ARGUED: November 27, 2012
Appeal from the Order of Superior Court at No. 329 MDA 2011 dated 11-16-2011 affirming the judgment of sentence of the Cumberland County Court of Common Pleas, Criminal Division, at No. CP-21-349-2010 entered 01-04-2011.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
MR. EAKIN JUSTICE
We granted review to determine whether the admission of accuracy and calibration certificates for breath test machines without testimony from the individual who performed the testing and prepared the certificates violated appellant's Sixth Amendment right to confrontation. Under the circumstances of this case, we hold appellant's Sixth Amendment right was not violated, and affirm the order of the Superior Court.
On November 28, 2009, Corporal James Patterson stopped a vehicle driven by appellant. Corporal Patterson determined appellant was under the influence of alcohol; he arrested and transported her to the DUI booking station at the Cumberland County Prison. Upon arrival, Corrections Officer Rodney Gsell took over processing and administered a breath test to determine appellant's blood alcohol content (BAC). When the test indicated appellant had a BAC of .117%, she was formally charged with two counts of driving under the influence of alcohol (DUI). See 75 Pa.C.S. §§ 3802(a)(1) (general impairment), 3802(b) (high rate of alcohol).
On October 29, 2010, at a bench trial, the Commonwealth presented the testimony of Officer Gsell, and moved to admit the calibration and accuracy certificates for the device used to test appellant's BAC. See 67 Pa. Code §§ 77.25(c) (certificate of accuracy), 77.26(d) (certificate of calibration). Appellant objected, arguing admission of the certificates would violate her rights under the Confrontation Clause of the Sixth Amendment,  as delineated in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009), because Officer Gsell was not the individual who performed the calibration and accuracy tests. The trial court overruled the objection and thereafter found appellant guilty of both counts of DUI. After sentencing, appellant filed a post-sentence motion, again claiming the admission of the calibration and accuracy certificates violated her rights under the Confrontation Clause. The trial court denied the motion, and appellant appealed to the Superior Court.
A Superior Court panel unanimously affirmed, explaining the crucial question for Confrontation Clause purposes was whether the statements contained within the calibration and accuracy certificates were "testimonial" in nature. Dyarman, at 107-08. Relying on the United States Supreme Court's decisions in Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz, as well as its own decision in Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010), appeal denied, 30 A.3d 486 (Pa. 2011) (table),  the Superior Court held the statements at issue here (i.e., the certificates) were not "testimonial." It noted that in Crawford, Melendez-Diaz, and Barton-Martin, "the statements were prepared in anticipation of litigation of a particular case, and were necessary to prove an element of the crime charged." Dyarman, at 107. Here, conversely, the certificates "were not created in anticipation of [a]ppellant's particular litigation, or used to prove an element of a crime for which [a]ppellant was charged"; rather, they "were admitted into evidence to establish the chain of custody and accuracy of the device used to test [a]ppellant's BAC[.]" Id, at 108. Accordingly, the Superior Court concluded "although relevant evidence, the [certificates] were not 'testimonial' for purposes of the protections afforded by the [C]onfrontation [C]lause, as contemplated by Crawford, Melendez-Diaz, and Barton-Martin." Id
As further support for this conclusion, the Superior Court looked to dicta in Melendez-Diaz, wherein the United States Supreme Court majority suggested:
[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody ... or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that "[i]t is the obligation of the prosecution to establish the chain of custody, " this does not mean that everyone who laid hands on the evidence must be called. ... It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
Melendez-Diaz, at 311 n.1 (internal citations omitted; emphasis in original).
Based on the foregoing, the Superior Court determined the certificates were properly admitted into evidence, and appellant was not entitled to relief. Id. (citing Pa.R.E. 803(6) (business records exception); 75 Pa.C.S. § 1547 (relating to chemical testing to determine amount of alcohol)).
Appellant argues the Superior Court's decision directly contravenes Melendez-Diaz because the Commonwealth attempted to lay a foundation for the admission of appellant's BAC test results by introducing the calibration and accuracy certificates without presenting the testimony of the technician who performed the tests. Appellant claims, just as in Melendez-Diaz, the certificates were an affidavit which "belong to the core class of testimonial statements as expressed by the Supreme Court of the United States in Crawford and expounded upon by that [C]ourt in Melendez-Diaz." Brief for Appellant, at 15 (internal quotation marks omitted). Further, appellant contends the dicta in Melendez-Diaz's footnote should not control the outcome of this case because the Supreme Court qualified its statement, that not all persons whose testimony establishes the accuracy of a testing device must appear in person, by declaring "'what testimony is introduced must (if the defendant objects) be introduced live.'" Id, at 15-16 (quoting Melendez-Diaz, at 311 n.1 (emphasis in original)).
In Melendez-Diaz, the Supreme Court addressed whether certificates "reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant" were "testimonial" for purposes of the Confrontation ...