Com. v. Lewis, C. ( 2017 )

J -S19013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES ROBERT LEWIS
Appellant No. 1177 MDA 2016
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.: FILED MARCH 20, 2017
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.
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
' 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.
*Former Justice specially assigned to the Superior Court.
J -S19013-17
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 574.2 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).
On March 22, 2016, before Appellant's jury trial commenced, the
Commonwealth presented the correct lab report to the court. Appellant
2 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.
-2
J -S19013-17
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
-3
J -S19013-17
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.
-4
J -S19013-17
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 3/20/2017
-5
Circulated 03/10/2017 10:59 AM
Lathrop
settgast I llllll lllll lllll lllll lllllll lllll llll 11111111111111111
OOOOTKF'( CCGPRO 201803
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CRIMINAL ACTION - LAW
COMMONWEALTH OF PENNSYLVANIA )
)
v. ) CP-14-CR-1403-2015
)
CHARLES ROBERT LEWIS, )
Defendant. )
Attorney for Commonwealth: Jessica H Lathrop, Esquire
Attorney for Defendant: Richard G Settgast, Esquire
OPINION AND ORDER
Presently before the Court is a Post-Sentence Motion filed by Charles Robert Lewis
("Defendant"), on June 22, 2016. For the following reasons, Defendant's Post-Sentence Motion
C)
!Tl ·-o r-,
=
-··
;z:_;o;_:;:l CT•
is DENIED. :-JOC~:
,.. c_
c::
;.~--i ;r~:~ r---
. •1::c:::,c.
BACKGROUND ··3~ ~i
. -
`` · (.,j
_.
·-~.. . .~"'·. . ,......
... ..
-·.~·:,-; ~
On September 4, 2015, Defendant was charged with Manufacture, Del~§~i%gr ~ "' .:
.... ·