J-A13037-23
2023 PA Super 149
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY DALE MABUS :
:
Appellant : No. 1672 MDA 2021
Appeal from the Judgment of Sentence Entered November 19, 2021
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000790-2019
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: AUGUST 7, 2023
Appellant, Randy Dale Mabus, appeals from the judgment of sentence
entered in the Court of Common Pleas of Northumberland County following
his conviction on one count of driving while under the influence of alcohol
(“DUI”)-general impairment, one count of DUI-high rate, and one count of
registration and certificate of title required.1 After a careful review, we affirm.
The relevant facts and procedural history are as follows: On February
28, 2019, Appellant was arrested and charged with several DUI offenses in
connection with a traffic stop. On July 29, 2019, Appellant filed a counseled
pre-trial motion in limine to exclude the results of a breath test conducted by
Pennsylvania State Corporal Joshua Herman on February 28, 2019.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(a)(1), 3802(b), and 1301(a), respectively.
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Specifically, Appellant averred a breath test is a scientific test, and, thus, the
results thereof must conform to general scientific principles. He further
relevantly averred (verbatim):
6. Generally accepted science requires a test result to be reported
with a corresponding uncertainty and confidence interval in order
to assess the accuracy of the test.
7. A test result without a corresponding uncertainty and
confidence interval is an invalid test result.
8. The study of uncertainty is called metrology.
9. There are national and international standards as to the
reporting of uncertainty and the computation of uncertainty.
10. There are national and international standards for traceability
of the inputs into testing to ensure the accuracy.
11. The test results in this case to [sic] not have any uncertainty
or confidence intervals reported thus scientifically they are
unreliable.
12. Lack of reporting uncertainty, confidence intervals, and the
ability to document traceability do not conform with generally
accepted scientific principles thus our Frye[2] standard for the
admissibility of scientific evidence have been violated thus the test
results are inadmissible.
Appellant’s Motion In Limine, filed 7/29/19, at 1-2 (footnote added).
On June 17, 2020, Appellant proceeded to an evidentiary hearing
regarding the motion in limine. At the hearing, the defense presented the
testimony of Heather L. Harris, MFS, JD, who testified as an expert in the field
of forensic and analytical chemistry. The Commonwealth presented no
witnesses.
____________________________________________
2 Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).
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Ms. Harris testified “the science of measurement is known as
metrology[,]” and “analytical chemistry utilizes metrology in almost every
aspect[.]” N.T., 6/17/20, motion hearing, at 18. She explained “metrology
is inherently dependent upon comparisons. You cannot make a measurement
without using [a] tool. But you have to compare your unknown to that tool.”
Id. at 20. She testified that “part of comparison is the utilization of reliable
and validated tools, but then also having reference materials that act as the
comparators, that in the current situation would need to be traceable[.]” Id.
Ms. Harris explained “[i]t’s a series of records that prove the reference
material you’re using is scientifically valid in its amount and can be traced
back to ultimately would be an international scientific reference standard[.]”
Id. at 20-21.
Ms. Harris testified there is an organization called the National Institute
of Standards and Technology (“NIST”), which is part of the federal Department
of Commerce. Id. at 21. She indicated the NIST is the ultimate reference
source, so measurements all need to be traceable back to the NIST to be valid.
Id. at 22. Ms. Harris testified the “true value” of something is “always an
unknown,” so, by measuring, a scientist is “trying to as best as possible
estimate the true value.” Id. She explained the quality and reliability of any
measurement is going to be dependent upon the tool. Id. Thus, as an
example, she testified there is a “true value [for] a length of [a] shoelace, and
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we don’t really know what that is. We just try to estimate it as best as we
can with our measurement tools.” Id.
Ms. Harris testified “uncertainty is an inherent part of the estimation
process.” Id. at 23. Thus, since we do not know the true value of items, we
measure to get an estimate of the true value. Id. Accordingly, she explained:
I can measure the same thing four times in a row and get different
measurements. It doesn’t mean that one of those measurements
is the correct one and the other three are wrong. It simply means
that I have four different estimates. And depending on the quality
of my measurement tool, the uncertainty can be large, or the
uncertainty can be small. And the uncertainty is the way we
express the quality and reliability of that measurement tool.
Id.
Ms. Harris testified that, consequently, if knowing the measurement of
something is critical, a scientist will use a precise measurement device that
will have a lower uncertainty.3 Id. She clarified that, even with a precise
measurement device there is no guarantee any measurement will be “the true
value, [but] it simply means that measurements are less disperse” in trying
to estimate the true value. Id. She testified “every device will have its own
uncertainty of measurement, [s]o it’s important that each measuring device
goes through the process of being evaluated for uncertainty.” Id. at 24.
____________________________________________
3 With regard to her shoelace example, Ms. Harris testified that in estimating
the true value of the shoelace it is better to use a “precise linear measurement
device” rather than a “79 cent ruler” from a department store. Id. at 23.
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She noted “[u]ncertainty is somewhat dependent on what it is [a
person] is trying to measure.” Id. Thus, for example, she opined a shoelace
won’t change much over the course of an hour; however, “a gas could change
quite a bit over the course of an hour. So, there is uncertainty that derives
from your sample.” Id. She also noted there is uncertainty that arises from
the measuring tool as well as uncertainty regarding how one applies that tool
to the sample. Id. She opined that, in sum, “uncertainty arises from really
all the human inputs into the measurement process[.]” Id.
Ms. Harris testified that when an item is being measured it is referred
to as “measure and.” Id. at 25. For example, she explained that if a person
blows into a machine to see what his alcohol content is, the “measure and” is
“a breath alcohol.” Id. She noted there are formulas used by scientists to
determine the uncertainty of different measurement devices, and there is an
ultimate guide called the Guide to the Expression of Uncertainty in
Management a/k/a the “GUM Guide.”4 Id. Ms. Harris testified the GUM Guide
is an “international standard for how to evaluate a measuring process and
then to apply these mathematical formulas, so you can calculate at the end of
it all a single numerical value for certainty.” Id.
____________________________________________
4 Ms. Harris testified the first GUM Guide was published in 1993. Id. at 51.
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Ms. Harris testified that a confidence interval is an expression of how
likely a measurement estimate is to capture the true value of an item. Id. at
26. She explained:
So going back to this idea that no one knows what the true
value is, we are measuring it to estimate it. We have to put some
sort of confidence interval on that, because there is—it is
impossible for us to say we are one hundred percent accurate in
this measurement, we don’t know what the true value is, we will
never know if we got it correct or not. So, when we establish a
confidence interval, we are basically making a choice as to how
frequently we are willing to accept an answer that is not capturing
true value.
So, if someone says, you know, a particular result with a 95
percent confidence interval, what they’re saying is that five times
out of one hundred our measurement estimate is not capturing
the true value.
…
So, the confidence interval gives you some likelihood as to—
well as how likely it is that your estimate plus or minus uncertainty
contains the true value.
Id. 26-27. Ms. Harris testified the confidence interval expresses the likelihood
you captured the true value. Id. at 31. She noted “you can never have a
confidence interval of one hundred because we’ll never know if we ever
captured the true value.” Id. at 32.
Ms. Harris testified the formulas in the GUM Guide regarding how to
determine uncertainty and to get confidence intervals are accepted in the
scientific community. Id. at 26. She explained the GUM Guide provides
determinations of how to “get to the end result, which is that plus or minus
value with the confidence interval.” Id. at 27.
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Ms. Harris testified about the theories underlying and provided for in the
GUM Guide. Specifically, she indicated the GUM Guide provides that “when
reporting the result of a measurement of physical quantity, it is obligatory that
some quantitative indication of the quality of the result be given so that those
who use it can assess its reliability…[T]his is for evaluating and expressing its
uncertainty.” Id. at 35. She further explained the GUM Guide provides “[t]he
concept of uncertainty as a quantifiable attribute is relatively new in the
history of measurement, although error and error analysis have long been a
part of the practice of measurement science for metrology.” Id. However,
she explained the GUM Guide provides that “[i]t is now widely recognized that
when all of the known or suspected components of error have been evaluated
and the appropriate corrections have been applied, there still remains an
uncertainty about the correctness of the stated result…from the measurement
[process].” Id. at 36. She concluded that the GUM Guide indicates:
[I]n many industrial and commercial applications, as well as in the
areas of health and safety, it is often necessary to provide an
interval about the measurement result that may be expected to
encompass a large fraction of the distribution of values that could
reasonably be attributed to the quantity subject to measurement.
Id.
Ms. Harris next testified the “ISO is the International Organization for
Standardization.” Id. at 37. She indicated the ISO, which is French, provides
standards for forensic science and forensic laboratories, including ISO 17025,
which provides “standards for laboratories to follow to ensure that they are
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engaging in reliable testing, and producing valid and reliable results.” Id.
She noted the ISO “is not a standard.” Id. at 41. However, reading from the
ISO, she indicated the following:
Testing laboratories[5] shall have and shall apply procedures
for estimating the uncertainty of measurement. In certain cases,
the nature of the test method may preclude rigorous
metrologically and statistically valid calculation of uncertainty of
measurement. In these cases, the laboratory shall at least
attempt to identify all the components of uncertainty, and make
a reasonable estimation, and shall ensure that the form of
reporting of the result does not give a wrong impression of the
uncertainty. Reasonable estimation shall be based on knowledge
of the performance of the method and on the measurement scope
and shall make use of, for example, previous experience and
validation data.
…
In addition to the requirements listed [above], test reports
shall, where necessary for the interpretation of the test results,
include the following: A. Deviations from, additions to, or
exclusion from the test method and information on specific test
conditions such as environmental conditions.
…
Where applicable a statement on the estimated uncertainty
of measurement: information on uncertainty is needed in test
reports when it is relevant to the validity or application of the test
results, when a customer’s instruction so requires, or when the
uncertainty affects compliance to a specification limit.
Id. at 38-39, 41-42 (footnote added).6
____________________________________________
5 There is no dispute Appellant’s instant breath alcohol test was not performed
in a laboratory; but rather, it was a test given at the police barracks.
6 Defense counsel argued the values provided by laboratories used by the
Pennsylvania State Police don’t take into account the levels of uncertainty of
measurement and the resulting confidence levels, and thus, he averred they
violate national/international standards of measurement. Id.
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Ms. Harris testified the ISO indicates “you cannot apply the
measurement to the legal specification without knowing the reliability of the
measurement[,]” and she opined this concept is applicable to DUI breath
testing. Id. at 42.
Ms. Harris testified about a 2005 NAS report, which was promulgated
by the United States Congress. Id. at 44-45. She noted the NAS report
provides:
As a general matter, laboratory reports generated as the
result of a scientific analysis should be complete and through.
They should contain, at a minimum, methods and materials,
procedures, results, conclusions, and as appropriate, sources and
magnitudes of uncertainty in the procedures and conclusions, for
example levels of confidence.
…
Many clinical and testing disciplines outside the forensic
science disciplines have standards, templates, and protocols for
data reporting. A good example is ISO/IEC 17025 standards. ISO
17025 is an international standard published by the International
Organization for Standardization.
…
In other words, although appropriate standards exist, they
are not always followed. Forensic reports, and any courtroom
testimony stemming from them, just include clear characteristics
of the limitations of the analyses, including measures of
uncertainty in reported results and associated estimated
probabilities where possible.
Id. at 46-47.
She opined that breath testing is the scientific analysis of the quantity
of alcohol in one’s breath, and, thus, if one is going to report a test result in
court for a breath sample, one must report the uncertainty. Id. at 47. She
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noted the NAS indicates that all laboratory analysis is subject to error, so a
sample must be analyzed within a confidence interval of possible values. Id.
However, she admitted that not all measurements are done in a laboratory.
Id. For example, a breath test is usually done in the police barracks; however,
she opined the breath test is a scientific test, and the results are a forensic
test result, so breath tests should be subject to the same testing requirements
as those done in a laboratory. Id. at 50.
Ms. Harris noted there are many variables that affect the input in alcohol
breath testing. For example, there are human biological components and
instrument variables. Id. at 59. She concluded there are errors built into the
scientific process of breath testing. Id. at 60. She noted the ASCLD/LAB7 is
the organization that accredits laboratories and ensures the ISO 17025
requirements, which measure uncertainty, are met. Id. She admitted the
“ASCLD/LAB does not prescribe a specific method or formula to assessing
measurement certainty.” Id. at 61. However, the ASCLD/LAB “expects
uncertainty estimations to conform to the principles set forth in the GUM Guide
and in applicable GUM supplements.” Id.
Accordingly, Ms. Harris opined there are different methods to determine
uncertainty in testing; however, one should follow the GUM Guide. Id. She
____________________________________________
7ASCLD/LAB is short for the “American Society of Crime Laboratory
Directors/Laboratory Accreditation Board.” Id. at 60.
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indicated breath testing is an analytical test since it involves measuring gas
that is exhaled from human beings. Id. at 62. She indicated that with this
type of testing there are two types of error: systemic error and random error.
Id. She testified systemic error involves bias such as where a measurement
tends to veer one way or another. Id. at 63. Random error is what the
uncertainty of measurement value is reflecting, and one can never eliminate
random error. Id. Accordingly, she opined systemic error needs to be
identified and corrected in the method of measurement while random error is
dealt with through the concept of uncertainty of measurement. Id. She
opined that “the absence of uncertainty and confidence means” the quality of
the measurement is in doubt without any indication of reliability. Id. at 64.
Accordingly, she opined that when a breath alcohol test is conducted the result
generated by the machine is not reliable absent taking into account the
uncertainty in confidence intervals. Id. at 68, 73.
Ms. Harris noted that, in a particular unrelated case, a Pennsylvania
State Police report indicated the suspect had a blood alcohol content of
0.171%, plus or minus 0.021 as the uncertainty, with a confidence interval of
99.73.8 However, in that same case, the suspect’s breath alcohol content was
0.172%. Id. at 70-71. The breath test was performed by the Mansfield
____________________________________________
8 Ms. Harris noted the blood alcohol test was performed by the Pennsylvania
State Police Crime Lab in Greensburg, PA, which is an accredited ASCLD/LAB,
which follows the GUM Guide and ISO. Id. at 71.
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University Police Department, and there was no report of uncertainty values.
Id. at 72. Accordingly, Ms. Harris opined the breath alcohol content of
0.172% actually tells “us nothing about that test result other than [it gives] a
number.” Id. at 74.
On cross-examination, Ms. Harris acknowledged that neither the
International Organization of Legal Metrology nor the NAS report from
Congress are the law. Id. at 75. Further, Ms. Harris acknowledged that, in
Pennsylvania, there is a bulletin that is released with respect to approved
alcohol breath testing, and the Intoxilyzer 9000 is an approved device. Id.
She also acknowledged there are regulations promulgated by the
Commonwealth of Pennsylvania that provide procedural information with
respect to how breath tests are to be performed. Id. at 76. She admitted
these were “step by step procedures,” which give a “framework” for
conducting the testing. Id.
Ms. Harris admitted the Pennsylvania Department of Transportation
(“PennDOT”) has promulgated regulations for breath testing with respect to
the Vehicle Code in 67 Pa.C.S.A. § 77.24. Id. at 76-77. In fact, the
regulations “give a step-by-step procedure of how the breath tests are
supposed to be administered.” Id. at 77. She acknowledged there are
accuracy and calibration tests set forth in the PennDOT regulations that must
be performed every 30 days and two tests must be within a certain range.
Id.
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When the Commonwealth asked Ms. Harris if she was familiar with
Pennsylvania case law holding that breath analyzer test machines are
scientifically reliable, Ms. Harris indicated in the negative. The Commonwealth
asked Ms. Harris if the uncertainty in calculating the “true value,” in her
opinion, is partially related to the operation of the machine. Id. at 81. Ms.
Harris responded in the affirmative and admitted that the Pennsylvania State
Police trains operators of the breath machines. Id. She also admitted there
are police officers who maintain the machines, and they have monthly and
yearly protocols. Id. She admitted there are regulations pertaining to taking
a breathalyzer instrument out of service if “results start to vary too much[.]”
Id. at 82. Ms. Harris admitted she is unaware of any cases in Pennsylvania
where a court “ruled on with respect to the uncertainty levels in breath alcohol
tests[.]” Id. at 83.
On redirect-examination, Ms. Harris testified the fact the GUM Guide,
NAS, and ISO 17025 are not codified in law does not change her opinion that
it is necessary to have a report for breath alcohol testing with uncertainty and
confidence intervals. Id. at 86. She testified from a scientific perspective
“the law is somewhat irrelevant.” Id.
At the conclusion of the hearing on the motion in limine, defense counsel
stipulated that Corporal Herman tested Appellant’s breath on the Intoxilyzer
9000 and reported it as “0.141 percentage BAC.” Id. at 87-89. However, he
noted this was without accompanying uncertainty or competency intervals.
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Id. at 88. He also stipulated that Corporal Herman completed the DataMaster
DMT operator course, as well as the maintenance course, conducted by the
Pennsylvania State Police, as well as the operator and maintenance training
specifically on the Intoxilyzer 9000. Id. at 88-89.
By opinion and order entered on July 27, 2020, the trial court denied
Appellant’s motion in limine. On July 14, 2021, Appellant proceeded to a non-
jury bench trial at which Corporal Herman, a twelve-year veteran with the
Pennsylvania State Police, testified he stopped Appellant’s vehicle for a
registration violation on February 28, 2019. N.T., 7/14/21, trial, at 5. When
he approached Appellant, who was sitting in the driver’s seat of the vehicle,
he “noticed a…moderate odor of alcohol coming from his breath…[H]is eyes
were bloodshot and glassy and dilated.” Id. at 6. Appellant admitted he had
just left a bar, and he had consumed two beers. Id. at 7.
Corporal Herman testified he administered field sobriety tests upon
Appellant, who was unable to successfully complete the tests. Id. at 9-11.
Accordingly, Appellant was arrested and transported to the police barracks.
Id. at 11. “Upon arrival back at the barracks, the 20-minute observation
period began at 2118 hours.” Id. at 11-12. Corporal Herman explained the
20-minute observation period is given to ensure “the defendant doesn’t vomit,
belch, eat, take in any type of fluids. That way, when samples are
given,…there is nothing in there that could basically interfere with what the
sample is about to be.” Id. at 13.
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Corporal Herman testified Appellant successfully completed the 20-
minute observation period, and thus, “his implied consent and O’Connell
warnings were given [to him] at 2126 hours.” Id. Corporal Herman then
conducted a breath test on Appellant with the Intoxilyzer 9000.9 Id. at 13-
14. The Intoxilyzer 9000 revealed Appellant’s breath alcohol content was
0.141%. Id. at 13.
At the conclusion of the bench trial, the court convicted Appellant of the
offenses indicated supra, and on November 19, 2021, the trial court sentenced
Appellant to an aggregate of six months’ probation with the first thirty days
consisting of in-home confinement with electronic monitoring. This timely
counseled appeal followed, and all Pa.R.A.P. 1925 requirements have been
met.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Presented” (verbatim):
1. The Trial Court erred in admitting the breath test results at trial
because the breath test results failed to include uncertainty
values and a corresponding confidence interval. When a
measurement of a critical value lacks the reporting of its
uncertainty and confidence interval, the test results do not
comply with national and international standards of reporting
of measurements. Therefore, the breath test results in this
case do not conform with generally accepted scientific
principles of measurement and are thus inadmissible.
____________________________________________
9 The Commonwealth requested, and the trial court agreed, to take “[judicial]
notice that the Intoxilyzer 9000 is an approved testing device in the
Pennsylvania Bulletin at the time of the incident. That would be Volume 48,
Issue 20, with an issue date of 5/19/18.” Id. at 14.
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2. The admission of the breath test results that did not conform
with general scientific principles of the reporting of
measurement in this case prejudiced the Defendant in relation
to the charge of general impairment.
Appellant’s Brief at 2.
On appeal, Appellant contends the trial court erred in failing to exclude
Appellant’s breath alcohol test result of 0.141%., which was measured by the
Intoxilyer 9000 on February 28, 2019. Appellant acknowledges the Intoxilyer
9000 is a measuring device, which is approved by the Pennsylvania
Department of Health, and the PennDOT regulations do not require the
reporting of uncertainty and confidence intervals with breath alcohol testing.
However, he reasons that, under generally accepted scientific principles, the
measurement of alcohol in Appellant’s breath from the Intoxilyer 9000 is a
“mere guess” since the result is not put into context with scientifically required
uncertainty and confidence intervals. Id. at 16. Appellant argues “[t]here is
no precedent that says just because the Commonwealth uses an approved
testing machine and that the regulations don’t require uncertainty and
confidence intervals, that means they are not required.” Id. at 30.
In this regard, Appellant argues his expert, Ms. Harris, offered
unrebutted testimony indicating breath alcohol testing is a forensic scientific
test that measures the amount of alcohol in one’s breath, and as such, it is
subject to the generally accepted scientific principles of measurement, which
requires that a result from a scientific test include the reporting of uncertainty
values and corresponding confidence intervals. Since the test result in the
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instant case was “a single number without the corresponding uncertainty and
confidence intervals,” Appellant contends the Frye standard for the
admissibility of scientific evidence has been violated. He suggests Pa.R.E. 403
provides the instant breath test result should be excluded since “the reported
result is misleading and prejudicial[.]” Appellant’s Brief at 17. Thus, he
contends the trial court erred in denying his motion in limine to exclude the
breath alcohol test result of 0.141%.
Initially, we note the following well-established legal precepts:
When reviewing the denial of a motion in limine, we apply
an evidentiary abuse of discretion standard of review. See
Commonwealth v. Zugay, 745 A.2d 639 (Pa.Super. 2000)
(explaining that because a motion in limine is a procedure for
obtaining a ruling on the admissibility of evidence prior to trial,
which is similar to a ruling on a motion to suppress evidence, our
standard of review of a motion in limine is the same as that of a
motion to suppress). The admission of evidence is committed to
the sound discretion of the trial court and our review is for an
abuse of discretion.
The admissibility of evidence is a matter directed to the
sound discretion of the trial court, and an appellate court may
reverse only upon a showing that the trial court abused that
discretion. Commonwealth v. Wallace, 522 Pa. 297,
561 A.2d
719 (1989).
Commonwealth v. Stokes,
78 A.3d 644, 654 (Pa.Super. 2013).
Pennsylvania Rule of Evidence 403, to which Appellant cites, provides
the following:
Rule 403. Excluding Relevant Evidence for Prejudice,
Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair
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prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.
Pa.R.E. 403 (bold in original).
In the case sub judice, Appellant does not dispute his breath alcohol test
result is “relevant evidence” in determining whether he was DUI; however, he
contends the probative value of the breath alcohol test result of 0.141%,
without scientifically required uncertainty and confidence intervals, is
outweighed by the danger of unfair prejudice and misleading the fact-finder.
This argument is intertwined with his assertion that the breath alcohol
test result does not meet the requirements for the admissibility of scientific
evidence as set forth in Frye and its progeny. As indicated, Appellant
contends the general acceptance in the relevant scientific community is that,
for determining scientific measurements (including breath alcohol results),
uncertainty and confidence intervals must be included, and since such were
not included in this case, the breath alcohol test result of 0.141% from the
Intoxilyer 9000 does not meet the requirements of Frye.
Relevantly, our Supreme Court has held as follows:
Rule 702 of the Pennsylvania Rules of Evidence addresses
the general admissibility of expert testimony where scientific
evidence is at issue:
Rule 702. Testimony by experts
If scientific, technical or other specialized knowledge
beyond that possessed by a layperson will assist the
trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training or
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education may testify thereto in the form of an opinion
or otherwise.
Pa.R.E. 702.[10] This Court has noted that the Frye test, which
was adopted in Pennsylvania in Commonwealth v. Topa, 471
Pa. 223,
369 A.2d 1277 (1977), “is part of Rule 702.” Grady v.
Frito–Lay, Inc., 576 Pa. 546,
839 A.2d 1038, 1042 (2003). In
Frye, the Court of Appeals of the District of Columbia considered
whether expert evidence concerning a blood pressure “deception
test,” which supposedly determined whether a test subject was
being truthful based on changes in blood pressure, was admissible
against a criminal defendant. In rejecting the evidence, the court
opined that, to be admissible, the evidence must be sufficiently
established and accepted in the relevant scientific community:
Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be
recognized, and while courts will go a long way in
admitting expert testimony deduced from a wellrecognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently
established to have gained general acceptance in the
particular field in which it belongs.
Frye, 293 F. at 1014. This passage sets forth the core of what has
come to be known as the “Frye test.”
In Topa, where this Court considered spectrographic voice
print identification evidence, we described the Frye standard as
follows: “Admissibility of the [scientific] evidence depends upon
the general acceptance of its validity by those scientists active in
the field to which the evidence belongs.” Id. at 1281. In finding
that the proffered scientific evidence was inadmissible in Topa,
the Court quoted the rationale set forth by the Court of Appeals of
the District of Columbia in United States v. Addison, 498 F.2d
741, 744 (D.C.Cir. 1974):
____________________________________________
10 We recognize the basis of Appellant’s motion in limine, as well as the issue
raised on appeal, regards the exclusion of evidence of Appellant’s breath
alcohol test result as opposed to a pre-trial motion seeking to allow Ms. Harris
to offer an expert opinion at trial regarding the reliability of the test results.
However, we cite to and discuss Pa.R.E. 702 for the purposes of understanding
the development of Frye and its application in Pennsylvania.
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“The requirement of general acceptance in the
scientific community assures that those most qualified
to assess the general validity of a scientific method
will have the determinative voice. Additionally, the
Frye test protects prosecution and defense alike by
assuring that a minimal reserve of experts exists who
can critically examine the validity of a scientific
determination in a particular case. Since scientific
proof may in some instances assume a posture of
mystic infallibility in the eyes of a jury of laymen, the
ability to produce rebuttal experts, equally conversant
with the mechanics and methods of a particular
technique, may prove to be essential.”
Topa, 369 A.2d at 1282.
The [Supreme] Court has consistently followed this manner
of approach when confronted with novel scientific evidence in the
three decades since [the Court’s] adoption of Frye. Grady, supra
(expert witness’s conclusion concerning safety of food product
inadmissible because expert’s methodology lacked general
acceptance in relevant scientific community for purposes of
reaching such conclusion). In addition, in Grady, th[e] [Supreme]
Court recently made clear that Frye would remain the governing
Pennsylvania standard, and not the newer federal standard
represented by Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579,
113 S.Ct. 2786,
125 L.Ed.2d 469 (1993).
Grady, 839 A.2d at 1044–45.
…
[However, our Supreme] Court has made it clear that Frye is
not implicated every time science comes into the courtroom;
rather, it applies only to proffered expert testimony involving
novel science. Commonwealth v. Delbridge, 580 Pa. 68,
859
A.2d 1254, 1260 (2004) (plurality opinion) (citing Pa.R.E. 702 and
Grady, 839 A.2d at 1044). What constitutes novel scientific
evidence has historically been decided on a case-by-case basis,
and there is some fluidity in the analysis; indeed, science deemed
novel at the outset may lose its novelty and become generally
accepted in the scientific community at a later date, or the
strength of the proponent’s proffer may affect the Frye
determination.
In Grady, [for example,] the plaintiff sought to introduce
expert testimony concerning the downward force required to
break “Doritos” chips as well as the expert’s conclusion that
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Doritos remain too hard and too sharp after being chewed to be
swallowed safely. This Court held that, while the methodology
used by the expert to calculate the downward force may have
been generally accepted in the scientific community, his
methodology was not generally accepted as a means to reach the
conclusion that an item remains too hard and sharp to swallow
safely after being chewed. Accordingly, this Court found that the
trial court did not abuse its discretion in ruling the scientific
conclusion inadmissible. Grady, 839 A.2d at 1047.
Commonwealth v. Dengler, 586 Pa. 54,
890 A.2d 372, 380-82 (2005)
(some citations and footnote omitted) (footnote added).
In the case sub judice, in explaining the reasons it denied Appellant’s
motion in limine and permitted the Commonwealth to introduce evidence
during trial that Appellant’s breath alcohol content was 0.141%, as measured
by Corporal Herman using the Intoxilyzer 9000, the trial court indicated the
following:
[Appellant] asserts that the lack of reporting uncertainty,
confidence intervals, and the ability to document traceability do
not conform with generally accepted scientific principles.
[Appellant] contends the Frye standard of admissibility of
scientific evidence has been violated, [thus] making the breath
test result inadmissible.
[Appellant’s] argument lacks merit. Under Frye, novel
scientific evidence is admissible if the methodology that underlies
the evidence has general acceptance in the relevant scientific
community. See Commonwealth v. Blasioli, 552 Pa. 149,
713
A.2d 1117, 1119 (1998). Breathalyzer tests to determine alcohol
concentration are not novel science and are generally accepted
within the relevant scientific community. Furthermore, the use of
breathalyzer tests to determine alcohol concentration in the blood
are admissible as codified by the Pennsylvania legislature.
75 Pa.C.S.A. § 1547(c). Chemical Testing to Determine Amount
of Alcohol or Controlled Substance describes the test results
admissible in evidence:
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“In any summary proceeding or criminal proceeding
in which the defendant is charged with a violation of
Section 3802 (i.e., driving under the influence)…, the
amount of alcohol…in the defendant’s blood, as when
by chemical testing of the person’s breath, blood or
urine, which tests are conducted by qualified persons
using approved equipment, shall be admissible in
evidence.” 75 Pa.C.S.A. § 1547(c).
“Chemical tests of breath shall be performed on
devices approved by the Department of Health using
procedures prescribed jointly by regulations of the
Departments of Health and Transportation. Devices
shall have been calibrated and tested for accuracy
within a period of time and in a manner specified by
regulations of the Departments of Health and
Transportation. For purposes of breath testing, a
qualified person means a person who has fulfilled the
training requirement in the use of the equipment in a
training program approved by the Departments of
Health and Transportation. A certificate or log
showing that a device was calibrated and tested for
accuracy and that the device was accurate shall be
presumptive evidence of those facts in every
proceeding in which a violation of this title is
charged.”[11] 75 Pa.C.S.A. § 1547(c)(1).
Here, it is undisputed the Intoxilyer 9000 was used to
administer the breathalyzer test. “Only equipment and methods
approved by the Department [of Health] may be used for the
laboratory analysis of breath samples.” 28 Pa. Code § 5.102.
According to the Department of Health and the National
Highway Traffic Safety Administration guidelines, the Intoxilyer
9000 is an approved breathalyzer testing device. 48 Pa.Bull.
3011.
“The National Highway Traffic Safety Administration
(“NHTSA”) of the United States Department of Transportation
published model specifications for Screening Devices to Measure
Alcohol in Bodily Fluids at 59 FR 39382 (August 2, 1994). These
____________________________________________
11 In the case sub judice, there is no dispute Corporal Herman was a “qualified
person” or that the Intoxilyer 9000 was “approved equipment.” 75 Pa.C.S.A.
§ 1547. There is also no dispute the Intoxilyer 9000 had been properly
calibrated and tested for accuracy.
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specifications established performance criteria and methods for
testing alcohol screening devices to measure alcohol content. The
NHTSA established these specifications to support state laws and
the United States Department of Transportation’s workplace
alcohol testing program. The Department has elected to use the
NHTSA criteria for approving devices for the prearrest testing of a
person’s breath to determine the alcohol content of the person’s
blood.”
“The NHTSA published its first Conforming Products List
(“CPL”) for screening devices at 59 FR 61923 (December 2, 1994),
with corrections at 59 FR 65128 (December 16, 1994), identifying
the devices that meet the NHTSA’s Model Specifications for
Screening Devices to Measure Alcohol in Bodily Fluids. Thereafter,
the NHTSA updated the CPL at 60 FR 42214 (August 15, 1995),
66 FR 22639 (May 4, 2001),
70 FR 54972 (September 19, 2005),
with corrections at 70 FR 72502 (December 5, 2005) and
72 FR
4559 (January 31, 2007).”
“The NHTSA published revised Model Specifications for
Screening Devices to Measure Alcohol in Bodily Fluids at 73 FR
16956 (March 31, 2008). These specifications removed from use
interpretive screen devices (“ISD”) because ISDs did not provide
an unambiguous test result. These specifications also removed
from use the Breath Alcohol Sample Simulator as it is not
necessary for testing breath alcohol screening devices. All other
performance criteria and test methods were maintained. The
NHTSA published an additional update to the CPL at 74 FR 66398
(December 15, 2009). The current list was published at 77 FR
35745 (June 14, 2012).” 49 Pa.Bull. 7505.
At the time of Appellant’s arrest, the Pennsylvania
Department of Health approved the Intoxilyer 9000 as a device to
determine the alcohol content of the blood by analysis of a
person’s breath. 48 Pa.Bull. 3011 published May 19, 2018.
Furthermore, the Intoxilyzer 9000 remains approved in the most
recent Bulletin 49 Pa.Bull. 7505 published on December 21, 2019.
Therefore, the Intoxilyer 9000 is an approved device.
[Appellant] disputes the reliability of the Intoxilyzer 9000
because of the lack of reporting uncertainty, confidence intervals,
and the ability to document the traceability. [Appellant] supports
[his] contention with testimony of [his] expert witness who merely
disagreed with the test’s methodology. However, [Appellant] fails
to acknowledge Commonwealth’s Exhibit 1, which is the certificate
of Breath Testing Device Accuracy which specifically certifies the
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testing, accuracy, and the degree of accuracy within the specified
range of the Department of Health and Department of
Transportation regulations promulgated under Section 1547(c) of
the Vehicle Code, the Act of June 17, 1976, 75 Pa.C.S.A. §
1547(c).
Therefore, in accordance with 75 Pa.C.S.A. § 1547(c)(1),
the accuracy of the test is presumed, and [Appellant] fails to
provide [credible] evidence to the contrary. The issues raised by
[Appellant] regard the weight to be given to the evidence, which
is an issue to be determined by the finder of fact. Therefore, [the
trial court properly denied Appellant’s] motion in limine to
[exclude] the admission of the breath test results[.]
Trial Court Opinion, filed 2/7/22, at 2-5 (footnote added).
We agree with the trial court’s sound analysis. With the authorities set
forth by the trial court in mind, we find no abuse of discretion on the part of
the trial court in admitting the breath alcohol test result of 0.141%, as
measured by Corporal Herman using the Intoxilyzer 9000.
We are satisfied, and agree with the trial court, that Ms. Harris’
testimony did not involve science that could be deemed novel under Frye.
This case did not pose the classic Frye situation where the Commonwealth
sought to introduce Appellant’s breath alcohol test results under a novel
scientific test or as a common law matter. See Dengler, supra. Rather, the
“science” here (the corporal’s measuring of Appellant’s breath alcohol content
with the Intoxilyer 9000 for purposes of determining whether he was DUI) is
responsive to a specific legislatively adopted scheme, which sets forth the
requirements for gathering the challenged evidence, as well as the relevance
of the challenged evidence. See
id. Simply put, the General Assembly has
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set forth how chemical tests of breath shall be performed, how they shall be
recorded, and when they are admissible into evidence. There is no dispute the
Commonwealth followed these legislative protocols.
We further agree with the trial court that the Commonwealth’s failure to
provide uncertainty and confidence intervals goes to the weight of the
evidence. Simply put, we conclude the trial court did not abuse its discretion
in holding the lack of uncertainty and confidence intervals did not create unfair
prejudice or mislead the fact finder so as to require exclusion under Pa.R.E.
403. Accordingly, we find Appellant is not entitled to relief.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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