Appeal from the Judgment of Sentence entered January 4, 2011 in the Court of Common Pleas of Cumberland County Criminal Division at No: CP-21-CR-0000349-2010
The opinion of the court was delivered by: Olson, J.:
BEFORE: GANTMAN, LAZARUS and OLSON, JJ.
Appellant, Mary A. Dyarman, appeals from the judgment of sentence entered on January 4, 2011, as made final by denial of her post-sentence motion, directing her to serve 30 days to six months incarceration, plus fines and costs, for convictions of two counts of driving under the influence ("DUI"), 75 Pa.C.S.A. § 3802(a)(1) (general impairment)*fn1 and 75 Pa.C.S.A. § 3802(b) (high rate).*fn2 We affirm.
The record reveals the relevant factual and procedural background of this matter as follows:
On November 28, 2009, Corporal James Patterson initiated a traffic stop of a vehicle being driven by Appellant. At that time, Corporal Patterson determined that Appellant was incapable of the safe operation of a motor vehicle because of the influence of alcohol. Corporal Patterson arrested Appellant and transported her to the booking station of the Cumberland County Prison.
While at the booking station, Corrections Officer, Rodney Gsell, took over the processing of Appellant's case. Officer Gsell administered a breath test to Appellant, which determined that Appellant's blood alcohol content ("BAC") was .117%. Appellant was formally charged with two counts of DUI.
On October 29, 2010, Appellant submitted to a bench trial of those charges. During the trial, the Commonwealth presented the testimony of Officer Gsell. Through Officer Gsell's testimony, the Commonwealth moved for the admission of the calibration and accuracy logs for the Intoxilyzer 5000 EN, which is the device that Officer Gsell used to test Appellant's BAC. Appellant objected to the admission of the calibration logs, claiming that pursuant to the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), admission of the test logs would violate Appellant's rights under the confrontation clause of the Sixth Amendment of the United States Constitution since Officer Gsell was not the individual who performed the calibration tests of the device. The trial court overruled Appellant's objection and admitted the calibration logs.
The trial court found Appellant guilty of both counts of DUI, and thereafter sentenced her to 30 days to six months' incarceration, plus costs and fees. Appellant filed a post-sentence motion, again claiming that admission of the breathalyzer calibration logs, without the testimony of the individual performing the calibration, violated her rights under the confrontation clause. The trial court denied that motion and this appeal followed.
Appellant presents one issue for appeal:
Did the trial court commit an abuse of discretion and commit an error of law by admitting breath test results into evidence, where the Commonwealth failed to lay a proper foundation for the admissibility of said results insofar as the accuracy and calibration certificate of the breath test machine was introduced, in clear violation of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (U.S. 2009), and in violation of Appellant's Sixth Amendment right to confrontation, without the testimony of the lab technician(s) who prepared the certificate and performed the testing?
Appellant's Brief at 6.*fn3
Whether Appellant was denied her 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. ...