Commonwealth v. Landis

COMMONWEALTH OF PENNSYLVANIA, Appellee v. DANIEL EUGENE LANDIS, II, Appellant

J.A27034/13

No. 2108 MDA 2012

SUPERIOR COURT OF PENNSYLVANIA

FILED FEBRUARY 19, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence July 10, 2012

In the Court of Common Pleas of Juniata County

Criminal Division No(s).: CP-34-CR-0000167-2010

BEFORE: BENDER, P.J., WECHT, and FITZGERALD,^* JJ.

MEMORANDUM BY FITZGERALD, J.:

Appellant, Daniel Eugene Landis, II, appeals from the judgment of sentence entered in the Juniata County Court of Common Pleas after a jury found him guilty of, inter alia, driving under the influence (DUI)—incapable of safely driving and DUI—highest rate of alcohol.¹ Appellant claims that he is entitled to (1) a new trial because the finding that his blood-alcohol level was over .16% within two hours of driving was against the weight of the evidence and (2) the suppression of the evidence against him because thearresting officer lacked reasonable suspicion or probable cause to conduct a traffic stop. We vacate the judgment of sentence, reverse the order denying Appellant's request for a new trial, vacate the order denying suppression, and remand for further proceedings consistent with this memorandum.

Appellant's convictions arise from a traffic stop that occurred at 2:40 a.m. on April 4, 2010. Prior to the stop, Pennsylvania State Troopers Robby J. Murphy and Dustin T. Shaffer were patrolling on northbound State Route 35, when they observed a Chevrolet pickup truck being operated by Appellant. Trooper Shaffer testified that he followed Appellant for two miles. During that time, Appellant weaved within his lane of travel, "cross[ed]" the center double-yellow line on two occasions, and "veered onto" the double-yellow line as a southbound vehicle was passing. N.T. Prelim. Hr'g, 9/8/10, at 5.

The troopers conducted a traffic stop, and after engaging Appellant, Trooper Shaffer smelled a strong odor of alcohol. Appellant admitted he drank alcohol earlier in the evening, and the trooper administered a preliminary breath test, which returned positive for alcohol.² The trooper asked Appellant to exit his truck and perform field sobriety tests. Appellant failed the walk-and-turn test, but passed the one-leg-stand test. Thetrooper noticed that Appellant's eyes were red, his actions were slow, and there was a strong odor of alcohol coming from him.

The troopers took Appellant into custody and transported him to Lewistown Hospital³ for blood testing. A medical technician drew Appellant's blood at 3:18 a.m. and conducted a test using an Avid Axsym machine. The testing required that the technician place a reagent in the machine and set up a standard, a control, and a sample of Appellant's blood for testing. Once set, the machine added the reagent and printed the test results of the standard, control, and Appellant's blood. The machine reported that Appellant's blood-alcohol content was 163.88 milligrams per deciliter, or .164%.⁴

Appellant was charged with DUI—incapable of safely driving, DUI—highest rate of alcohol, and summary traffic violations. Appellant filed a motion to suppress the evidence obtained following the traffic stop. On March 9, 2011, the suppression court convened a hearing, at which time Appellant and the Commonwealth agreed to incorporate a transcript of the preliminary hearing into the suppression record. N.T. Suppression, 3/9/11, at 3-5. The Commonwealth additionally called Trooper Shaffer to testify. Id. at 5. The court, upon consideration of the trooper's testimony and thepreliminary hearing transcript, entered an order denying suppression, but did not provide a statement of its findings of fact and conclusions of law.

A jury trial was held on June 1, 2012. The Commonwealth, inter alia, called the medical technician who drew Appellant's blood and tested it using the Avid Axsym machine.⁵ Appellant cross-examined the technician and the following exchange occurred:

[Appellant's Counsel:] Are you aware of the margin of error for the Axsym machine that you utilize at Lewistown Hospital?

[Witness:] Yes.

[Appellant's Counsel]: And what's that margin of error?

[Witness:] Ten percent.

[Appellant's Counsel:] And that ten percent is not taken into consideration with the report of that .16388?

[Witness:] As long as our controls and standards are in.

[Appellant's Counsel:] I don't think I got your response as far as—

[Witness:] No.

[Appellant's Counsel:] . . . [T]he margin of error is not taken into consideration with the report of .16388.[Witness:] No.

N.T., 6/1/12, at 105-06. On redirect examination, the Commonwealth elicited the following testimony from the technician:

[Commonwealth:] Now you also testified as to the margin of error being ten percent. Is that the same for legal draws and medical draws?

[Witness:] It's—I can't really explain the ten percent. I know this is what we do for our patients. We run it as a patient. So, I mean, the margin of error is—I don't even know how to explain it. It's not only a margin of error. That is what it can deviate from. But if you have a—it needs to be within ten percent. It's not really a margin of error; it's just where we can waiver [sic] from.

[Commonwealth:] Is that the range?

[Witness:] Yes.

[Commonwealth]: Okay. So that can go above or below?

[Witness]: Right. That's correct.

Id. at 107.

Additionally, Appellant, during his case-in-chief, called Dr. Joseph Citron, M.D., as an expert in, inter alia, toxicology and analytical chemistry. Id. at 124. The doctor testified that the test performed at Lewistown Hospital was an enzyme assay test designed for clinical use. Id. at 141. According to the doctor, an enzyme assay test did not distinguish between ethanol and other alcohols, such as isopropyl alcohol or methanol, and was less reliable than a gas chromatography test. Id. at 142-45. Furthermore, the doctor stated that given the testimony regarding a 10% margin of error,a reading of .164 reflected a range between .147 and .180. Id. at 147-48. The doctor concluded that the Appellant's reported blood-alcohol content was not reliable. Id. at 150-51.

The Commonwealth, in turn, presented rebuttal evidence reiterating that Lewistown Hospital was an approved testing facility. Id. at 176. The Commonwealth also established that the laboratory was not required to conduct multiple tests on a single sample or use gas chromatography equipment. Id. at 174-76. No further evidence was presented regarding the 10% margin of error associated with the Avid Axsym machine.

The jury found Appellant guilty of both counts of DUI. On July 10, 2012, the trial court sentenced Appellant to serve ninety days' to five years' less one day imprisonment for DUI—highest rate of alcohol and merged the count of DUI—incapable of safely driving. Appellant timely filed a post-sentence motion, which was denied by operation of law on November 16, 2012. This appeal followed.⁶

Appellant presents the following questions for our review:

Whether the trial court's verdict of guilt as to DUI: Highest Rate of Alcohol was against the weight of the evidence where the Lewistown Hospital conducted only one test of Appellant's blood, the Commonwealth's witnesses testified to a ten percent margin of error and the Commonwealth could not scientifically validate said resultas it could not be shown to be reliable, reproducible or trustworthy?

Whether the [suppression] court erred in denying Appellant's Motion for Suppression of Evidence when it determined that the motor vehicle stop that led to Appellant's arrest for driving under the influence was supported by either probable cause or reasonable suspicion to believe Appellant drove in violation of the Motor Vehicle Code[?]

Appellant's Brief at 1.

Appellant first argues that the jury's verdict on the count of DUI-highest rate of alcohol was against the weight of the evidence. He contends that the evidence that his blood-alcohol level was .164% was unreliable because the medical technician only took one sample of blood and ran only one test. Moreover, he claims that the result from an Avid Axsym machine is less accurate than a gas chromatography test, the latter of which he refers to as a "gold standard." He also observes that the evidence at trial established a 10% margin of error in the results from the Avid Axsym machine. We are constrained to agree that Appellant is entitled to a new trial on the count of DUI—highest rate of alcohol.

Our standards of review our well settled.

A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the [fact-finder] is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, and a new trial based on a weight of the evidence claim is only warranted where the [factfinder's]verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012) (citation omitted), appeal denied, 65 A.3d 413 (Pa. 2013).

Moreover,

"[a] new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion." Rather, the role of the trial court is to determine that notwithstanding all the evidence, certain facts are so clearly of greater weight that to ignore them, or to give them equal weight with all the facts, is to deny justice. A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that

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