AI Case Brief
Generate an AI-powered case brief with:
📋Key Facts
⚖️Legal Issues
📚Court Holding
💡Reasoning
🎯Significance
Estimated cost: $0.10–$0.50 per brief, depending on opinion length and retries
Full Opinion
J-A13032-25
2025 PA Super 143
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TREVOR JOEL BLOOM :
:
Appellant : No. 866 WDA 2024
Appeal from the Judgment of Sentence Entered February 12, 2024
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000062-2023
BEFORE: BOWES, J., OLSON, J., and BENDER, P.J.E.
OPINION BY BENDER, P.J.E.: FILED: July 10, 2025
Appellant, Trevor Joel Bloom, appeals from the judgment of sentence of
6 to 12 years’ incarceration, imposed after he was convicted by a jury of drug
delivery resulting in death (DDRD), 18 Pa.C.S. § 2506(a), delivery of a
controlled substance, 35 P.S. § 780-113(a)(30),1 and recklessly endangering
another person (REAP), 18 Pa.C.S. § 2705. After careful review, we affirm.
____________________________________________
1 Appellant refers to this offense as possession with intent to deliver (PWID),
which is also encompassed by section 780-113(a)(30). See 35 P.S. § 780-
113(a)(30) (“Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled substance
by a person not registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating, delivering or
possessing with intent to deliver, a counterfeit controlled substance.”)
(emphasis added). However, the criminal complaint makes it clear that
Appellant was charged with delivery of a controlled substance. See Criminal
Complaint, 1/19/23, at 2 (“The defendant did deliver/provide the victim with
Fentanyl, being a Schedule II Controlled Substance.”). Thus, we refer to this
offense as delivery of a controlled substance, rather than PWID.
J-A13032-25
Appellant’s convictions stem from evidence that on December 21, 2021,
he provided heroin containing Fentanyl to Lindsey LaBorde (“the victim”), who
then died from an accidental overdose of that drug. Appellant (an admitted
long-time heroin user) and the victim (who allegedly had never used heroin
before the night she died), lived together. On December 21, 2021, the victim
complained to Appellant that she had a headache. Appellant “cut a very small
line of heroin and told her she might want to take it if she wanted to feel
better.” Appellant’s Brief at 7. Appellant then left the room and was gone
“for about 20 minutes. When he came back…, he found [the victim] slumped
on the couch. He placed her on the floor while attempting to resuscitate her.”
Id. at 7-8 (citations omitted). Appellant called 911, and police and
paramedics arrived at the scene. The victim was subsequently pronounced
dead. After toxicology testing showed a large quantity of Fentanyl in her
blood, her cause of death was ruled to be an accidental overdose.2
Approximately one year later, Appellant was charged with the above-
stated offenses, as well as involuntary manslaughter, 18 Pa.C.S. § 2504(a).
He proceeded to a jury trial in December of 2023. At the close thereof, the
jury convicted him of all charges except for the involuntary manslaughter
count. On February 12, 2024, the court sentenced Appellant to the aggregate
term set forth supra. He filed a timely post-sentence motion, and the
____________________________________________
2 We note that, although Appellant refers to the line of drugs he laid out for
the victim as heroin, he does not dispute that those drugs could have
contained Fentanyl.
-2-
J-A13032-25
Commonwealth also filed a motion for reconsideration of Appellant’s sentence,
arguing that a lengthier term was warranted. On July 8, 2024, the court
denied both parties’ motions.
Appellant filed a timely notice of appeal, and he and the court complied
with Pa.R.A.P. 1925. Herein, Appellant raises four issues for our review:
1) Where there was insufficient evidence that Appellant gave a
controlled substance to the [victim] and that he had no intention
of giving her same, was the evidence insufficient as a matter of
law to prove either the [DDRD] charge or the crime of [delivery of
a controlled substance]?
2) Where the Commonwealth did not present a witness who
analyzed the blood of the [victim], thereby denying the right to
cross-examine that analyst, yet the lower court permitted the
Medical Examiner to rely on this toxicology report, was it error to
permit that expert to testify as to the results of that report, which
formed the sole basis for opining that the cause of death was the
ingestion of [F]entanyl?
3) Where the Comment to Pa.R.E[]. 703 reflects that when an
expert relies on the report of another that was otherwise
inadmissible, did the lower court err and compound the error
raised in the preceding question, by not instructing the jury that
it could not consider those facts as substantive evidence?
4) Where there were significant mitigating factors presented to
the lower court at the time of sentencing[,] the court considered
an improper factor when imposing [Appellant’s] sentenc[e,] and
the court provided no sentencing rationale whatsoever, should
this Court vacate the sentence and remand for resentencing?
Appellant’s Brief at 3-4.
First Issue
Appellant first challenges the sufficiency of the evidence.
“Whether the evidence was sufficient to sustain the charge
presents a question of law.” Commonwealth v. Toritto, 67 A.3d
29 (Pa. Super. 2013) (en banc). Our standard of review is de
-3-
J-A13032-25
novo, and our scope of review is plenary. Commonwealth v.
Walls, 144 A.3d 926 (Pa. Super. 2016). In conducting our
inquiry, we examine[,]
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable
to the Commonwealth as verdict-winner, [is] sufficient to
establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the
evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts
regarding a defendant’s guilt unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. When
evaluating the credibility and weight of the evidence, the
fact-finder is free to believe all, part or none of the evidence.
For purposes of our review under these principles, we
must review the entire record and consider all of the
evidence introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.
2014) (quotation omitted).
Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021).
Here, Appellant avers that the evidence failed to prove he committed
DDRD or delivery of a controlled substance. A person commits DDRD
if the person intentionally administers, dispenses, delivers, gives,
prescribes, sells or distributes any controlled substance or
counterfeit controlled substance in violation of section 13(a)(14)
or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as
The Controlled Substance, Drug, Device and Cosmetic Act, and
another person dies as a result of using the substance.
18 Pa.C.S. § 2506(a) (footnote omitted). We have stated that this crime
“consists of two principal elements: (i) [i]ntentionally administering,
dispensing, delivering, giving, prescribing, selling or distributing any
controlled substance or counterfeit controlled substance and (ii) death caused
-4-
J-A13032-25
by (‘resulting from’) the use of that drug.” Commonwealth v.
Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015) (footnote omitted).
Additionally,
[t]he offense of delivery of a controlled substance is provided for
in section 780–113(a)(30) of The Controlled Substance, Drug,
Device and Cosmetic Act, (the “Act”). According to that section,
the offense occurs in the following circumstances:
Except as authorized by this act, the manufacture, delivery,
or possession with intent to manufacture or deliver, a
controlled substance by a person not registered under this
act, or a practitioner not registered or licensed by the
appropriate State board, or knowingly creating, delivering
or possessing with intent to deliver, a counterfeit controlled
substance.
35 P.S. § 780–113(a)(30). The term delivery, as used in this
section, is defined by the Act as “the actual, constructive, or
attempted transfer from one person to another of a controlled
substance, other drug, device or cosmetic whether or not there is
an agency relationship.” 35 P.S. § 780–102. Thus, for a
defendant to be liable as a principal for the delivery of a controlled
substance there must be evidence that he knowingly made an
actual, constructive, or attempted transfer of a controlled
substance to another person without the legal authority to do so.
Commonwealth v. Murphy, 844 A.2d 1228, 1233–34 (Pa. 2004) (footnote
and one citation omitted).
In this case, Appellant argues that the evidence was insufficient to prove
either of these crimes because, although he gave a line of heroin/Fentanyl to
the victim, he claims that it was a “joke,” and he did not intend for her to
actually use the drugs. Appellant’s Brief at 17. He also contends that it was
unclear whether the victim ingested the drugs that he gave her. Appellant
stresses that he left the room before she did so, and when he and police
-5-
J-A13032-25
officers were in the room later and he “wiped his hand on top of the cigar box
where [the] substance was supposedly laid out,” they “could see powder flying
in the air[,]” indicating the victim had not ingested the line of drugs put there
by Appellant. Id. at 18. Regarding the drug-delivery charge, Appellant also
insists that the victim was the one who “would often purchase these drugs
and/or possess them and try to dole them out to [Appellant,]” and, thus, the
only drug delivery “may have been from [the victim] to [Appellant].” Id. at
19.
Appellant’s arguments are unconvincing. The trial court aptly explained
how the evidence in this case sufficiently supported the jury’s verdict, as
follows:
Here, the court believes that the Commonwealth presented more
than adequate [evidence] to prove the [Appellant] committed the
offense of [DDRD]. At trial[,] evidence was presented that
[Appellant] made a “line for [the victim] to use the Fetanyl [sic]
because of a headache.” Officer [Zachary] Cowan testified that
[Appellant] related that he put out a quarter of a stamp bag for
[the victim] and he even drew a line depicting the amount that he
provided to her. In fact, [Appellant] drew the line twice to
describe how much he gave [the victim,] and each time, they were
the same length. There was also testimony that [Appellant] knew
“everything you get these days is essentially Fetanyl [sic]. That
it is either laced with Fetanyl [sic] or straight Fetanyl [sic], but
you are not really getting heroin anymore.” There was also
testimony during trial that [the victim] was pronounced dead on
December 21, 2021. Dr. [Harry] Kamerow[, an expert pathologist
who conducted the autopsy of the victim,] testified that the
toxicology report showed that [the victim] had “30 times the
upper limit of therapeutic” [F]entanyl in her system, which he
stated was a lethal concentration. He explained that the cause of
death was “accidental overdose” and more specifically, a “Fetanyl
[sic] overdose."
-6-
J-A13032-25
This [c]ourt believes that this evidence presented at trial by the
Commonwealth proved each element of [DDRD] beyond a
reasonable doubt. [Appellant] stated that he put out a “line” for
[the victim] to use. His statements tend to prove that he
intentionally provided the [F]entanyl to [the victim]. He was able
to show the officer the amount that he provided and even stated
that he put it out specifically for her. Providing the [F]entanyl to
[the victim] is a violation of the Controlled Substance act, as he
delivered a controlled substance to [the victim]. Lastly, the cause
of death was a “[F]entanyl overdose,” which satisfies the element
that [the victim] died because of the [F]entanyl that was provided
to her by [Appellant].
***
[Appellant] argues that [the victim] could have ingested Fentanyl
from another source. However, just because [Appellant] puts
forth another possibility, that does not overcome the jury’s verdict
that [Appellant] was guilty on the charge.
[Appellant] also moves for Judgment of Acquittal on the charge of
[delivery of a controlled substance,] alleging that the evidence
was insufficient. For the reasons stated above, the court believes
the Commonwealth’s evidence at trial was sufficient to prove each
element of the charge of [delivery]…. … [Appellant] did state that
he put the [F]entanyl out for [the victim] to use, thereby
delivering the [F]entanyl to [the victim, and] there is no argument
that [Appellant] is not a person registered to deliver that
controlled substance.
Trial Court Opinion (TCO), 9/30/24, at 4-5 (unnecessary capitalization
omitted; some formatting altered).
We agree with the trial court’s rationale. We add that Appellant’s claim
that he did not intend for the victim to actually use the drugs he gave her
does not invalidate his DDRD conviction. The evidence clearly established that
Appellant intentionally gave heroin/Fentanyl to the victim; whether he
intended for her to use those drugs is irrelevant to sustaining his DDRD
conviction. See Kakhankham, 132 A.3d at 991-92 (stating that DDRD
-7-
J-A13032-25
merely requires “intentionally … dispensing, delivering, [or] giving …
any controlled substance” to a person that ultimately causes their death)
(emphasis added).
We also briefly address Appellant’s argument that the police could “see
powder flying in the air” when he wiped his hand over the cigar box where he
had laid out a “miniscule amount” of Fentanyl and, thus, “there is no evidence
that [the victim] took the supposed line that [Appellant] had put out for her.”
Appellant’s Brief at 18. Appellant contends that in this regard, “the
Commonwealth presented evidence of both innocence and guilt[,]” id., and
[w]hen 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. When a party on whom rests
the burden of proof in either a criminal or a civil case, offers
evidence consistent with two opposing propositions, he proves
neither.
Id. at 19 (quoting Commonwealth v. Woong Knee New, 47 A.2d 450, 468
(Pa. 1946)).
We disagree with Appellant’s suggestion that it was equally reasonable
to infer that the victim did not take the line of drugs provided by Appellant.
Appellant claims that Officer Cowen, who was present at the scene, testified
that he was “not sure” if the line of drugs “was still there or not.” Id. at 8.
However, on the page of testimony cited by Appellant to support this claim,
Officer Cowan had the following exchange with the prosecutor:
[The Commonwealth:] Okay. And so [Appellant] showed you
where he cut the line. Was the line still on that?
-8-
J-A13032-25
[Officer Cowan:] There was residue from it. That is what he
swiped on the floor.
[The Commonwealth:] Okay. But there was not a line actually
present.
[Officer Cowan:] Not that I believe.
N.T. Trial, 12/18/23-12/20/23, at 86 (emphasis added). Officer Cowan did
not say that he was “not sure” if the line of drugs was gone, as Appellant
claims; instead, the officer testified that he believed the line was gone and
that Appellant only swiped away residue left from that line.
In sum, viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we agree with the trial court that it was
reasonable for the jury to infer that the Fentanyl in the victim’s system was
from the drugs provided by Appellant, and that the victim died from ingesting
those drugs. Thus, the evidence was sufficient to support Appellant’s
convictions for DDRD and delivery of a controlled substance.
Second Issue
Next, Appellant challenges the trial court’s permitting Dr. Kamerow to
testify about the toxicology report he used to determine the victim’s cause of
death, where Appellant had no opportunity to cross-examine the toxicologist
who tested the victim’s blood samples and drafted the report. According to
Appellant, the Commonwealth’s position on the admissibility of Dr. Kamerow’s
testimony rested on Pennsylvania Rule of Evidence 703, which states:
An expert may base an opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in the particular field would reasonably rely on those kinds
-9-
J-A13032-25
of facts or data in forming an opinion on the subject, they need
not be admissible for the opinion to be admitted.
Pa.R.E. 703. However, the comment to the rule states, in pertinent part, that
“[a]n expert witness cannot be a mere conduit for the opinion of another.”
Pa.R.E. 703 Cmnt. Here, Appellant insists that Dr. Kamerow was merely a
conduit for admitting the opinion of the toxicologist. Appellant contends that
admitting the toxicology report without permitting him to cross-examine the
toxicologist violated his right to confront the witnesses against him under both
the Sixth Amendment of the United States Constitution, and Article 1, Section
9 of the Pennsylvania Constitution.3
In analyzing Appellant’s argument, we begin by acknowledging that
“[t]he issue of whether a defendant was denied his right to confront a witness
under the confrontation clause of the Sixth Amendment is a question of law
for which our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Milburn, 72 A.3d 617, 618 (Pa. Super. 2013)
(citation and internal quotation marks omitted). Additionally, the United
States Supreme Court has explained that
[t]he Sixth Amendment’s Confrontation Clause guarantees a
criminal defendant the right to confront the witnesses against him.
The Clause bars the admission at trial of “testimonial statements”
of an absent witness unless she is “unavailable to testify, and the
defendant ha[s] had a prior opportunity” to cross-examine her.
Crawford v. Washington, 541 U.S. 36, 53–54 … (2004). And
that prohibition applies in full to forensic evidence. So a
____________________________________________
3 Although Appellant mentions the Pennsylvania Constitution, he does not
develop a separate argument that his rights under our Constitution were
violated. Thus, we likewise limit our analysis to the confrontation rights
provided by the Sixth Amendment of the United States Constitution.
- 10 -
J-A13032-25
prosecutor cannot introduce an absent laboratory analyst’s
testimonial out-of-court statements to prove the results of
forensic testing. See Melendez-Diaz v. Massachusetts, 557
U.S. 305, 307, 329 … (2009).
Smith v. Arizona, 602 U.S. 779, 783 (2024).
Appellant relies heavily on Smith to support his argument that Dr.
Kamerow’s testimony regarding the toxicology report violated his
Confrontation Clause rights. In Smith, the Court addressed the application
of Confrontation Clause “principles to a case in which an expert witness
restate[d] an absent lab analyst’s factual assertions to support his own opinion
testimony.” Id. The Smith Court began by noting that,
[t]he Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right … to be confronted
with the witnesses against him.” In operation, the Clause protects
a defendant’s right of cross-examination by limiting the
prosecution’s ability to introduce statements made by people not
in the courtroom.
Id. at 783-84.
The Court clarified, however, that “[t]he Clause’s prohibition ‘applies
only to testimonial hearsay’ — and in that two-word phrase are two limits.”
Id. at 784 (citing Davis v. Washington, 547 U.S. 813, 823 (2006)). “First,
in speaking about ‘witnesses’ — or ‘those who bear testimony’ — the Clause
confines itself to ‘testimonial statements’….” Id. (citations omitted;
emphasis added).
Second…, the Clause bars only the introduction of hearsay —
meaning, out-of-court statements offered to prove the truth of the
matter asserted. When a statement is admitted for a reason
unrelated to its truth, we have held, the Clause’s role in protecting
the right of cross-examination is not implicated. That is because
- 11 -
J-A13032-25
the need to test an absent witness ebbs when her truthfulness is
not at issue.
Id. at 785 (cleaned up).
The Smith Court then explained how its prior decisions “made clear that
the Confrontation Clause applies to forensic reports.” Id. Namely,
[i]n Melendez-Diaz…, state prosecutors introduced “certificates
of analysis” (essentially, affidavits) stating that lab tests had
identified a substance seized from the defendant as cocaine. But
the State did not call as witnesses the analysts who had conducted
the tests and signed the certificates. We held that a
straightforward application of Crawford showed a constitutional
violation. The certificates were testimonial: They had an
evidentiary purpose, identical to the one served had the analysts
given live, in-court testimony. And the certificates were offered
to prove the truth of what they asserted: that the seized powder
was in fact cocaine. So the defendant had a right to cross-
examine the lab-analyst certifiers. In reaching that conclusion,
we rejected the State’s claim that the results of so-called neutral,
scientific testing should be subject to a different rule. We again
underscored that the Confrontation Clause commanded not
reliability but one way of testing it — through cross-examination.
And we thought that method might have plenty to do in cases
involving forensic analysis. After all, lab tests are not uniquely
immune from the risk of manipulation or mistake. The defendant
might have used cross-examination to probe what tests the
analysts performed, whether those tests presented a risk of error,
and whether the analysts had the right skill set to interpret their
results.
Two years later, the Court relied on Melendez-Diaz to hold that
a State could not introduce one lab analyst’s written findings
through the testimony of another. In Bullcoming v. New
Mexico, 564 U.S. 647, 651–652 … (2011), an analyst tested the
blood-alcohol level of someone charged with drunk driving, and
prepared a testimonial certification reporting that the level was
higher than legal [blood alcohol levels]. But by the time the
driver’s trial began, that analyst had been placed on unpaid leave.
So the State instead called a different analyst from the same lab
to testify as to what the certification said. The substitute analyst
had similar qualifications, and knew about the type of test
performed. But the Court held that insufficient to satisfy the
- 12 -
J-A13032-25
Confrontation Clause. The surrogate testimony, the Court
explained, could not convey what the certifying analyst knew or
observed about the particular test and testing process he
employed. Nor could that testimony expose any lapses or lies on
the certifying analyst’s part, or offer any insight into whether his
leave-without-pay was the result of misconduct. Concluded the
Court: “[W]hen the State elected to introduce [the] certification,”
its author — and not any substitute — “became [the] witness [that
the defendant] had the right to confront.”
Smith, 602 U.S. at 785-86 (cleaned up).
Given this legal backdrop, the Smith Court assessed Smith’s challenge
to the trial court’s admission of testimony by Greggory Longoni, a forensic
scientist with the Arizona Department of Public Safety (DPS), about drug
testing performed by a different scientist, Elizabeth Rast, who had been
previously employed by DPS and who had conducted tests on suspected drugs
found in Smith’s possession. Id. at 789-90. “Longoni prepared for trial by
reviewing Rast’s report and notes” and when he “took the stand, he referred
to those materials and related what was in them, item by item.” Id. at 791.
Longoni also explained the methods Rast had used to analyze the substances,
and the lab’s policies and practices, before offering his “independent opinion”
that the items submitted for testing were “usable quantities” of various drugs,
including methamphetamine, marijuana, and cannabis. Id.
After Smith was convicted, he argued on appeal that Longoni’s
testimony violated his Confrontation Clause rights, as the “real witness against
him … was Rast” and “he had not had the opportunity to cross-examine her.”
Id. In analyzing Smith’s claim, the High Court initially recognized that
“Smith’s confrontation claim can succeed only if Rast’s statements came into
- 13 -
J-A13032-25
evidence for their truth[,]” as “the Clause applies solely to testimonial
hearsay.” Id. at 792 (emphasis in original). The Smith Court explained that
“a court analyzing a confrontation claim must identify the role that a given
out-of-court statement — here, Rast’s statements about her lab work —
served at trial.” Id. at 793. Ultimately, the Court concluded that,
Rast’s statements … came in for their truth, and no less because
they were admitted to show the basis of Longoni’s expert opinions.
All those opinions were predicated on the truth of Rast’s factual
statements. Longoni could opine that the tested substances were
marijuana, methamphetamine, and cannabis only because he
accepted the truth of what Rast had reported about her work in
the lab — that she had performed certain tests according to
certain protocols and gotten certain results. And likewise, the jury
could credit Longoni’s opinions identifying the substances only
because it too accepted the truth of what Rast reported about her
lab work (as conveyed by Longoni). If Rast had lied about all
those matters, Longoni’s expert opinion would have counted for
nothing, and the jury would have been in no position to convict.
So the State’s basis evidence — more precisely, the truth of the
statements on which its expert relied — propped up its whole case.
But the maker of those statements was not in the courtroom, and
Smith could not ask her any questions.
Id. at 798. In sum, because “the State used Longoni to relay what Rast wrote
down about how she identified the seized substances[,] Longoni thus
effectively became Rast’s mouthpiece” and his testimony was hearsay. Id. at
800.
However, that conclusion did not lead the Smith Court to hold that
Longoni’s testimony violated Smith’s Confrontation Clause rights. Instead,
the Smith Court clarified that,
[w]hat remains is whether the out-of-court statements Longoni
conveyed were testimonial. As earlier explained, that question
- 14 -
J-A13032-25
is independent of everything said above: To implicate the
Confrontation Clause, a statement must be hearsay (“for
the truth”) and it must be testimonial—and those two
issues are separate from each other. The latter, this Court
has stated, focuses on the “primary purpose” of the statement,
and in particular on how it relates to a future criminal proceeding.
A court must therefore identify the out-of-court statement
introduced, and must determine, given all the “relevant
circumstances,” the principal reason it was made.
Id. at 800-01 (cleaned up; emphasis added). In the end, the Smith Court
did not answer the question of whether Longoni’s statements were
testimonial, as it was not presented in Smith’s petition for certiorari, and the
Arizona Court of Appeals had also not decided that issue. Id. at 801.
Accordingly, the Court remanded for the state appellate court to rule on the
testimonial issue in the first instance. It advised that in doing so, the state
appellate court should first determine exactly which of Rast’s statements were
at issue, and then discern if the “the document’s primary purpose” was “a
focus on court.” Id. at 802.
Applying Smith and the cases on which it relies to the instant matter,
it is apparent that Appellant only had a Confrontation Clause right to confront
the toxicologist who drafted the report relied on by Dr. Kamerow if the report
constituted testimonial hearsay.
First, we assess whether the report was hearsay. In regard to this
question, the Smith Court explained:
If an expert for the prosecution conveys an out-of-court statement
in support of his opinion, and the statement supports that opinion
only if true, then the statement has been offered for the truth of
what it asserts. How could it be otherwise? The whole point of
the prosecutor’s eliciting such a statement is to establish —
- 15 -
J-A13032-25
because of the statement’s truth — a basis for the jury to credit
the testifying expert’s opinion. Or said a bit differently, the truth
of the basis testimony is what makes it useful to the prosecutor;
that is what supplies the predicate for — and thus gives value to
— the state expert’s opinion. So there is no meaningful distinction
between disclosing an out-of-court statement to explain the basis
of an expert’s opinion and disclosing that statement for its truth.
Smith, 602 U.S. at 795 (cleaned up; emphasis in original)
In this case, the toxicologist prepared a report stating, inter alia, the
amount of Fentanyl determined to be in the victim’s blood. Dr. Kamerow then
used that report, because of its truth, to opine that the victim died from an
overdose of Fentanyl. More specifically, Dr. Kamerow testified that, after
completing an internal and external examination of the victim’s body, he was
unable to determine the cause of death. N.T. Trial at 212-13. When asked
what he had used, then, “to come to that determination[,]” he answered,
“Toxicology. I ran the blood and the vitreous [fluid].” Id. at 213. Dr.
Kamerow stated that in the toxicology report he received, “the main finding”
was that the victim had a “Fentanyl concentration of 29.5 nanograms per
millileter.” Id. The doctor explained that this was “a lethal concentration of
Fentanyl.” Id. He also testified that the toxicology report indicated the victim
had “a methamphetamine level at 1.5 nanograms per millileter,” which “is a
very small concentration of methamphetamine.” Id. at 214. Ultimately, Dr.
Kamerow concluded that “the Fentanyl concentration in and of itself,”
independent of any other substances found in the victim’s system, was
“sufficient … to cause the death” of the victim. Id. at 214-15. Accordingly,
- 16 -
J-A13032-25
the doctor opined that the cause of the victim’s death was accidental “Fentanyl
overdose.” Id. at 215, 216.
Clearly, Dr. Kamerow’s opinion conveyed the toxicology report, and the
report supported his opinion only if it was true as to the amount of Fentanyl
in the victim’s blood. Thus, the toxicology report came in for the truth of what
it asserted and constituted hearsay. See Smith, 602 U.S. at 795.
The next question is whether the toxicology report was testimonial.
Again, the Smith Court did not address this issue; thus, we are guided
primarily by Melendez-Diaz and Bullcoming. To begin, as discussed supra,
the Melendez-Diaz Court assessed the testimonial nature of “certificates of
analysis showing the results of [a] forensic analysis performed on … seized
substances” found in “19 small[] plastic bags” that had been seized from
Melendez-Diaz. Melendez-Diaz, 557 U.S. at 308.
The certificates reported the weight of the seized bags and stated
that the bags “[h]a[ve] been examined with the following results:
The substance was found to contain: Cocaine.” The certificates
were sworn to before a notary public by analysts at the State
Laboratory Institute of the Massachusetts Department of Public
Health, as required under Massachusetts law.
Id.
In concluding the certificates were testimonial, the Melendez-Diaz
Court explained:
The documents at issue here, while denominated by
Massachusetts law [as] “certificates,” are quite plainly affidavits:
“declaration[s] of facts written down and sworn to by the
declarant before an officer authorized to administer oaths.”
Black’s Law Dictionary 62 (8th ed. 2004). They are
incontrovertibly a “‘solemn declaration or affirmation made for the
- 17 -
J-A13032-25
purpose of establishing or proving some fact.’” Crawford, supra,
at 51 … (quoting 2 N. Webster, An American Dictionary of the
English Language (1828)). The fact in question is that the
substance found in the possession of Melendez–Diaz and his
codefendants was, as the prosecution claimed, cocaine — the
precise testimony the analysts would be expected to provide if
called at trial. The “certificates” are functionally identical to live,
in-court testimony, doing “precisely what a witness does on direct
examination.” Davis…, 547 U.S. [at] 830 … (emphasis deleted).
Here, moreover, not only were the affidavits “‘made under
circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a later
trial,’” Crawford, supra, at 52, … but under Massachusetts law[,]
the sole purpose of the affidavits was to provide “prima facie
evidence of the composition, quality, and the net weight” of the
analyzed substance, Mass. Gen. Laws, ch. 111, § 13. We can
safely assume that the analysts were aware of the affidavits’
evidentiary purpose, since that purpose — as stated in the
relevant state-law provision — was reprinted on the affidavits
themselves.
Id. at 310-11 (some citations omitted; emphasis in original). Accordingly,
the Melendez-Diaz Court held that the affidavits were testimonial.
In Bullcoming, the Court held that a forensic report containing a
certification that Bullcoming’s blood alcohol concentration (BAC) was well
above the threshold for the offense of driving under the influence of alcohol
(DUI) was testimonial and, thus, could not come in through the testimony of
a scientist who did not sign the certification, or perform or observe the test
reported in the certification. The Court highlighted that the report set forth
information “filled in by [the] arresting officer[,]” including the “reason [the]
suspect [was] stopped” and the date and time the blood sample was drawn.
Bullcoming, 564 U.S. at 653. “The arresting officer also affirmed that he had
arrested Bullcoming and witnessed the blood draw.” Id. Additionally,
- 18 -
J-A13032-25
the report presented the “certificate of analyst,” completed and
signed by Curtis Caylor, the … forensic analyst assigned to test
Bullcoming’s blood sample. Caylor recorded that the BAC in
Bullcoming’s sample was 0.21 grams per hundred milliliters, an
inordinately high level. Caylor also affirmed that the seal of the
sample was received intact and broken in the laboratory, that the
statements in the analyst’s block of the report are correct, and
that he had followed the procedures set out on the reverse of the
report. Those procedures instructed analysts, inter alia, to retain
the sample container and the raw data from the analysis, and to
note any circumstance or condition which might affect the
integrity of the sample or otherwise affect the validity of the
analysis. Finally, in a block headed “certificate of reviewer,” the
… examiner who reviewed Caylor’s analysis certified that Caylor
was qualified to conduct the BAC test, and that the established
procedure for handling and analyzing Bullcoming’s sample had
been followed.
Id. (cleaned up).
The Bullcoming Court held that the at-issue reports were testimonial,
explaining:
In Melendez–Diaz, a state forensic laboratory, on police request,
analyzed seized evidence (plastic bags) and reported the
laboratory’s analysis to the police (the substance found in the bags
contained cocaine). The certificates of analysis prepared by the
analysts who tested the evidence in Melendez–Diaz, this Court
held, were incontrovertibly affirmations made for the purpose of
establishing or proving some fact in a criminal proceeding. The
same purpose was served by the certificate in question here.
The State maintains that the affirmations made by analyst Caylor
were not adversarial or inquisitorial; instead, they were simply
observations of an independent scientist made according to a non-
adversarial public duty. That argument fares no better here than
it did in Melendez–Diaz. A document created solely for an
evidentiary purpose, Melendez–Diaz clarified, made in aid of a
police investigation, ranks as testimonial.
***
In all material respects, the laboratory report in this case
resembles those in Melendez–Diaz. Here, as in Melendez–
- 19 -
J-A13032-25
Diaz, a law-enforcement officer provided seized evidence to a
state laboratory required by law to assist in police investigations.
Like the analysts in Melendez–Diaz, analyst Caylor tested the
evidence and prepared a certificate concerning the result of his
analysis. Like the Melendez–Diaz certificates, Caylor’s
certificate is formalized in a signed document, headed a report.
Noteworthy as well, the [laboratory] report form contains a legend
referring to municipal and magistrate courts’ rules that provide for
the admission of certified blood-alcohol analyses.
In sum, the formalities attending the report of blood alcohol
analysis are more than adequate to qualify Caylor’s assertions as
testimonial. The absence of notarization does not remove his
certification from Confrontation Clause governance. The New
Mexico Supreme Court, guided by Melendez–Diaz, correctly
recognized that Caylor’s report fell within the core class of
testimonial statements described in this Court’s leading
Confrontation Clause decisions: Melendez-Diaz, 557 U.S.[] at
310…; Davis, 547 U.S.[] at 830…; [and] Crawford, 541 U.S.[]
at 51-52….
Bullcoming, 564 U.S. at 663-65 (cleaned up).
After carefully considering the instant toxicology report under the
guidelines and analysis elucidated by Melendez-Diaz and Bullcoming, we
conclude that the report was not testimonial. Unlike the forensic reports in
those cases, the following facts convince us that the toxicology report in this
case was not created solely for an evidentiary purpose or made to aid a police
investigation.
The toxicology testing was done at a laboratory called MolecularDx, LLC.
The report states “Confidential” at the top, and lists the victim’s name, date
of birth, gender, and age. MolecularDx Report, 1/4/22, at 1 (Commonwealth’s
Exhibit 16). It states the “Ordering Agency/Client” as “Curtis Goldblatt” of
- 20 -
J-A13032-25
“ForensicsDx” with an address and contact telephone number.4 Id. It also
states a number assigned by Molecular Dx (“2021-0349”), an agency
identification number (“TO2021-0091”), the county (“Clearfield”), the date the
samples were received (“12/21/2021”), and the date the results were reported
(“1/4/2022”). It then lists, on the same page, the “Analytes” and/or “Drug
Names” of substances found in the victim’s system, along with the amount
(either numerical or the word “Positive”), unit (i.e., “ng/ml”), “ID-Matrix” (i.e.,
blood or vitreous fluid), and “Method” (i.e., “LC-MS/MS”) for each separate
analyte or drug. Id. Under a “Specimens Received” section, it lists the
identification numbers of two specimens, the “Matrix” for each as “Blood,” the
“Source” for each as “Cardiac,” the “Tube Type” for each as “Tube – Grey
Top,” and the “Date/Time Collected” for each as “12/21/2021 05:30.” Id.
The next two pages of the toxicology report give “Detailed Drug
Information” for each analyte/drug found in the victim’s system. Id. at 2-3.
For instance, for Fentanyl, the report states:
A short duration, high potency synthetic narcotic pain reliever,
used clinically as an adjunct to surgical anesthesia or to treat
severe or chronic pain. It is available in a variety of dosage forms,
____________________________________________
4 It is unclear whether Curtis Goldblatt ordered the toxicology report, or if he
was involved in conducting the analysis of the samples provided to
MolecularDx. During the hearing on Appellant’s motion to suppress the
toxicology report, the trial court asked, “So the Toxicology Report analysis
was done by Dr. Curtis Goldblatt[?]” to which the Commonwealth responded,
“Yes, Yor Honor. That is what it appears to state there [on the report].”
However, as just stated, the report indicates that Dr. Goldblatt was the
“Ordering Agency/Client,” and it lists a different individual as the “Analyst” at
the end of the report. See MolecularDx Report at 5. Appellant raises no issue
with this vagueness regarding Dr. Goldblatt’s role.
- 21 -
J-A13032-25
such as dermal patches, nasal spray, and sublingual lonzenges.
Dose varies widely depending on use, but typically ranges from
0.025-1.6 mg, with mode of administration dictating frequency of
dose. The half-life of fentanyl is 3-12 hours. Fentanyl is
metabolized to norfentanyl, the primary metabolite. It is believed
that the metabolite does not contribute to fentanyl’s toxicity. The
reported therapeutic, toxic, and lethal blood levels range from
0.3-1.2, 1.6-10, and 2.2-100, respectively.
Id. at 2.
The fourth page of the toxicology report indicates the “Tests Ordered,”
stating that the “Advanced Toxicology Package” was ordered in this case and
“covers [more than] 280 illicit and therapeutic drugs and can be used to aid
in determination of cause of death where there is suspicion of drug or
pharmaceutical toxicity or can be used for clinical purposes.” Id. at 4. It then
lists each of the analytes/drugs for which the victim’s blood and vitreous fluid
were tested. At the end of the report, it lists the name of the analyst (“Jared
McAtee”), and states “Reviews Authorized By: Erin Divito.” Finally, the report
sets forth the following disclaimer:
This report shall not be reproduced, except in full, without written
approval from the laboratory. Results provided only relate to the
items tested or sampled and are limited by the condition in which
they are received. *All laboratory activity was performed at the
listed location and **occurred between the listed dates.
Information provided by external agencies, additions to,
deviations, or exclusions to the method, or conditions of received
specimens that could affect the validity of data will appear as case
notes on the report.
Id. at 5. There do not appear to be any case notes in the report.
Based on the information set forth in the toxicology report, it does not
appear on its face to be testimonial. Aside from the report’s indicating that
- 22 -
J-A13032-25
Dr. Goldblatt is from “ForensicDx,” there is nothing suggesting to the analyst
who prepared the report that it was being requested as part of a criminal
investigation. For instance, there was nothing indicating the blood samples
were “seized evidence” as in Melandez-Diaz and Bullcoming, and there
were no procedural formalities attending the report to suggest that it was
produced to be used in litigation, such as its being notarized, signed, or
referencing chain of custody and/or rules for its admission in court. See also
Commonwealth v. Yohe, 79 A.3d 520, 554 (Pa. 2013) (concluding a
toxicology report identifying the BAC of Yohe’s blood was testimonial, as its
purpose was to address the issue of whether Yohe was DUI, it “was plainly
created for an ‘evidentiary purpose[,]’” and it was “made under circumstances
which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial”). Additionally, there were
no “certificate of analysis” stating any conclusions regarding the results of the
toxicology tests, and no effort was made to describe the testing procedures
or qualifications of the analyst.
Moreover, the circumstances surrounding the ordering of the toxicology
report also convince us that it was not drafted for the primary purpose of being
used in court. See Smith, 602 U.S. at 802. First, Dr. Kamerow testified that
the toxicology tests were ordered for the purpose of establishing the
victim’s cause of death; nothing in his testimony indicates that he ordered
the tests to discern whether a crime had occurred, or to serve as evidence in
a future trial. See N.T. Trial at 213 (Dr. Kamerow’s testifying that because
- 23 -
J-A13032-25
he was unable to determine the victim’s cause of death based on his external
and internal examination of her body, he ordered toxicology testing of “the
blood and vitreous” fluid to make this determination).
Second, Appellant does not argue – or cite any evidence to support –
that Dr. Kamerow or the toxicologist knew, or had any reason to believe, that
a criminal investigation was ongoing, or even anticipated, at the time the
toxicology report was ordered and prepared. In fact, as Appellant readily
points out, he “was not arrested until over a year after” the victim’s death,
and he was “not tried until nearly two years” later. Appellant’s Brief at 36.
This timeline indicates there was no investigation or thought of criminal
prosecution until well after the toxicology report was created in this case.
It would also not have been reasonable for Dr. Kamerow or the
toxicologist to presume a criminal investigation was, or would be, underway
and to prepare the report for the primary purpose of a trial. When a person
dies from overdosing an illegal narcotic, it is not always indicative of a
prosecutable act by another person, as the deceased individual could have
manufactured and ingested the illegal narcotics wholly on their own. The only
criminal conduct in such a scenario would be by the victim themselves; thus,
a toxicology report to discern how the victim died would not be made for the
purpose of court. These circumstances distinguish the toxicology report in the
instant case from the forensic tests and reports at issue in Melendez-Diaz
and Bullcoming, which clearly were done for the purpose of establishing
criminality. In those cases, there would be no other reason to conduct tests
- 24 -
J-A13032-25
of substances suspected to be narcotics, or the blood of a living person to
discern its alcohol content, except for purposes of investigating a crime and/or
to use in a future criminal trial. Thus, the analysts who prepared the reports
in those cases knew, or should have known, that their primary purpose was
for use in a future trial.
The same is not true of the toxicology report in the instant case. The
record before us demonstrates that the toxicology report was created for the
primary purpose of establishing the victim’s cause of death; it was not made
to prove some fact in a criminal proceeding, to serve an evidentiary purpose,
or to aid in a police investigation. Additionally, the report was not drafted
under circumstances that would lead an objective witness to reasonably
conclude that it would be used later at trial. Consequently, the toxicology
report in this case is distinguishable from the forensic documents at issue in
Melendez-Diaz and Bullcoming, and we conclude that it was not
testimonial.5 As such, the trial court’s admission of Dr. Kamerow’s testimony
____________________________________________
5 Appellant’s assertions in a post-argument submission that was accepted by
this Court do not change our conclusion. Therein, Appellant contends that the
toxicology tests were ordered based on Dr. Kamerow’s clinical history, which
stated: “The male reports that the line disappeared and he found the [victim]
unresponsive.” N.T. Trial at 220. Based on this statement in Dr. Kamerow’s
clinical history, Appellant insists that “the primary purpose for the blood draw
and autopsy was to determine whether there was in fact criminality because
of the statements made by [Appellant] about a ‘line’ of [F]entanyl/heroin
being placed on a cigar box by [Appellant], which had disappeared[,] and
whether that line was the cause and manner of death.” Post-Argument
Submission, 6/11/25, at unnumbered 2 ¶ 7. We disagree. First, the at-issue
statement by Appellant does not even indicate that he gave the victim the
(Footnote Continued Next Page)
- 25 -
J-A13032-25
about the report, without the toxicologist being present for Appellant to cross-
examine, did not violate Appellant’s constitutional rights.
Third Issue
In Appellant’s third issue, he contends that the court erred by not
instructing the jury “that the toxicology report could not be received as
substantive evidence.” Appellant’s Brief at 29-30. Appellant relies on the
following language from the comment of Rule 703 to support his position:
When an expert testifies about the underlying facts and data that
support the expert’s opinion and the evidence would be otherwise
inadmissible, the trial judge upon request must, or on the judge’s
own initiative may, instruct the jury to consider the facts and data
only to explain the basis for the expert’s opinion, and not as
substantive evidence.
____________________________________________
line of drugs that ‘disappeared’ before he found the victim ‘unresponsive,’ so
as to support his current suggestion that he was a suspect in a criminal
investigation at the time the autopsy and toxicology tests were ordered.
Second, the fact that Dr. Kamerow knew, based on statements by Appellant
at the scene of the victim’s death, that she had likely ingested drugs does not
mean that the doctor ordered the toxicology tests for the primary purpose of
aiding in a criminal investigation, or to produce evidence to be used at trial.
Notably, the doctor explained that Appellant’s statement that the line of drugs
disappeared before he found the victim unconscious, combined with the
doctor’s physical examination of the victim’s body, “suggest[ed] that the
[victim] experienced a rapid reaction … to … narcotics[,] and … she
[succumbed] to the narcotics without the time left to develop pulmonary
congestion, pulmonary edema, [or] froth in the tracheal and bronchial tree.”
N.T. Trial at 220 (emphasis added). Despite these factors indicating the victim
died of a drug overdose, Dr. Kamerow could not definitively determine the
victim’s cause and/or manner of death based only on his physical examination
of her body and information he had about the incident. See id. at 213.
Consequently, the doctor ordered the toxicology report for the primary
purpose of establishing the victim’s cause and manner of death, not to create
evidence that would be later used at trial.
- 26 -
J-A13032-25
Pa.R.E. 703 Cmnt. According to Appellant, he requested this instruction, but
the trial court erroneously denied his request. Appellant insists that this error
further “compounded” the court’s ostensible error of permitting Dr. Kamerow
“to opine as to [the victim’s] cause of death” without Appellant’s being able to
cross-examine the toxicologist. Appellant’s Brief at 29.
In response, the Commonwealth first contends that Appellant has
waived this issue, as “he did not object to the trial court[’s] omitting that
instruction.” Commonwealth’s Brief at 12. According to the Commonwealth,
“[n]o objections were raised during the discussion between the trial court and
counsel and[,] likewise, none were raised following the close of the jury
instructions.” Id. Thus, the Commonwealth concludes that Appellant’s
challenge to the court’s refusal to provide the at-issue jury instruction was
waived. Id. (citing Commonwealth v. Janda, 14 A.3d 147, 163 (Pa. Super.
2011) (holding that Janda waived his challenge to the omission of a jury
instruction where he requested the instruction, “but did not lodge an objection
after the trial court omitted [it] from the charge”)); see also Pa.R.Crim.P.
647(B) (stating that “[n]o portions of the charge nor omissions from the
charge may be assigned as error, unless specific objections are made thereto
before the jury retires to deliberate”).
In Appellant’s reply brief, he insists that his jury-instruction issue is not
waived, based on the following discussion after the court’s charge to the jury:
THE COURT: Okay. Turning to counsel, [the Commonwealth,] is
there anything else that you think I should charge?
- 27 -
J-A13032-25
[The Commonwealth]: No, Your Honor. Nothing from the
Commonwealth.
THE COURT: [Defense counsel]?
[Defense counsel]: No, Your Honor.
THE COURT: Okay. And I understand, for purposes of the
defense, anything that there has been previously … an issue [with]
or objection to stands. It is already a part of the record. Okay.
So [Commonwealth,] at least up to this point, any exceptions?
[The Commonwealth]: No exceptions, Your Honor.
THE COURT: [Defense counsel,] again, subject to anything that is
previously of record?
[Defense counsel]: No. No further exceptions.
N.T. Trial at 340-41.
According to Appellant, the comments by the court make clear that
it was [the trial court’s] practice to incorporate previous
objections that were made on the record to remain after the
[c]ourt concluded its jury charge. Therefore, given this practice,
there were objections made at the end of the court’s charge which
the lower court incorporated into the record to preserve the
objection. The spirit of [Rule] 647(B) was followed. Therefore,
the Commonwealth’s argument regarding waiver should be
rejected.
Appellant’s Reply Brief at 8 (emphasis added).
Notably, Appellant does not point to where in the record he made any
objection to the court’s decision not to provide the at-issue jury charge. In
his brief, he cites to where the trial court and counsel discussed his request
to give a jury instruction, in line with the comment to Rule 703, that the jury
could not consider the toxicology report as substantive evidence. See
Appellant’s Brief at 29 (citing N.T. Trial at 191-93; 263-71). However, when
the court decided not to provide the requested instruction, reasoning that it
- 28 -
J-A13032-25
was extremely confusing and might cause the jury to believe that it had to
disregard Dr. Kamerow’s testimony as a whole, Appellant did not lodge any
specific objection to the court’s decision. See N.T. Trial at 268 (stating that
if the court read Appellant’s proposed charge, it would essentially be “telling
the jury to disregard Dr. Kamerow’s opinion that the amount of Fetanyl [sic]
in the victim’s blood stream was the cause of death”); id. at 271 (the court’s
ruling that it was “going to deny [Appellant’s] request” to give the charge, and
defense counsel’s responding, “Thank you, Your Honor”). Thus, even if
Appellant is correct that the court’s statements after instructing the jury
incorporated any “previous objections,” Appellant’s Reply Brief at 8
(emphasis added), there is nothing in the portions of the record he cites
demonstrating that he actually lodged an objection to the court’s decision not
to give his proposed instruction. Accordingly, we agree with the
Commonwealth that this issue has been waived.
Notwithstanding the finding of waiver, we would also agree with the
Commonwealth that the trial court did not abuse its discretion by refusing to
provide Appellant’s requested jury charge and, even if that decision was
improper, it was harmless error. First, we recognize that,
[w]hen reviewing a challenge to jury instructions, the reviewing
court must consider the charge as a whole to determine if the
charge was inadequate, erroneous, or prejudicial. The trial court
has broad discretion in phrasing its instructions, and may choose
its own wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. A new trial
is required on account of an erroneous jury instruction only if the
instruction under review contained fundamental error, misled, or
confused the jury.
- 29 -
J-A13032-25
Commonwealth v. McRae, 5 A.3d 425, 430–31 (Pa. Super. 2010) (citation
omitted).
Here, Appellant requested the following jury charge:
An expert may base his opinion on facts or data in the case that
the expert has been made aware of or personally observed. If
experts in a particular field would reasonably rely on those kinds
of facts or data in forming an opinion on the subject, they need
not be admissible for the opinion to be admitted; however, the
facts and the data that the expert relies on can be considered only
to explain the basis for the expert’s opinion and not as substantive
evidence.
In this case, Dr. Harry Kamerow testified as an expert for the
Commonwealth. Dr. Kamerow’s report contained a Toxicology
Report which is inadmissible in this case. As to Dr. Kamerow’s
testimony regarding toxicology results contained in said
Toxicology Report and Autopsy Report, you may not consider the
testimony as to toxicology results or opinions as substantive
evidence in this case. You may not consider toxicology results as
evidence in this case tending to prove or disprove any element of
the offenses charged but only consider them as the basis for the
expert’s testimony.
N.T. Trial at 267-68.
The trial court found the proposed instruction to be “incredibly
confusing.” Id. at 271. Notably, when the court expressed its concern that
the jury could interpret the charge as meaning it should “disregard Dr.
Kamerow’s opinion that the amount of Fentanyl in the victim’s blood stream
was the cause of death[,]” Appellant’s counsel answered, “Correct.” Id. at
268. In other words, Appellant’s counsel acknowledged that the proposed
instruction could confuse the jury and cause them not to consider Dr.
Kamerow’s admissible opinion testimony that the victim died from a Fentanyl
- 30 -
J-A13032-25
overdose. Given this record, we would discern no abuse of discretion in the
court’s decision not to provide Appellant’s requested jury instruction.
Moreover, we would also conclude that any error in declining to provide
that instruction was harmless. This Court has stated:
If we conclude that a charge is erroneous, we will grant a new trial
unless the error is deemed harmless. An error is deemed
harmless only if the appellate court is convinced beyond a
reasonable doubt that the error is harmless. Moreover, a jury
instruction will be upheld if it adequately and accurately reflects
the law and is sufficient to guide the jury through its deliberations.
Commonwealth v. Dietterick, 631 A.2d 1347, 1352 (Pa. Super. 1993)
(citations omitted).
Here, the Commonwealth maintains that the omission of the instruction
that the jury could not consider the toxicology report as substantive evidence
was harmless because “the instruction likely would not have been a tipping
point for the jurors.” Commonwealth’s Brief at 14. Given our decision, supra,
that Dr. Kamerow’s testimony about the toxicology report was properly
admitted, we agree. Dr. Kamerow explained that, based on the amount of
Fentanyl in the victim’s blood, as set forth in the toxicology report, the victim’s
cause of death was an accidental Fentanyl overdose. The jury was permitted
to consider, as substantive evidence, the doctor’s expert opinion as to the
victim’s cause of death. Thus, even if the jury was instructed that they could
not consider, as substantive evidence, the toxicology report itself — and they
understood and properly applied that jury charge — it would not have changed
the outcome of Appellant’s trial in light of Dr. Kamerow’s expert testimony
- 31 -
J-A13032-25
regarding the victim’s cause of death. Thus, Appellant’s third issue does not
warrant relief.
Fourth Issue
Finally, in Appellant’s fourth issue, he challenges the discretionary
aspects of his sentence. Specifically, Appellant argues that the court
considered an improper sentencing factor, believing incorrectly that
Appellant’s DDRD offense required a five-year mandatory sentence. He also
claims that the court failed to state any reasons on the record for imposing
his sentence, and that it did not adequately take into account various
mitigating factors raised by Appellant.
We begin by noting that,
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006)…. Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed. Commonwealth
v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)….
- 32 -
J-A13032-25
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal. However, we agree with
the Commonwealth that Appellant failed to raise his sentencing claims in a
post-sentence motion. Appellant filed a post-sentence motion on February
22, 2024, raising various claims, but making no mention of any challenge to
his sentence. The Commonwealth also filed a post-sentence motion, asking
the court to reconsider sentencing Appellant to the term of 20 to 40 years’
incarceration the Commonwealth had requested. On April 8, 2024, the court
conducted a brief hearing on the parties’ post-sentence motions, simply
directing the parties to file briefs explaining their post-sentence issues. On
May 17, 2024, Appellant filed a motion for an extension of time to file his brief.
The court granted that motion on May 22, 2024. Yet, there is no indication
on the docket that Appellant filed any post-sentence brief.6 On July 10, 2024,
____________________________________________
6 Although in Appellant’s reply brief, he claims that his sentencing “issues were
raised in the Memorandum in Support of the Post[-]sentence Motion[,]” there
is no docket entry for any such memorandum, and Appellant does not point
to where in the record that document can be found. See Pa.R.A.P. 2119(c)
(“If reference is made to … any … matter appearing in the record, the
argument must set forth … a reference to the place in the record where the
matter referred to appears.”).
- 33 -
J-A13032-25
the court issued an order dismissing Appellant’s post-sentence motion, and
denying the Commonwealth’s post-sentence motion. In the trial court’s Rule
1925(a) opinion, it states that Appellant’s claims that his sentence is
excessive, and that the court “relied upon impermissible factors,” were “not
raised in the Post[-]Sentence Motions.” TCO at 9.
Based on this record, we agree with the trial court and the
Commonwealth that Appellant failed to preserve his sentencing claims in his
post-sentence motion. See Pa.R.A.P. 302(a) (“Issues not raised in the trial
court are waived and cannot be raised for the first time on appeal.”); Griffin,
65 A.3d at 936 (“[I]ssues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”) (citation
omitted). Thus, no relief is due on Appellant’s fourth and final issue.
Judgment of sentence affirmed.
DATE: 07/10/2025
- 34 -
Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- July 10, 2025
- Status
- Precedential