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Commonwealth v. Milburn

Superior Court of Pennsylvania

July 12, 2013


Appeal from the Judgment of Sentence June 30, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002927-2007




Ronald Milburn appeals from the judgment of sentence of five to ten years imprisonment that was imposed after he was convicted in absentia by a jury of delivery of a controlled substance and possession of a controlled substance with intent to deliver ("PWID"). We reject his Confrontation Clause challenges and affirm.

Appellant's convictions were based upon the following events. In January 2007, Philadelphia Police Officer James Coolen conducted a drug investigation at 2066 Bridge Street, Philadelphia. On January 18, 2007, Officer Coolen supervised a controlled buy at the noted location using a confidential informant ("CI") to obtain $150 in cocaine. Appellant opened the door to 2066 Bridge Street and briefly spoke with the CI, who then proceeded to a nearby street corner. Appellant entered the residence for about one minute, exited it, and handed the CI packets of cocaine in exchange for the controlled-buy money. On January 23, 2007, Officer Coolen conducted another controlled buy at the same location. The drug purchase was conducted in the identical manner as the one that transpired on January 18, 2007, except that the CI bought $100 worth of cocaine.

Based on these two controlled buys, Officer Coolen obtained a search warrant for 2066 Bridge Street and executed the warrant on January 26, 2007. Appellant was present and cocaine was found on his person. There were thirty-eight grams of cocaine and about $1, 200 in currency located in a bedroom, where police also discovered mail addressed to Appellant and photographs of him. The Commonwealth presented the testimony of Johnson Vargagse, a forensic chemist with the Philadelphia Police Chemistry Lab (the "Lab"). Mr. Vargagse related that chemical testing established that the substances recovered on January 18th and January 23rd from the CI and those located in Appellant's bedroom on January 26th were cocaine.

Appellant was arrested on January 26, 2007, released on bail in March 2007, and absconded. After various listings, Appellant eventually was tried on March 14, 2011 in absentia, but the jury deadlocked. On June 30, 2011, a second jury convicted Appellant of one count of delivery of a controlled substance based on the controlled buys and one count of PWID based on the cocaine discovered as a result of the execution of the warrant. Immediately after the jury rendered its verdict, counsel waived the preparation of a presentence report. Appellant had a criminal history that included convictions for burglary and aggravated assault. The court imposed a term of incarceration of five to ten years. Appellant was apprehended shortly after he was sentenced. He filed the present appeal and raises this question on appeal:

Did not the lower court err by permitting a police chemist to testify to the results of narcotic chemical testing the chemist did not perform or observe based on laboratory reports he did not write, to introduce these laboratory reports into evidence at appellant's trial both to prove that the alleged narcotics in this case were cocaine, and to permit the same police chemist to use the results and reports as a basis for his expert opinion in the absence of the testimony of chemists who performed the tests and wrote the reports at issue as the test results and reports were testimonial evidence and their introduction through the non-testing chemist violated appellant's constitutional rights to confrontation?

Appellant's brief at 3.

Appellant's contentions are that his Confrontation Clause rights were violated when: 1) the reports of non-testifying analysts who conducted part of the testing of the cocaine were admitted into evidence; and 2) Mr. Vargagse was permitted to rely upon those test results in rendering his opinion that the materials involved in this matter were cocaine. The 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. Dyarman, 33 A.3d 104, 106 (Pa.Super. 2011).

The following facts are pertinent to a resolution of Appellant's allegations. As noted, the Commonwealth presented the testimony of Mr. Vargagse, who has a master's degree in chemistry, to establish that the three substances in question were cocaine. He worked for the Lab for ten years, and his duties included conducting analyses of narcotic drugs, including cocaine. Mr. Vargagse rendered a conclusion that the substances were cocaine based upon the results of two separate tests.[1]

Mr. Vargagse stated that the chemical analysis in question consists of two steps, the first step is a "current test of the drugs, " and the "second step is the confirmation of the drug by instruments." N.T. Trial (Jury), 6/30/11, at 37. Mr. Vargagse described the current test as a color test known as a SCOTT test. The SCOTT test consists of three steps. A portion of the substance being tested is placed in a test tube, a re-agent is added, and the substance must turn blue. If the substance turns blue, hydrochloric acid is added to the step one solution, and, if the substance turns pink, then the third step is conducted. For that final testing phase, chloroform is added. If the substance separates into two layers, the top layer being pink and the bottom layer being blue, that "indicates the presence of cocaine." Id. at 42. Mr. Vargagse did not perform the SCOTT test on any of the drugs involved in this case; however, he did personally conduct the second instrument test on each one. That test is known as chromatography/mass spectrometry or GC/MS testing. The GC/MS examination confirms the presence and amount of drug in any sample submitted for testing. The person performing the SCOTT test and the GC/MS test thereafter produces a report for each test. As noted, both tests must be positive before Mr. Vargagse will confirm that a substance is cocaine.

The three SCOTT tests were conducted by other analysts, who did not testify at Appellant's trial. Appellant objected to Mr. Vargagse's references to the results of the SCOTT tests performed on the substances in question.[2] Mr. Vargagse personally performed the GC/MS tests on the drugs seized: 1) on January 18, 2007, in a knotted clear plastic bag and recovered by police from the CI; 2) on January 23, 2007, which were found in five blue-tinted packets and taken from the CI; and 3) on January 26, 2007, in forty-three blue-tinted packets and three knotted, clear plastic bags that were seized with the warrant from Appellant's bedroom.[3] Mr. Vargagse also personally prepared the reports establishing the results of the GC/MS testing. He opined, based upon the results of the SCOTT test and his own GC/MS testing, that all three samples were cocaine.

Appellant claims that he is entitled to a new trial since: 1) the reports of the SCOTT tests prepared by the three non-testifying witnesses were introduced at trial, and 2) Mr. Vargagse relayed the results of the SCOTT tests at trial when he testified that, to a reasonable degree of scientific certainty, the three substances were cocaine. Appellant maintains that his Confrontation ...

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