contraband and prepared a lab report based on her findings.
The Commonwealth charged Appellant with various related offenses on August 27, 2015. On February 29, 2016, the Commonwealth filed and served Appellant with a "Notice of Intent to Admit Laboratory Report Pursuant to Pennsylvania Rule of Criminal Procedure 574." The Commonwealth gave the correct lab report to Appellant through discovery on February 5, 2016, but it inadvertently attached an incorrect, unrelated lab report to its Notice of Intent on February 29, 2016. Appellant did not file a written demand for Ms. Blascovich's testimony pursuant to Rule 574(C)(1).
Rule 574 of the rules of criminal procedure refers to a procedure where the Commonwealth introduces a forensic lab report into evidence in place of live testimony by the expert who performed the analysis or examination, provided the defendant does not make a written demand for the expert's live testimony. --------
On March 22, 2016, before Appellant's jury trial commenced, the Commonwealth presented the correct lab report to the court. Appellant objected to the report on the basis that it was not the same report as the one attached to the Notice of Intent. Appellant conceded he had received the correct lab report during discovery and the Notice of Intent referenced the correct report, which prompted the court to overrule Appellant's objection.
A jury convicted Appellant of all charges on March 22, 2016. On June 16, 2016, the court sentenced Appellant to an aggregate term of three (3) to six (6) years' imprisonment, followed by a consecutive term of twelve (12) months' probation. The court imposed the sentence consecutive to an unrelated sentence Appellant was already serving. Appellant timely filed post-sentence motions on June 22, 2016. On July 7, 2016, the court held argument on Appellant's post-sentence motions, and denied the motions on July 13, 2016. Appellant timely filed a notice of appeal on July 18, 2016. On July 19, 2016, the court ordered Appellant to file a Rule 1925(b) statement, which Appellant timely filed on August 8, 2016.
Appellant raises one issue for our review:
[WHETHER] THE...COURT VIOLATED [APPELLANT'S] CONSTITUTIONAL RIGHT UNDER THE SIXTH AMENDMENT TO CONFRONT WITNESSES AGAINST HIM BY PERMITTING THE LAB REPORT TO BE ENTERED INTO EVIDENCE WITHOUT THE AUTHOR BEING CALLED TO TESTIFY[?](Appellant's Brief at 9). The Commonwealth claims Appellant waived his issue on appeal due to vagueness in his statement of questions presented section of his brief. What Appellant is challenging on appeal is evident so we decline to deem his issue waived.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jonathan D. Grine, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed July 13, 2016, at 2-4) (finding: Appellant premised alleged violation of his Sixth Amendment right to confront witness on fact that Commonwealth attached incorrect lab report to its Notice of Intent; Appellant insinuated he would have filed written demand for Ms. Blascovich's testimony at trial if Commonwealth had attached correct lab report to Notice of Intent, and he was not obligated to correct Commonwealth's mistake; Appellant's position is tenuous because Appellant knew he had correct lab report even before Commonwealth filed and served him with its Notice of Intent, which properly referenced correct lab report; Appellant knew Ms. Blascovich performed lab study, and Appellant failed to make written demand for Ms. Blascovich's testimony at trial; per totality of circumstances Appellant possessed relevant materials to make informed decision regarding demand for Ms. Blascovich's live testimony, but Appellant chose not to make that request). Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/20/2017
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