Appeal from the Order entered January 13, 2011 in the Court of Common Pleas of York County Criminal Division at No. CP-67-CR-0007492-2009
The opinion of the court was delivered by: Mundy, J.
BEFORE: PANELLA, MUNDY, AND FITZGERALD,*fn1 J.J.
The Commonwealth appeals from the order entered January 13, 2011 granting the post-sentence motion filed by Appellee, George William Yohe, II, and awarding him a new trial. Because we conclude the trial court erred in determining Appellee was entitled to a new trial on the basis his constitutional right of confrontation was violated, we reverse.
On August 19, 2009, Officer Scott George of the Northeast Regional Police Department performed a traffic stop of Appellee's vehicle for equipment violations. Upon observation of Appellee, Officer George suspected he had been driving under the influence of alcohol (DUI) and performed field sobriety tests. Appellee was then arrested and transported to Memorial Hospital where a phlebotomist drew a blood sample for chemical analysis. Officer George filed a criminal complaint charging Appellee with two counts of DUI under 75 Pa.C.S.A. § 3802(a)(1) and(b).*fn2 The case proceeded to a bench trial on August 30, 2010. At trial, the Commonwealth presented the testimony of Officer George and Dr. Lee Blum, a toxicologist and assistant laboratory director at National Medical Services (NMS Labs) where Appellee's blood sample was analyzed. Appellee objected to Dr. Blum's testimony regarding the report of the analysis of Appellee's blood alcohol level and later to the admission of that toxicology report on the grounds it violated his right to confrontation guaranteed under the 6th amendment of the U.S. Constitution. N.T., 8/30/10, at 47, 62. The trial court overruled Appellee's objections. Id. at 49, 62. At the conclusion of the trial, the trial court found Appellee guilty of DUI under 75 Pa.C.S.A. § 3802(b) and not guilty of DUI under 75 Pa.C.S.A. § 3802(a)(1). Id. at 96.
On October 25, 2010, the trial court sentenced Appellee to a term of incarceration of 48 hours to six months and a fine of $500.00. Certified Record (C.R.) at 18, 19. On the same day, Appellee filed a post-sentence motion reasserting his objection to the admission of Dr. Blum's testimony and the toxicology report on constitutional right-of-confrontation grounds.
C.R. at 20. On January 13, 2011, the trial court entered an order, together with an opinion in support, granting Appellee's post-trial motion and awarding a new trial. C.R. at 25. On January 26, 2011, the Commonwealth filed a motion for reconsideration. C.R. at 26. On January 28, 2011,
Appellee filed a motion for reconsideration requesting the judgment of sentence be vacated rather than a new trial ordered. The trial court did not act on the motions for reconsideration. Id. On February 11, 2011, the Commonwealth filed a notice of appeal.*fn3 C.R. at 27. On February 18, 2011, the trial court directed the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). C.R. at 28. The Commonwealth timely complied on March 9, 2011. C.R. at 30. On May 6, 2011, the trial court filed an opinion in support of its January 13, 2011 order, which both incorporated by reference and amplified its January 13, 2011 opinion, pursuant to Pa.R.A.P. 1925(a). C.R. at 33.
On appeal, the Commonwealth raises one general question with four sub-issues for our review.
I. Did the trial erred [sic] in granting [Appellee's]
post[-]sentence motion when the trial court ruled that [Appellee's] blood test and blood alcohol content were imporperly [sic] admitted at trial because an analyst who performed the tests did not testify?
A. Did [t]he [t]rial [c]court err in holding that the
Commonwealth did not call an analyst to testify when the Commonwealth called a forensic toxicologist to render an expert opinion concerning the conclusions produced by him, which included [Appellee's] blood alcohol content, thereby qualifying as an analyst[?]
B. Did [t]he [t]rial [c]court err in finding that
Melendez-Diaz v. Massachusetts and Commonwealth v. Barton-Martin required the Commonwealth to call witnesses other than the forensic toxicologist to testify regarding opinions and/or conclusions as a result of the blood analysis, which included [Appellee's] blood alcohol content[?]
[C]. Did [t]he [t]rial [c]court err in finding the forensic toxicologist's testimony regarding his opinion and/or conclusions as a result of the blood analysis, which included [Appellee's] blood alcohol content, inadmissible when the evidence was properly admitted pursuant to Pa.R.E. 702 and 703; in so ruling that [Appellee's] blood results inadmissible, the [t]rial court de facto held that Rules 702 and 703 violate the
[D]. Did [t]he [t]rial [c]court err in holding the blood results inadmissible when the Commonwealth properly established the methodology and reliability of the testing procedures used by NMS Labs pursuant to the testimony of the forensic toxicologist, who also testified regarding his opinion and/or conclusions as a result of the blood analysis, including [Appellee's] blood alcohol content, and the Pennsylvania Bulletin, which is proper under the Confrontation Clause[?]
Commonwealth's Brief at 4-5.
The Commonwealth's first two sub-issues are interrelated so we shall address them together. At the heart of the Commonwealth's position is its contention that Dr. Blum was an appropriate witness to satisfy Appellee's right of confrontation under the Sixth Amendment to the United States Constitution and that the trial court erred as a matter of law in determining otherwise. Commonwealth's Brief at 10. "Whether Appellant 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. Dyarman, ___ A.3d ___, 2011 WL 5560176 at *2 (Pa. Super. 2011), citing Commonwealth v. Atkinson, 987 A.2d 743, 745 (Pa. Super. 2009).
The Confrontation Clause in the Sixth Amendment to the United States Constitution applies to both federal and state*fn4 prosecutions and provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." U.S. Const. amend. IV. The Pennsylvania Constitution likewise provides that, "[i]n all criminal prosecutions ...