Argued May 7, 2013
[Copyrighted Material Omitted]
Appeal from the order of the Superior Court, dated February 16, 2012, at No. 315 MDA 2011, reversing the order of the York County Court of Common Pleas, Criminal Division, entered January 13, 2011, at No. CP-67-CR-0007492-2009. Appeal allowed August 28, 2012 at 211 MAL 2012. Trial Court Judge: Michael E. Bortner, Judge. Intermediate Judges: Jack A. Panella, Sallie Mundy, JJ, James J. Firzgerald, III, Justice. 2012 PA Super. 34, 39 A.3d 381.
For George William Yohe, II, APPELLANT: Joshua Auriemma, Esq., Shawn Michael Doward, Esq.,Justin James McShane, Esq., Theodore Charles Tanski Jr., Esq., McShane Firm, LLC.
For PA Association of Criminal Defense Lawyers, APPELLANT AMICUS CURIAE: Jules Epstein, Esq.; Barbara A. Zemlock, Esq., Post & Schell, P.C.
For PA Association for Drunk Driving Defense Attorneys, APPELLANT AMICUS CURIAE: Michael Steven Sherman, Esq., Michael Steven Sherman, P.C.
For National College for DUI Defense Attorneys, APPELLANT AMICUS CURIAE: Leonard Stamm, Esq.
For Commonwealth of Pennsylvania, APPELLEE: Timothy Jon Barker, Esq.; Thomas L. Kearney III, Esq., Stephanie Elizabeth Lombardo, Esq., Duane Ramseur, Esq., James Edward Zamkotowicz, Esq., York County District Attorney's Office.
For Pennsylvania District Attorneys Association, APPELLEE AMICUS CURIAE: Hugh J. Burns Jr., Esq.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ. MR. JUSTICE BAER. Mr. Chief Justice Castille, Messrs. Justice Saylor and Eakin, Madame Justice Todd and Mr. Justice McCaffery join the opinion.
[621 Pa. 531] MR. BAER,
George William Yohe, II, (Appellant) appeals from the Superior Court order that reversed the trial court's order awarding a new trial on the ground that his constitutional right of confrontation was violated. We agree with the Superior Court that Appellant's constitutional right of confrontation was not violated at trial because the testifying witness was not a " surrogate witness," as Appellant argues. Rather, as discussed below, the witness was the author of the testimonial statement offered into evidence and, therefore, was an appropriate witness under the Confrontation Clause. Accordingly, Appellant's confrontation rights were protected by this testimony, and we affirm.
On August 19, 2009, Officer Scott George performed a traffic stop of Appellant's vehicle because of its faulty license plate and brake lights. During the course of the stop, the officer observed signs of alcohol consumption, and arrested Appellant for Driving Under the Influence of alcohol (DUI). Officer George transported Appellant to Memorial Hospital where a phlebotomist drew a blood sample and prepared it for shipment to National Medical Services Labs (NMS Labs) for chemical analysis.
NMS Labs received Appellant's blood sample on August 21, 2009. An employee examined it for proper seal, label, and volume, logged receipt of the sample, and placed it in a secured bin. It is the routine practice of NMS Labs to test blood samples for alcohol content by removing three small portions (referred to as " aliquots" ) from the blood sample and to conduct three distinct tests, using two testing methods, to determine alcohol content. One method of testing is gas chromatography, and the second is enzymatic assay, both of which determine the quantity of alcohol in the blood. It is the practice of NMS Labs routinely to test a blood sample for alcohol content twice using gas chromatography, and once using enzymatic assay.
[621 Pa. 532] In accord with this practice, NMS Labs conducted the three tests on Appellant's blood sample. First, NMS Labs' employee Megan Silcox retrieved the blood sample from storage, extracted an aliquot for testing, returned the balance of the sample to storage, and tested the aliquot for alcohol content using enzymatic assay. Next, another employee, Lisa Chacko, retrieved the blood sample from storage, extracted two more aliquots for testing, and returned the remaining sample to storage. She tested the aliquots for alcohol content twice, utilizing gas chromatography.
Dr. Lee Blum is Assistant Laboratory Director and a toxicologist at NMS Labs. As Assistant Lab Director, he is responsible for the lab's quality assurance program and client service. As a forensic toxicologist, he is involved in reviewing analytical testing, report writing, and testifying at trials. In this role, he receives the raw data that resulted from the three blood tests, checks the demographic information on the testing data, evaluates the chain of custody, and verifies that the lab technicians performed the appropriate testing.
Turning to the results from the three tests NMS generally conducts, Dr. Blum's practice is to examine the results of the duplicate gas chromatography tests to determine if they validate each other by being
within certain parameters, and, taking into account the appropriate margins of error, compare those test results to the results of the enzymatic assay test. If the test results are in accord, he will report the lower of the two gas chromatograph test results as the blood alcohol content (BAC) in accord with NMS Labs protocol.
After conducting this case review, Dr. Blum affixes his electronic signature to the Toxicology Report, which is a three page document summarizing the tests that were performed and the results therefrom, and certifies its contents. In addition to reporting the BAC, the Toxicology Report includes a certification that Dr. Blum " directly participated in the determination of the results by reviewing and certifying that the analytical data including internal standards and calculations utilized in reporting the results of this case are accurate [621 Pa. 533] and correct," and that Dr. Blum will be available to testify in court.
In this case, following laboratory procedure as outlined above, Dr. Blum reviewed Appellant's case file. The enzymatic assay test indicated Appellant's BAC was .175%, and the two gas chromatograph tests indicated it was .159% and .161%, respectively. Dr. Blum analyzed the data in the case file and electronically signed the Toxicology Report indicating Appellant's BAC was .159%, the lower of the gas chromatograph results.
At Appellant's August 30, 2010, non-jury trial, the Commonwealth introduced into evidence the Toxicology Report indicating that Appellant's BAC was .159% through the expert testimony of Dr. Blum. Appellant objected to Dr. Blum's testimony regarding the Toxicology Report, and to the admission of the Toxicology Report, on the grounds that it violated his right to confrontation guaranteed by the 6th Amendment of the U.S. Constitution because the specific lab technicians who performed the testing of Appellant's blood sample were not called as witnesses. The trial court overruled these objections.
Dr. Blum testified that, consistent with lab policy, on August 31, 2009, he reviewed Appellant's case file, which included the raw analytical data for the duplicate gas chromatography and enzymatic assay tests. He explained that the reason the lab employs tests on two types of machines is to ensure the accuracy of the result identified in the Toxicology Report: relying on two kinds of physical chemical analysis, performed by two different individuals, at two different times, confirms the verity of the test results.
With regard to Appellant's blood sample in particular, Dr. Blum testified that it was tested in duplicate through gas chromatography, producing values of .159% and .161%. The enzymatic assay produced a value of .175%. Dr. Blum considered these numbers to verify each other because they were [621 Pa. 534] within a certain percentage, recorded the lowest of these results in the Toxicology Report, and signed the report. He
testified to a reasonable degree of scientific certainty that Appellant's BAC was, as reflected in the Report, .159%.
On cross-examination, counsel questioned Dr. Blum about the chain of custody and the types of tubes used to contain Appellant's blood. Dr. Blum acknowledged that he did not observe either Ms. Silcox or Ms. Chacko take the aliquots from the blood sample or test the aliquots, and, indeed, did not personally handle the aliquots or the blood sample; rather, he reviewed all documentation in the file associated with the specimen.
After the Commonwealth rested its case, Appellant moved for judgment of acquittal, arguing that Dr. Blum's testimony was insufficient to satisfy the Confrontation Clause because he did not personally test Appellant's blood. The trial court denied the motion, and Appellant presented his defense. The trial ultimately court found Appellant guilty on August 30, 2010, of DUI.,
Following sentencing, Appellant filed a post-sentence motion [621 Pa. 535] reasserting his objection to the admission of Dr. Blum's testimony and the Toxicology Report on confrontation grounds, arguing that the Toxicology Report should not have been admitted without accompanying testimony by the toxicologists who performed the blood tests. On January 13, 2011, the trial court granted Appellant's post-sentence motion and granted a new trial, holding that the Toxicology Report was improperly admitted at trial because " an analyst who performed the tests did not testify." Trial Ct. Op, May 5, 2011, p. 1.
The trial court reached its conclusion by first finding that the Toxicology Report was a testimonial statement because it was compiled for the express purpose of being used at trial and was admitted into evidence. See Crawford v. Washington, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (defining testimonial statements as, inter alia, " ex parte in-court testimony or its functional equivalent," including affidavits " or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. . ." ). The trial court held, therefore, that the Toxicology Report was inadmissible without the testimony of the declarant. See id. (holding that a witness's testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination).
Next, the trial court held that the declarant whose testimony was required at trial was the " analyst who actually performed the analysis on [Appellant's] blood
sample." Trial Ct. Op., May 5, 2011, p 3. In this regard, the trial court relied on the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) and the Superior Court case Commonwealth v. Barton-Martin, 2010 PA Super. 163, 5 A.3d 363 (Pa.Super. 2010). In Melendez-Diaz, the prosecution proffered " certificates of analysis" identifying [621 Pa. 536] material seized from the defendant as drugs, which were sworn to by the analysts who ran the tests, without offering any witnesses in support of the certificates. 557 U.S. at 308. The defendant objected, arguing that he had a constitutional right to confront the analysts, who should have been required to testify. Id. at 309. The Supreme Court determined that the certificates were affidavits prepared under circumstances leading a reasonable person to believe they would be used at trial, and, accordingly, were testimonial. Id. at 310. Consequently, the analysts who prepared the certificates were " witnesses" for purposes of the Sixth Amendment whom the defendant had a right to confront. Id. at 311. Because this right was not afforded, the certificates were deemed inadmissible.
In Barton-Martin, the defendant objected to admission of a blood alcohol lab report without the testimony of the laboratory technician who performed the test and prepared the report. 5 A.3d at 365. The Commonwealth had presented the testimony of a witness who was the laboratory administrative director and custodian of records for the hospital where the analysis was performed. Id. at 366. Although the witness testified about lab procedures generally, she had not analyzed the defendant's blood or the results of the blood tests. Id. The trial court admitted the report, but the Superior Court reversed, holding the blood alcohol report was the type of ex parte out-of-court statement that was inadmissible without an opportunity for confrontation pursuant to Melendez-Diaz. Id. at 368. The court held that absent a showing that the laboratory technician who ran the test and authored the report was unavailable and the defendant had a prior opportunity for cross-examination, " the laboratory technician's failure to testify in the Commonwealth's case-in-chief violated [the defendant's] Sixth Amendment right to confrontation." Id. at 369. The testimony of the custodian of records, unconnected to the performance of the analysis at issue, did not satisfy the defendant's constitutional rights.
[621 Pa. 537] Considering Melendez-Diaz and Barton-Martin, the trial court here reasoned that Dr. Blum's testimony was insufficient because he neither tested the aliquots nor observed the testing, and Appellant's cross-examination of Dr. Blum was limited in ways that cross-examination of the analyst who performed the test would not have been: " While credibility of the analyst is certainly an issue, it is not the sole reason for requiring that he or she be subject to confrontation; the manner of testing requires some exercise of judgment, which presents a risk of error that could be addressed on cross-examination." Trial Ct. Op., May 5, 2011, p. 3-4.
The Commonwealth appealed to the Superior Court, arguing that because Dr. Blum was the analyst who derived the numerical conclusion of Appellant's BAC, his testimony regarding the Toxicology Report satisfied Appellant's right of confrontation under the Sixth Amendment. Commonwealth v. Yohe, 2012 PA Super. 34, 39 A.3d 381 (Pa.Super. 2012). The Superior Court agreed, concluding that the trial court erred in determining Appellant was entitled to a new trial, and reversed. Id. The Superior Court observed that after Melendez-Diaz and subsequent to Appellant's
trial, the United States Supreme Court addressed a scenario similar to that presented
in Barton-Martin in Bullcoming v. New Mexico, __ U.S. __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011).
In Bullcoming, the defendant was charged with driving while intoxicated, and, at his subsequent trial, the laboratory report of his BAC was offered into evidence. Id. at 2709. The report was completed, signed, and certified by an analyst who was not called to testify. Id. at 2711-12. Instead, the prosecutor called as a witness another analyst from the same lab to testify generally about lab procedures and equipment. Id. at 2712. The Supreme Court initially, again, reiterated that " [a]n analyst's certification prepared in connection with a criminal investigation or prosecution" is testimonial, and is therefore subject to the requirements of the Confrontation Clause, id. at 2713-14 (citing Melendez-Diaz, 557 U.S. at 318-21), and that an out-of-court testimonial statement " may not be introduced against the accused at trial [621 Pa. 538] unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." Id. at 2713.
Because the trial court had " permitted the testimonial statement of one witness . . . to enter into evidence through the in-court testimony of a second person . . .," the High Court reversed. Id. The Court specifically disapproved of such " surrogate testimony," which could not have conveyed " what [the certifying analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed," nor would it " expose any lapses or lies on the certifying analyst's part." Id. at 2715. The Court concluded that the reliability ...