J-S18039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JONATHAN BEDOYA

 Appellant No. 2328 EDA 2016

Appeal from the Judgment of Sentence March 18, 2016

in the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0003025-2013

BEFORE: PANELLA, SOLANO, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 24, 2017

Appellant, Jonathan Bedoya, appeals from his judgment of sentence 

for driving under the influence of a controlled substance (“DUI”)1and 

careless driving2entered in the Northampton County Court of Common 

Pleas. Appellant argues that the trial court violated his Confrontation Clause 

rights by admitting expert testimony relating to the results of Appellant’s 

blood tests and an unsigned toxicology report listing the results of 

Appellant’s tests. Appellant also challenges the weight of the evidence. The 

Commonwealth concedes that the admission of the unsigned report violated 

 

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(2).

2 75 Pa.C.S. § 3714. Appellant does not challenge this conviction in the 

present appeal.
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Appellant’s Confrontation Clause rights but asserts that this error was 

harmless due to the overwhelming evidence of Appellant’s guilt. We affirm.

The following evidence was adduced during trial. At 8:50 p.m. on June 

23, 2013, Appellant was involved in a single-vehicle accident on Route 191 

in Northampton County. N.T., 12/1/15, at 25-26. Appellant’s brother, 

Anthony Bedoya, was a passenger in the vehicle at the time of the accident. 

Id. at 73. 

Shortly before the accident, David Whitehouse, who was driving two 

cars behind Appellant, observed Appellant veer over the double yellow line. 

Id. at 26-27. The car between Appellant and Whitehouse passed around 

Appellant’s car on the right shoulder, leaving Whitehouse directly behind 

Appellant. Id. Whitehouse saw Appellant veer again across the yellow line 

and honked his horn to try to get Appellant’s attention. Id. at 27. Instead 

of correcting his path, Appellant drove off the opposite side of the road, slid 

down a seven-foot embankment, and struck a tree and a pole, smashing in 

the rear driver side door and cracking several windows. Id. at 27, 28, 30, 

33, 82, 103-04. Whitehouse exited his vehicle and approached Appellant’s 

vehicle to see whether anyone was hurt. Id. at 28. Appellant did not 

respond appropriately and was incoherent. Id. at 34. 

Bethlehem Township Officer William Stanton, the first police officer to 

arrive at the accident scene, observed Appellant sitting in the driver’s seat 

next to several empty packets of synthetic marijuana and hollowed out 
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cigars. Id. at 83, 85-86. Appellant told the officer that he was not injured, 

but he “appeared . . . to be intoxicated” and “his eyes were rolling around.” 

Id. at 87. After exiting the vehicle, Appellant had trouble maintaining his 

balance, slurred his speech and needed assistance walking up the 

embankment. Id. at 84, 87. Appellant admitted to the officer that he had a 

problem smoking synthetic marijuana. Id. at 100. Appellant’s brother told 

the officer that he and Appellant had been smoking synthetic marijuana that 

day and “routinely smoke that stuff.” Id. at 86.

At 11:35 p.m., Trooper Steven Moyer, a drug recognition expert 

employed by the Pennsylvania State Police, met with Appellant. N.T., 

12/2/15, at 18. Trooper Moyer testified that “[s]ynthetic marijuana 

essentially has similar effects to regular marijuana.” Id. at 19; see also id.

at 48 (“very similar” effects).

Trooper Moyer performed a twelve step test to determine whether 

Appellant was impaired. Id. at 6-9. Appellant’s errors during the heel-totoe test, one-leg stand test, and finger-to-nose test indicated that he was 

impaired, as did the manner in which Appellant’s eyes reacted to light

stimuli. Id. at 29-30, 36, 38, 40, 74-75. He exhibited numerous other 

signs of impairment, such as poor coordination, bloodshot eyes, eyelid, 

body, and leg tremors, slowed speech, and elevated blood pressure. Id. at 

2, 24, 29, 34, 36-37, 38, 40, 41, 64, 79. His tongue was dark green, a sign 

of recent marijuana usage. Id. at 43. In Trooper Moyer’s opinion, Appellant 
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was under the influence of cannabinoids to such a degree that he was unable 

to safely operate a motor vehicle.3 Id. at 42. 

Appellant’s blood sample was sent to NMS Laboratory for testing. 

N.T., 12/1/15, at 41. Dr. Wendy Adams, assistant laboratory director at 

NMS and an expert in forensic toxicology, testified about the test results. 

Id. at 41-72. She first described the chain of custody of blood samples and 

NMS’ testing procedures and quality controls. Id. at 42-49. Several 

employees work on each sample, including a prep analyst, a calculator, and 

a second reviewer. Id. at 49. If the first test indicates the presence of a 

controlled substance, there is a second confirmatory test. Id. at 51. When 

testing is complete, a toxicology report is automatically generated listing the 

test results. Id. at 52. There is no author or signature on the report. Id.

at 70. 

Dr. Adams described the result of the toxicology report but admitted 

that she did not personally test Appellant’s blood, handle his sample or 

prepare the toxicology report. Id. at 51-54. Prior to trial, she reviewed all 

quality control checks and the raw data compiled from tests on Appellant’s 

blood. Id. at 47, 54, 69. Based on this review, she reached the 

 

3 Although defense counsel suggested during Trooper Moyer’s crossexamination that Appellant’s behavior was the result of a concussion, there 

is no medical evidence in the record that supports this suggestion. As 

discussed above, Appellant did not appear to be injured at the accident 

scene.
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independent conclusion that Appellant’s blood contained XLR-11, a chemical 

indicator of synthetic marijuana. Id. at 52, 54, 56, 69. 

Appellant moved to strike Dr. Adams’ testimony and the toxicology 

report on the ground that the Confrontation Clause required the author of 

the toxicology report to testify instead of Dr. Adams. Id. at 60-64; N.T., 

12/2/15, at 100-01. The trial court overruled the objection and admitted 

the report “for the limited purpose of it being a factual basis for [Dr. Adams) 

rendering her own independent opinion.” N.T., 12/2/15, at 101-02. The 

purpose of this ruling was to exclude the toxicology report as substantive 

evidence of Appellant’s guilt. Id. at 102, 108-10. In accordance with this 

ruling, the trial court gave the following instruction to the jury:

In giving you her opinion, Dr. Adams referred to certain 

facts such as [the] NMS report identified as 

Commonwealth Exhibit 1 that have not — that has not 

been presented from the witness stand except as Dr. 

Adams described it as part of the basis of her opinion. 

Because that fact has not been presented in evidence 

except through Dr. Adams’ testimony, you should consider 

the report only for the limited purpose of deciding whether 

or not to accept Dr. Adams’ opinion. 

You should not consider the report in any other way in 

your deliberations in this case because it has no bearing on 

the question of whether [Appellant] is guilty or not guilty

except for the purpose I just described . . . to you. In 

other words, you’re looking at Dr. Adams’ opinion and not 

solely . . . the report. That’s just one of the bas[e]s of her 

opinion[. T]hat’s why I allowed the report into evidence.

Id. at 165-66.
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The jury found Appellant guilty of DUI. On March 18, 2016, the court 

sentenced Appellant to three to six months’ imprisonment followed by fiftyfour months’ probation. Appellant filed timely post-sentence motions 

challenging the weight of the evidence, which the court denied, and a timely 

notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 

1925.

Appellant raises two issues in this appeal:

1. Confrontation Clause. The Sixth Amendment 

guarantees criminal defendants the right to a fair trial—

including the right to confront “witnesses” against them. 

Here, the government introduced a forensic toxicology 

report via a “witness” who neither performed, reviewed, 

authored the report, nor certified the results. Does a 

“witness” who neither performed, reviewed, authored the 

report, nor certified the results introduced at trial, violate 

the Confrontation Clause? In other words, is this the 

proper “witness” against [Appellant]?

2. Weight of the Evidence. Whether the verdict was 

against the weight of the evidence when the 

Commonwealth presented evidence that could equate 

either with impairment or head trauma and the [drug 

recognition expert] who opined that the evidence equates 

to impairment could not provide any reference to the 

studies he relied upon?

Appellant’s Brief at 4.

Appellant first argues that the admission of an unsigned laboratory 

report listing his blood test results and Dr. Adams’ expert testimony relating 

to these results violated Appellant’s rights under the Confrontation Clause of 

the Sixth Amendment. Our standard of review of this question of law is de 

novo, and our scope of review is plenary. Commonwealth v. Brown, 139 
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A.3d 208, 211 (Pa. Super. 2016), appeal granted, __ A.3d __, 2016 WL 

7235589 (Pa. Dec. 14, 2016) (citation omitted).

The trial court reasoned that Dr. Adams’ testimony and the toxicology 

report violated Appellant’s Confrontation Clause rights, but that this error 

was harmless in light of the court’s limiting instruction to the jury and the 

other evidence of Appellant’s guilt. Trial Ct. Op., 9/13/16, at 14-15, 17. 

Assuming without deciding that there was a Confrontation Clause violation, 

we agree with the trial court that the error was harmless.

The Sixth Amendment to the United States Constitution provides: “In 

all criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him[.]” This protection applies to 

state court prosecutions by virtue of the Due Process Clause of the 

Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406 (1965). The 

Confrontation Clause “applies to witnesses against the accused—in other 

words, those who bear testimony. Testimony, in turn, is typically a solemn 

declaration or affirmation made for the purpose of establishing or proving 

some fact.” Crawford v. Washington, 541 U.S. 36, 51 (2004).

In order to determine if a document or statement 

created out-of-court is testimonial in nature, our Supreme 

Court looks at the primary purpose of the document or 

statement. [Commonwealth v. Yohe, 79 A.3d 520, 531–

32 (Pa. 2013)] (citations omitted). A document or 

statement is testimonial if its primary purpose is “to 

establish or prove past events potentially relevant to later 

criminal prosecution.” Id. at 531 (citation omitted). A 

document or statement has such a primary purpose if it is 

created or given “under circumstances which would lead an 
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objective witness reasonably to believe that the [document 

or] statement would be available for use at a later trial[.]” 

Id. (citation omitted). If a document or statement is 

testimonial, then the witness who prepared it must testify 

at trial, unless he or she is unavailable and the defendant 

had a prior opportunity for cross-examination. Michigan 

v. Bryant, 562 U.S. 344, 354 [] (2011) (“[F]or testimonial 

evidence to be admissible, the Sixth Amendment demands 

what the common law required: unavailability [of a 

witness] and a prior opportunity for cross-examination.” 

(internal quotation marks and citation omitted)). 

Brown, 139 A.3d at 212.

In a series of recent decisions, the United States Supreme Court has 

addressed difficult questions concerning the legality of forensic tests or 

expert testimony pertaining to forensic tests under the Confrontation Clause. 

See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009) 

(absent showing that forensic analysts who prepared report relating to 

weight of cocaine seized from defendant were unavailable to testify at trial, 

and that defendant had prior opportunity to cross-examine them, defendant 

was entitled to be confronted with analysts at trial); Bullcoming v. New 

Mexico, 564 U.S. 647, 664-68 (2011) (introduction of blood-alcohol analysis 

report, wherein forensic analyst certified that defendant’s blood-alcohol 

concentration was well above the threshold for aggravated driving while 

intoxicated under New Mexico law, through the surrogate testimony of 

second analyst, who had not certified the report or performed or observed 

the testing, violated the Confrontation Clause); Williams v. Illinois, 567 

U.S. 50 (2012) (plurality decision) (Confrontation Clause not violated when 
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expert expresses independent conclusions based on review of inadmissible 

evidence, although underlying inadmissible evidence does not become 

admissible based on expert’s independent conclusions). Courts in this 

Commonwealth have also issued scholarly and exhaustively researched 

opinions on this subject. See, e.g., Yohe, 79 A.3d at 530-42; Brown, 139 

A.3d at 212-20. 

Here, Appellant raises another interesting Confrontation Clause 

question by contrasting this case with Yohe. In Yohe, a DUI case, our 

Supreme Court held that the defendant’s Confrontation Clause rights were 

not violated even though the Commonwealth’s expert forensic witness did 

not perform the blood tests himself. Yohe, 79 A.3d at 543. The Court held 

that the expert was a proper “analyst”, and therefore a proper witness, for 

Confrontation Clause purposes, because he supervised the laboratory in 

which the tests were performed, oversaw technicians who tested the 

defendant’s blood samples, reviewed the test data, evaluated the results, 

and wrote and signed the report assessing the test results. Id. at 540-41. 

Appellant strenuously argues that crucial distinctions exist between the 

present case and Yohe. Appellant argues that in this case,

Dr. Adams did not certify the results. She did not perform 

the underlying analysis. She did not sign or author the 

report. She was given the report to come to trial and 

testify to its results. [She] did not do the testing herself. 

She didn’t certify the results. She merely reviewed them 

when called for trial . . . .
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Appellant’s Brief at 18. Further, Appellant argues that while the analyst in 

Yohe certified that laboratory technicians followed proper procedures, 

Dr. Adams did not witness the opening of the vial of blood, 

[she] did not check to make sure the sample was intact 

with no broken seal, she did not have direct access to 

check that the sample number and report number 

corresponded with one another, and she did not know that 

the sample was tested with the utmost care and diligence 

throughout the entire testing process. [Appellant] was not 

given the opportunity to confront the person who 

performed the test, reviewed it, and the person who 

certified its validity[;] therefore, he has not confronted the 

proper witness against him and he was deprived of his 

Sixth Amendment Confrontation Clause rights. [Appellant] 

deserves the opportunity to test the veracity of those who 

performed the tests and confirmed the results.

Id. at 20.

Although this issue is intriguing, we need not examine it in depth. 

Instead, assuming arguendo that Dr. Adams’ testimony violated Appellant’s 

Confrontation Clause rights, the error is harmless because the remaining 

evidence against him is overwhelming.

The doctrine of harmless error is a technique of 

appellate review designed to advance judicial economy by 

obviating the necessity for a retrial where the appellate 

court is convinced that a trial error was harmless beyond a 

reasonable doubt. Its purpose is premised on the wellsettled proposition that a defendant is entitled to a fair trial 

but not a perfect one.

Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quotation 

and citations omitted). 

Harmless error exists where: (1) the error did not 

prejudice the defendant or the prejudice was de minimis; 

(2) the erroneously admitted evidence was merely 
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cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; 

or (3) the properly admitted and uncontradicted evidence 

of guilt was so overwhelming and the prejudicial effect of 

the error was so insignificant by comparison that the error 

could not have contributed to the verdict. 

Commonwealth v. Melvin, 103 A.3d 1, 20 (Pa. Super. 2014) (citations 

omitted).

Appellant was convicted of violating 75 Pa.C.S. § 3802(d)(2), which 

provides:

(d) Controlled substances.— An individual may not 

drive, operate or be in actual physical control of the 

movement of a vehicle under any of the following 

circumstances:

* * *

(2) The individual is under the influence of a drug or 

combination of drugs to a degree which impairs the 

individual’s ability to safely drive, operate or be in 

actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(d)(2). This provision does not require expert testimony. 

See Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa. 2011) (section 

3802(d)(2) “does not limit, constrain, or specify the type of evidence that 

the Commonwealth can proffer to prove its case”). Thus, under harmless 

error standards, Appellant’s conviction under section 3802(d)(2) remains 

intact if overwhelming evidence of guilt remains after exclusion of Dr. 

Adams’ expert testimony and the prejudicial impact of her testimony is 

insignificant by comparison. 
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The remaining evidence satisfies this test. An eyewitness, 

Whitehouse, observed Appellant driving his car erratically and then 

plummeting down an embankment off of the opposite side of the highway, 

crashing into a tree and a pole. The officer who arrived at the accident 

scene observed Appellant sitting in the driver’s seat next to synthetic 

marijuana packets and hollowed out cigars. Appellant displayed well-known 

signs of intoxication: his eyes were rolling around, he slurred his speech, he 

had trouble maintaining his balance upon exiting the vehicle and needed 

assistance walking up the embankment. He also admitted to the officer that 

he had a problem smoking synthetic marijuana. Appellant’s brother told the 

officer that he and Appellant had been smoking synthetic marijuana that day 

and “routinely smoke that stuff.” Later that evening, Appellant exhibited 

multiple signs of impairment during a meeting with a drug recognition 

expert. His tongue was dark green, a sign of recent marijuana usage. He 

failed a heel-to-toe test, one-leg stand test and finger-to-nose test. The 

manner in which his eyes reacted to light stimuli demonstrated impairment, 

as did his poor coordination, bloodshot eyes, eyelid, body, and leg tremors, 

slowed speech and elevated blood pressure. Cf. Commonwealth v. 

Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (conviction for DUI affirmed 

even though defendant refused to submit blood sample, where evidence of 

intoxication included defendant’s failure to stop at stop sign despite police 

officer’s cruiser being in full view, strong odor of alcohol emanating from 
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vehicle, slurred speech, failure to perform four field sobriety tests and 

inability to recite alphabet). Viewed collectively, these facts overwhelmingly 

establish that Appellant drove his car while under the influence of a drug 

that impaired his ability to safely drive the vehicle. 

In addition, the trial court minimized any possible Confrontation Clause 

error by instructing the jury not to consider the toxicology report or Dr. 

Adams’ testimony about the report as evidence of Appellant’s guilt. “A jury 

is presumed to follow a trial court’s instructions.” Commonwealth v. Reid, 

99 A.3d 470, 501 (Pa. 2014) (citation omitted). We see nothing in the 

record that rebuts this presumption. For these reasons, no relief is due on 

Appellant’s first argument. 

In his second issue, Appellant challenges the weight of the evidence, 

claiming that the evidence was equally consistent with head trauma as it 

was with impairment through use of a controlled substance. We disagree. 

Our Supreme Court has held that

[a] motion for a new trial alleging that the verdict was 

against the weight of the evidence is addressed to the 

discretion of the trial court. An appellate court, therefore, 

reviews the exercise of discretion, not the underlying 

question whether the verdict is against the weight of the 

evidence. The factfinder is free to believe all, part, or 

none of the evidence and to determine the credibility of 

the witnesses. The trial court will award a new trial only 

when the jury’s verdict is so contrary to the evidence as to 

shock 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 
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inferences of record disclose a palpable abuse of 

discretion. Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the 

least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations 

omitted).

Based on the evidence summarized above, the trial court rejected 

Appellant’s post-sentence motion challenging the weight of the evidence. 

Even excluding Dr. Adams’ report, the court acted within its discretion by 

concluding that this evidence was “not so contrary to the evidence as to 

shock one’s sense of justice.” Id. 

In effect, Appellant asks this Court to re-weigh the evidence as 

indicative of head trauma merely because defense counsel suggested that 

Appellant might have suffered head trauma while cross-examining the 

Commonwealth’s drug recognition expert. This we cannot do. See id. 

(“Appellant’s argument is nothing more than a veiled attempt to have this 

Court re-weigh the evidence and substitute our judgment for that of the 

jury, which is wholly improper”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/24/2017