J. S71044/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

CARL DWAYNE BRIGGS, :

:

Appellant : No. 881 MDA 2014

Appeal from the Judgment of Sentence November 22, 2013

In the Court of Common Pleas of Mifflin County 

Criminal Division No(s).: CP-44-CR-0000331-2012

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 23, 2015

Appellant, Carl Dwayne Briggs, appeals from the judgment of sentence 

entered in the Mifflin County Court of Common Pleas following his jury 

conviction of driving under the influence (“DUI”)—general impairment,1

second offense, homicide by vehicle while driving under the influence,2and 

related offenses. Appellant (1) challenges the sufficiency and weight of the 

evidence and (2) argues his rights under the Confrontation Clause3 were 

 

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 3735(a).

3 See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall 

enjoy the right . . . to be confronted with the witnesses against him.”).
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violated when the court allowed a laboratory supervisor, who did not draw or 

test Appellant’s blood, to testify about his blood alcohol content (“BAC”) test 

result. We affirm.

The trial court summarized the facts as follows. On the afternoon of 

October 8, 2011, Appellant was at the home of his friends, a husband and 

wife couple, and drank four twelve-ounce cans of beer over “several hours.” 

Trial Ct. Op., 6/17/14, at 2. He left “around 3:30 or 4:00 p.m.” Id. 

Witnesses Barry and Delores George were in their vehicle on Route 522 in 

McVeytown4 when Appellant’s car passed them. “Mr. George testified he 

was going slightly less than the speed limit [of] 55 miles per hour when 

Appellant passed him [by going into] the opposite lane of travel.” Id. at 2-

3.

The victims in this case, Judy and Bruce Kauffman, were on a 

motorcycle traveling toward Appellant in the same lane of travel. Mr. 

George testified “Appellant never took evasive action to avoid the 

motorcycle.” Id. at 3. The two vehicles collided and the Kauffmans “died 

right away.”5 Both Mr. and Mrs. George “testified that the sun was bright 

and in their eyes.” Id.

Doug Boozel, captain of the fire company, was off duty and a mile and 

 

4 See N.T. Trial, 9/10/13, at 74.

5

Id. at 32 (Commonwealth’s opening argument).
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half to two miles away when he received a page about the accident. N.T. at 

93. He arrived at the accident scene within approximately two minutes of 

the dispatch. Id. at 94. Boozel testified he

briefly spoke with Appellant immediately after the 

accident[ and] recalled smelling an odor of alcohol on 

Appellant’s person and Appellant’s eyes were blood shot 

and glassy. Nick Price, EMT, who was at the scene shortly 

after the accident, testified that he smelled an odor of 

alcohol on Appellant’s person. He testified that Appellant 

had a diabetic episode in the ambulance immediately 

following the accident. Trooper [Stephen] Griffith, [who] 

saw Appellant in the ambulance shortly after the 

accident[,] smelled an odor of alcohol on Appellant’s 

person and Appellant was talking slowly. Appellant told 

Trooper Griffith that he had been drinking at his friend’s 

house earlier.

[Adrienne] Strouser testified she was employed by

Lewistown Hospital as a medical technician and drew 

Appellant’s blood at 6:07 p.m. on the day of the accident. 

The blood test indicated a .077% blood-alcohol content. 

Brian Seay, forensic toxicology supervisor at Quest 

Diagnostics, testified that Appellant’s laboratory report[, 

introduced at trial as Exhibit C-9,] indicated a .079% 

blood-alcohol level.[6] J. Ward Donovan, board certified 

toxicologist, provided expert testimony that he believed 

Appellant’s blood-alcohol level at the time of the accident 

was most likely between .1002% and .1084%. Dr. 

Donovan also testified that many individuals cannot 

actually tell when someone is impaired to the extent that 

[he is] incapable of safe driving and that a blood-alcohol 

level in the range of .09% to .11% would significantly 

impair someone’s ability to safely drive a motor vehicle.

Appellant testified that he has been a diabetic since he 

was nine (9) and that as a result of a medication change 

just weeks prior to the accident he had some significant 

diabetic episodes. Appellant testified that on the day of 

 

6 Seay is the witness whose testimony Appellant challenges in this appeal.
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the accident he had four (4) Coors Light beers during his 

visit with [his friends]. Appellant left [their] residence to 

return home. Appellant testified that he remembers the 

events [from] leaving [his friends’] residence [to] 

stop[ping] at the red light in McVeytown [and then] no 

recollection of events . . . until he was in the parking lot of 

the Lewistown Hospital just prior to being treated in the 

emergency room. He testified, just as in other diabetic 

episodes he has had over the years, he had no memory of 

any of the events that occurred between the red light in 

McVeytown and the parking lot of the Lewistown Hospital.

Trooper [Richard] Leight testified that he spoke with 

Appellant at the Lewistown Hospital and that Appellant told 

him he thought he saw the motorcycle in the distance, but 

then as he was passing, the motorcycle was right in front 

of him. Also, he stated he tried to swerve to the left and 

that he believes that the motorcycle did the same and 

swerved in the same direction.

. . . [T]here was no sign of brake marks before the 

accident scene or any evidence that Appellant took any 

evasive action to avoid a head on collision with the 

oncoming motorcycle despite his statement to Trooper 

Leight that he saw the motorcycle in the distance.

Trial Ct. Op. at 3-4.

The case proceeded to a three-day jury trial on September 10, 2013. 

As stated above, Appellant admitted he drank four cans of beer that 

afternoon, but argued he was not intoxicated or impaired, and instead the 

accident was caused by (1) a diabetic episode, in which he normally 

becomes “zombie-like” or “unresponsive,” or (2) the sun and glare. N.T. at 

46-47 (Appellant’s opening argument).

The jury found Appellant guilty of DUI—general impairment, second 

offense, and two counts each of homicide by vehicle while DUI, homicide by 
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vehicle,7and involuntary manslaughter.8 The court also found Appellant 

guilty of the summary offense of limitations on overtaking on the left.9 On 

November 22, 2013, the court imposed an aggregate sentence of six to 

twelve years’ imprisonment.10

Appellant filed a timely post-sentence motion. The court held a 

hearing on April 17, 2014, and denied the motion on April 28th.11 Appellant 

took this timely appeal and complied with the court’s order to file a Pa.R.A.P. 

 

7 75 Pa.C.S. § 3732(a).

8 18 Pa.C.S. § 2504(a).

9 75 Pa.C.S. § 3305.

10 The sentences are as follows: (1) for two counts of homicide by vehicle by 

DUI—two consecutive sentences of three to six years’ imprisonment; (2) for 

two counts of homicide by vehicle—two concurrent sentences of one to two 

years’ imprisonment; and (3) for two counts of involuntary manslaughter—

two concurrent sentences of one to two years’ imprisonment. See 75 

Pa.C.S. § 3735(a) (providing mandatory minimum sentence of three years’ 

imprisonment for homicide by vehicle by DUI and requiring consecutive 

three-year term of imprisonment for each victim); Bell v. Commonwealth, 

96 A.3d 1005, 1017 (Pa. 2014) (stating homicide by vehicle and homicide by 

vehicle while DUI do not merge for sentencing purposes).

11 Pursuant to Pennsylvania Rule of Criminal Procedure 720(B)(3)(a), the 

trial court had 120 days from the December 2, 2013 filing of the motion—or 

until April 1, 2014—to rule on it, or the motion would be denied by operation 

of law. See Pa.R.Crim.P. 720(B)(3)(a). On February 27, 2014, Appellant 

filed a motion to enlarge the time for the trial court to decide the postsentence motion, averring he needed time to obtain the funds to pay for a 

trial transcript. See Pa.R.Crim.P. 720(B)(3)(b) (providing court may grant, 

upon timely defense motion and for good cause shown, one thirty-day 

extension for decision on post-sentence motion). The trial court granted the 

enlargement of time, thus extending the deadline for a decision to May 1, 

2014. As stated above, the motion was denied on April 28th.
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1925(b) statement of matters complained of on appeal. He presents two 

issues for our review: the sufficiency and weight of the evidence and the trial 

court’s admission of Brian Seay’s testimony.

In his first and second issue, Appellant challenges the sufficiency, and 

in the alternative, the weight, of the evidence for homicide by vehicle while 

DUI.12 Specifically, he avers the evidence was insufficient to establish he 

committed DUI or was intoxicated or impaired by alcohol. In support, he 

cites the following trial testimony: (1) his friend’s wife, whom he was 

visiting, stated Appellant did not appear intoxicated while he was at her 

house; (2) Price, the responding EMT, testified Appellant was alert, oriented, 

and articulate and did not exhibit any intoxicated characteristics, Price gave 

Appellant fifteen grams of glucose at 5:09 and again at 5:15 p.m., and that 

while in the ambulance, Appellant suffered a diabetic episode; (3) Dr. 

Theodore Hetrick, the emergency room doctor who treated Appellant, 

testified he did not see any signs that Appellant was impaired by alcohol and 

concluded he suffered a hypoglycemic episode; (4) Dr. Lawrence Guzzardi, 

Appellant’s expert toxicologist witness, testified “clinical observations are 

probably much better than blood-alcohol tests taken a period of time after 

an accident especially when made by a doctor, such as Dr. Hetrick, an EMT 

such as Nick Price, a paramedic, with an emergency doctor being the best 

 

12 Appellant has preserved a weight of the evidence claim, as he raised it in 

his post-sentence motion. See Pa.R.Crim.P. 607(A)(3).
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individual [sic],” “the data was poor for attempting to determine 

[Appellant’s] blood-alcohol level at the time of the accident,” and “the most 

likely cause of the accident was hypoglycemia along with some sort of 

diabetic inattention,” Appellant’s Brief at 53-54; and (5) Appellant’s mother 

and sister both testified he previously had eye surgery which caused him to 

“always [have] bloodshot eyes.”13 Id. at 57. Appellant concludes two 

“equally reasonable and mutually inconsistent inferences could be drawn 

[and] the factfinder should not have been permitted to guess which 

inference it chose to adopt, especially when one . . . of the two . . . guesses 

resulted in depriving [Appellant] of his liberty.” Id. at 58. We find no relief 

is due.

Preliminarily, we find Appellant’s arguments go to the weight of the 

evidence, and not the sufficiency. Appellant himself cites the evidence that 

he drank four cans of beer on the afternoon of the accident and that two 

BAC tests yielded results of 0.077% and 0.079%. Id. at 5, 58. Indeed, he 

argues two “equally reasonable” inferences could be drawn. Id. at 58; see 

Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014) (stating 

claim that verdict is contrary to weight of evidence concedes there is 

sufficient evidence to sustain verdict).

In considering Appellant’s weight of the evidence claim, we are guided 

 

13 In support of his argument, Appellant extensively cites fifteen witnesses’ 

testimony, including his own. Appellant’s Brief at 46-58.
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by the following principles. 

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.

Landis, 89 A.3d at 699 (citation omitted).

[B]ecause the trial judge has had the opportunity to hear 

and see the evidence presented, an appellate court will 

give the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial court’s 

determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting 

or denying a new trial is the lower court’s conviction that 

the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the 

interest of justice.

Id. (citation omitted).

Appellant was convicted under the following subsection of the DUI 

statute:

(a) General impairment. 

(1) An individual may not drive, operate or be in 

actual physical control of the movement of a vehicle 

after imbibing a sufficient amount of alcohol such that 

the individual is rendered incapable of safely driving, 
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operating or being in actual physical control of the 

movement of the vehicle.

See 75 Pa.C.S. § 3802(a)(1). “To prove homicide by vehicle while DUI, the 

evidence must show that the accused unintentionally caused the death of 

another person as the result of driving in violation of section 3802. 75 

Pa.C.S. § 3735.” Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super. 

2013), appeal denied, 81 A.3d 75 (Pa. 2013).

As stated above, Appellant contends “two . . . equally reasonable and 

mutually inconsistent inferences could be drawn from the same set of 

circumstances.” Appellant’s Brief at 58. We disagree with this premise.

The principle cited by Appellant was announced by the Pennsylvania 

Supreme Court in Commonwealth v. Woong Knee New, 47 A.2d 450 (Pa. 

1946) (“New”).

In [New], the conviction was based entirely on evidence 

which placed defendant with the victim at the victim’s 

home shortly before the victim was there murdered. There 

was, however, no evidence which tended to prove that the 

defendant had committed the crime or which cast doubt on 

the equally likely possibility that an unknown assailant had 

killed the victim after the defendant had left his company. 

In reversing the conviction [the Court] noted that:

When two equally reasonable and mutually 

inconsistent inferences can be drawn from the same 

set of circumstances, a jury must not be permitted 

to guess which inference it will adopt, especially

when one of the two guesses may result in depriving 

a defendant of his life or his liberty.” [New, 47 A.2d 

at 468.]

Commonwealth v. Hubbard, 372 A.2d 687, 691-92 (Pa. 1977). In 
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support of his argument, Appellant cites Hubbard and Commonwealth v. 

Tribble, 467 A.2d 1130 (Pa. 1983).14

In Hubbard, the defendant argued the evidence was insufficient to 

establish murder in the second degree. Hubbard, 372 A.2d at 690. The 

Pennsylvania Supreme Court disagreed, distinguishing the case from New:

This case is not [New. T]he evidence tended to show that 

the victim’s body was deposited [in a cornfield] after the 

strangulation occurred. Thus the murderer would likely be 

a person whose presence in the cornfield at some relevant 

time could be established. Despite repeated denials, [the 

defendant] was placed in that cornfield, at the very point 

where the body was found. The finding of a clear print of 

his boot-heel underneath the victim’s body would indicate 

that [the defendant] had stood on that spot shortly before 

the body was deposited. That the victim was last seen 

alive boarding an automobile which matched the 

description of a car owned by [the defendant], at the 

beckoning of a man with whom the victim was apparently 

familiar, permits an inference that [the defendant] was the 

driver of that vehicle. Tire marks from this vehicle were 

found in the cornfield and were made at the relevant time. 

We cannot say that the jury acted unreasonably in 

concluding that this combination of circumstances proved 

defendant’s guilt beyond a reasonable doubt.

Id. at 692.

In Tribble, the defendant was fired by his employer on April 17, 1980. 

Tribble, 467 A.2d at 1131. The defendant “returned to the job site some 

 

14 Appellant also cites Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). 

However, unlike his citations for Hubbard and Tribble, he provides no 

pinpoint citation, and our review of Grant reveals no discussion pertaining to 

mutually inconsistent references arising from the same facts. See Grant, 

813 A.2d at 738 (announcing general rule that defendant should wait until 

collateral review to raise claims of ineffective assistance of trial counsel).
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time in June of 1980 to inquire about the possibility of being rehired.” Id. 

On June 19, 1980, several trucks owned by the employer were broken into; 

“hand and power tools were missing from” one truck and tools were moved 

from another truck to two others. Id. “The trucks had been locked the 

night before the break-in and secured behind a high chain link fence.” Id. 

The defendant’s fingerprints were found on “the driver-side door button of” 

one truck and “the driver-side wing window of” another. Id. He was found 

guilty at a jury trial of theft of movable property.15 Id. at 1130. On appeal, 

the Pennsylvania Supreme Court reversed, holding: 

While it is a reasonable inference that [the defendant’s] 

fingerprints were impressed on June 18th or 19th, an 

equally reasonable inference may also be drawn that [his] 

fingerprints were impressed prior to the time of the breakin, since [the defendant] was in frequent physical contact 

with the trucks when he worked [there] only two months 

prior to the break-in and/or when he returned to the site in 

June only days prior to the break-in. Furthermore, there is 

no evidence that these trucks were used frequently; a fact 

which, if established, would diminish the possibility that 

the prints were old.

Id. at 1131.

In the instant appeal, Appellant misconstrues the phrase “[w]hen two 

equally reasonable and mutually inconsistent inferences can be drawn from 

the same set of circumstances.” See Hubbard, 372 A.2d at 692 (citing 

New, 47A.2d at 468). In New and Tribble, the same set of facts

 

15 See 18 Pa.C.S. § 3921(a) (theft by unlawful taking or disposition/movable 

property).
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supported two equally reasonably inferences. In New, evidence that the 

defendant was at the victim’s home equally supported findings that he killed 

the victim and he was merely present and left before someone else arrived 

and killed the victim. Hubbard, 372 A.2d at 691-92 (citing New, 47 A.2d 

at 468). In Tribble, the presence of the defendant’s fingerprints equally 

inferred the fingerprints were made on the night of the break-in and 

previously when he was employed there. Tribble, 467 A.2d at 1131. In 

Hubbard, in which the Supreme Court distinguished New, the defendant 

denied he was in the cornfield. Hubbard, 372 A.2d at 692.

We find the instant case akin to Hubbard. The Commonwealth 

presented evidence that tended to show Appellant was impaired by alcohol 

at the time of the accident. Appellant, meanwhile, presented evidence that 

he instead was suffering from a diabetic episode. Accordingly, the principle 

in New does not apply, as the two inferences—alcohol intoxication and 

diabetic episode—did not arise from “the same set of circumstances.” See 

Hubbard, 372 A.2d at 692. Instead, the two inferences arose from 

competing evidence presented by the parties at trial. Appellant’s rationale—

that the jury “should not have been permitted to guess which inference it 

chose to adopt”—would require acquittal whenever a defendant advances an 

alternative theory of the case. This was not the holding announced in New. 

Instead, in the instant matter, the jury was free to believe all, part, or none 

of the evidence presented by both parties, and its finding that Appellant 
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committed DUI is not so contrary to the evidence that it shocks one’s sense 

of justice. See Landis, 89 A.3d at 699. We therefore hold the trial court 

did not abuse its discretion in denying Appellant’s weight of the evidence 

claim in his post-sentence motion. See id.

Appellant’s third claim on appeal is that the court erred in allowing 

Brian Seay, the supervisor of forensic toxicology at Quest Diagnostics, to 

testify about the blood test results obtained in his laboratory. We note, as 

did the trial court, that at the time of trial, only the Superior Court opinion in 

Yohe had been issued. See Commonwealth v. Yohe, 39 A.3d 381 (Pa. 

Super. 2012), aff’d, 79 A.3d 520 (Pa. 2013), cert. denied, 134 S. Ct. 2662 

(U.S. 2014). Approximately one and a half months after trial, and while 

Appellant’s post-sentence motion was pending, the Supreme Court affirmed 

the Superior Court’s decision in Yohe. Yohe, 79 A.3d at 523, 543. Because 

Appellant’s claim pertains to Yohe, as well as Bullcoming v. New Mexico, 

131 S. Ct. 2705 (U.S. 2011), we summarize those decisions first.

In Yohe, our Supreme Court stated:

Whether the admission of the Toxicology Report 

violated Appellant’s rights under the Confrontation Clause 

is a question of law, for which our standard of review is de 

novo and our scope of review is plenary.

The Confrontation Clause of the Sixth Amendment, 

made applicable to the States via the Fourteenth 

Amendment, provides that “[i]n all criminal prosecutions, 

the accused shall enjoy the right . . . to be confronted with 

the witnesses against him. . . .”[ ] . . . The Confrontation 

Clause, the High Court explained, prohibits out-of-court 

testimonial statements by a witness unless the witness is 
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unavailable and the defendant had a prior opportunity for 

cross-examination.[ ]

Yohe, 79 A.3d at 530-31 (citations omitted).

In Bullcoming, the defendant was charged with driving 

while intoxicated, and, at his subsequent trial, the 

laboratory report of his BAC was offered into evidence. 

The report was completed, signed, and certified by an 

analyst who was not called to testify. Instead, the 

prosecutor called as a witness another analyst from the 

same lab to testify generally about lab procedures and 

equipment. . . . 

Id. at 527 (citing Bullcoming, 131 S. Ct. at 2709, 2711-12). The United 

States Supreme Court held the trial court erred in “permit[ing] the 

testimonial statement of one witness . . . to enter into evidence through the 

in-court testimony of a second person . . . “ Yohe, 79 A.3d at 527 (citing 

Bullcoming, 131 S. Ct. at 2713). “The [Bullcoming] Court specifically 

disapproved of such ‘surrogate testimony,’ which could not have conveyed 

‘what [the certifying analyst] knew or observed about the events his 

certification concerned, i.e., the particular test and testing process he 

employed,’ nor would it ‘expose any lapses or lies on the certifying analyst’s 

part.’” Yohe, 79 A.3d at 527 (citing Bullcoming, 131 S. Ct. at 2715).

In Yohe, the trial court admitted into evidence a toxicology report 

authored by a toxicologist and assistant laboratory director, Dr. Lee Blum, as 

well as the expert testimony of Dr. Blum. Yohe, 79 A.3d at 524. “Dr. Blum 

did not handle [the defendant’s] blood sample, prepare portions for testing, 

place the prepared portions in the machines, or retrieve the portions after 
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testing[.]” Id. at 540. However,

he reviewed the case folder, verified the chain of custody 

information and examined the personal identification 

information[,] checked the testing that was performed and 

the data that resulted, evaluated the [raw] analytical data 

from the duplicate gas chromatography and the enzymatic 

assay, compared the results of the two gas 

chromatography tests, compared the result of the 

enzymatic assay test to the two gas chromatography tests, 

ensured that these numbers supported each other, and 

reported the lowest of the two gas chromatography test 

results as [the defendant’s] BAC.

Id. at 539-40 (emphases omitted). The Pennsylvania Supreme Court held:

. . . Dr. Blum is the analyst who determined [the 

defendant’s] BAC. Although he relied on the raw data 

produced by the lab technicians and utilizedthis raw data in 

reaching an expert opinion premised on his evaluation of 

the case file, he is the only individual who engaged in the 

critical comparative analysis of the results of the gas 

chromatograph tests and the enzymatic assay and 

determined [the defendant’s] BAC.

Id. at 540. The Court thus concluded the Commonwealth “complied with 

Bullcoming by assuring [the defendant’s] right to be confronted with the incourt testimony of the right to be confronted with the in-court testimony of 

the scientist who evaluated the raw data in the case file and signed the 

certification.” Id. at 541.

In the instant appeal, Appellant avers “Mr. Seay’s involvement in 

reviewing [Appellant’s] blood test results clearly falls far short of the 

standards set forth by the Supreme Court in” Yohe. Appellant’s Brief at 66. 

Appellant acknowledges Mr. Seay’s testimony that “he was involved with the 

volatiles blood testing portion of the tests,” but maintains Mr. Seay’s 
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conclusion was not based on his own analysis of the raw data and that “Mr. 

Seay did not independently determine and certify the results.” Id. 

Appellant concludes “Mr. Seay was a surrogate witness” under Bullcoming, 

and thus his right to confrontation under the Sixth Amendment was violated. 

We find no relief is due.

In the instant case, Brian Seay’s testimony at trial was relatively brief. 

See N.T. at 190-203. With respect to his role in this case, Mr. Seay testified 

on direct examination by the Commonwealth that he “reviewed the data.” 

Id. at 191. The following exchange occurred:

[Commonwealth:] . . . What is your involvement in 

regards to the report[, Exhibit C-9,] I’m about to hand 

you?

[Mr. Seay:] My involvement was to review the results 

of the test performed by the technologist.

Q. Do you normally do that?

A. Yes. It’s a normal standard operating procedure for 

a certified scientists to review the results before released 

[sic]. The technologists are not qualified to review and 

release results.

* * *

Q. And what involvement and the results regarding C9, please [sic]?

A. I was involved with the volatiles blood testing 

portion of this test which lists the methanol, ethanol, 

isopropanol, and acetone results. And we have [a BAC of 

0.079%.]

Id. at 193-94.
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On cross-examination, Mr. Seay responded to defense counsel’s 

questions as follows:

[Mr. Seay:] I did not perform the testing, but I 

reviewed it.

* * *

[Appellant’s counsel: You did not receive the specimen 

or log it into your computer system?]

[Mr. Seay:] Only thing I did was enter the results to be 

released.

Id. at 197-98.

The above passages are the sum of Mr. Seay’s testimony as to what 

actions he took in this case. We agree with Appellant that this is less 

descriptive than the actions testified to by Dr. Blum in Yohe. See Yohe, 79 

A.3d at 539-40. Nevertheless, we disagree that Mr. Seay was merely a 

surrogate witness under Bullcoming. In Bullcoming, the witness was 

merely “another analyst from the lab [who] testif[ied] generally about lab 

procedures and equipment.” Yohe, 79 A.3d at 527. Here, Mr. Seay 

testified that he “was involved with the volatiles blood testing” and that he 

reviewed the results of the test, where the technologists were not qualified 

to review and release results. N.T. at 193. Accordingly, we agree with the 

trial court “that he was competent to testify to the truth of the statements 

made in the report and that Appellant’s right to confrontation was not 

violated.” See Trial Ct. Op. at 6.

Furthermore, if the court erred in allowing the evidence, we would 
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hold it was harmless error.

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 

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. Atkinson, 987 A.2d 743, 752 (Pa. Super 2009) 

(citation omitted).

Appellant does not challenge the testimony of Adrienne Strawser, who 

drew and tested his blood at Lewistown Hospital. Ms. Strawser testified she 

drew one test tube of blood from Appellant and tested it herself for blood 

alcohol content, and the test showed a BAC of 0.077%. N.T. at 168. She 

drew four additional tubes to send to Quest for test toxicology testing; Quest 

happens to also test for alcohol. Id. at 168-69. Ms. Strawser’s test result 

was lower than that of Quest; Seay testified the Quest test yielded a BAC of 

0.079%. Accordingly, Mr. Seay’s testimony did not prejudice Appellant and 

was cumulative of Ms. Strawser’s testimony, and the Commonwealth’s 

“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.” See 

Atkinson, 987 A.2d at 752.

Finding no relief due on Appellant’s claims, we affirm the judgment of 
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sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/2015