J-S53016-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MATTHIAS JOHN JOHNSON, Appellant No. 1915 WDA 2013

Appeal from the Judgment of Sentence August 22, 2013 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0001183-2012

BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 23, 2014 Appellant, Mathias John Johnson, appeals from the judgment of sentence entered on August 22, 2013 in the Criminal Division of the Court of Common Pleas of Butler County. We affirm.

The factual history and procedural background in this case are not in dispute. On January 26, 2012, Appellant was involved in a motor vehicle

the Butler City Police Department arrived at the scene and noticed that Appellant displayed signs of intoxication, including but not limited to emission of an odor of marijuana. Officer Rensel placed Appellant under arrest for suspicion of driving under the influence and arranged to have A consented to a legal blood draw at Butler Memorial Hospital and NMS Labs

*Retired Senior Judge assigned to the Superior Court.

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d.1 On September 24, 2012, the Commonwealth filed a criminal information charging Appellant with two counts of driving under the 3802(d)(2) and one count of required financial responsibility, 75 Pa.C.S.A. § 1786(f), a summary offense.2 Appellant did not file pre-trial motions and, after several continuances, proceeded to a non-jury trial.

-jury trial on July 1, 2013.

t results into

assistant laboratory director and forensic toxicologist. As the trial court described: [Dr. Barbieri] testified at trial that although he did not perform the testing, he did review all of the data, put the report together and signed it. No other technician or toxicologist signed the report. At trial, Dr. Barbieri provided extensive testimony regarding the results and conclusions he reached after analyzing the data. He concluded, based upon his training and experience,

motor vehicle. The toxicology report was submitted by the ____________________________________________

Specifically, the tests showed the presence of marijuana, benzodiazepines (lorazepam and clonazepam), and methadone 7/1/13, at 5.

Trial Court Order, 7/2/13.

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Commonwea

Trial Court Order, 11/12/13, at 1-2.

At the conclusion of trial, the court issued its verdict finding Appellant guilty of one count each of DUI and required financial responsibility.

Thereafter, on August 22, 2013, the court sentenced Appellant to 72 hours

DUI offender. The court also ordered Appellant to pay a fine for his financial responsibility conviction.

On August 30, 2013, Appellant timely filed a post-sentence motion for judgment of acquittal.3 The motion alleged that admission of the NMS report

evide through a laboratory supervisor who was not the laboratory technician who -Sentence Motion for Judgment of Acquittal, 8/30/13, at

____________________________________________

This was the first time Appellant raised any objection to the NMS lab report. As the trial court noted, counsel for Appellant indicated he had no See N.T., 7/1/13, at 14.

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motion, the court entered an order that denied relief. Trial Court Order, 11/12/13. This timely appeal ensued.4 In the sole issue he raises on appeal, Appellant claims that the trial court abused its discretion or erred as a matter of law in denying his post-sentence motion for judgment of acquittal. In particular, Appellant alleges that the admission of his toxicology report through Dr. Barbieri violated his confrontation clause rights because Dr. Barbieri was not the

Id. at 15. According to Appellant, Dr. Barbieri did

Id. at 14. In the absence of independent verification of the odstream, Appellant

so as to surmount a confrontation clause challenge. Thus, Appellant asserts that Dr. Barbieri offered only surrogate testimony of the type which was ____________________________________________

By order entered on December 20, 2013, the trial court directed Appellant to file, within 21 days, a concise statement of errors complained of on appeal pursuant to Pa.R.a.P. 1925(b). Appellant preserved the issue he now raises on appeal by incorporating his claim within a timely concise statement filed on January 15, 2014. On March 12, 2014, the trial court issued a the order docketed on November 12, 2013 as the place within the record where the reasons for the challenged determination could be found.

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deemed unconstitutional by the United States Supreme court in Bullcoming v. New Mexico, 131 S.Ct. 2705 (U.S. 2011).

rights under the [c]onfrontation [c]lause is a question of law, for which our standard of review is de novo Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013). The confrontation clause of the Sixth Amendment to the United States Constitution

Id. defined] as a solemn declaration or affirmation made for the purpose of Id. (case citation and internal quotations omitted). Under the Sixth Amendment, the Commonwealth may -of-court testimonial statements by a witness unless the witness is unavailable and the defendant had a prior opportunity for cross- Id.

purposes of confrontation clause analysis. Id. at 537. Therefore, the analyst who generates such a report must testify at trial and Appellant is entitled to confront the witness. See id. at 537-538. Appellant claims he ____________________________________________

Article I, Section 9 of the Pennsylvania Constitution offers similar protection and allows an accused to confront the witnesses against him.

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was deprived of this opportunity because Dr. Barbieri, the witness called by the Commonwealth to discuss his toxicology report at trial, did not

Our Supreme Court recently rejected a virtually identical claim in Yohe. There, the Supreme Court held that a forensic analyst who reviewed the underlying data and prepared and signed the challenged report Id. at 540. In reaching its conclusion, the Court reasoned: Although Dr. Blum did not handle [a]ppellant's blood sample, prepare portions for testing, place the prepared portions in the machines, or retrieve the portions after testing, these facts are not dispositive, and do not account for Dr. Blum's involvement in utilizing the information provided by his subordinates, legitimately relying on their work and that of other employees in the lab who logged receipt of the sample, checked the integrity of the sample, ensured proper storage, and of the phlebotomist who drew [a]ppellant's blood at the hospital. The Commonwealth complied with [Melendez Diaz v. Massachusetts, 557 U.S. 305 (2009)] by introducing the Toxicology Report with a witness competent to testify to the truth of the statements made in the report, and complied with Bullcoming by assuring [a]ppellant's right to be confronted with the in-court testimony of the scientist who evaluated the raw data in the case file and signed the certification. Yohe at 540-541.

We find these dispositive factors supporting admission to be present in the instant case. Dr. Barbieri was the assistant director and forensic toxicologist at NMS. Although he conceded that he did not personally perform toxicology tests, he testified that he reviewed all of the data -6- J-S53016-14

generated by other laboratory personnel and prepared and signed

independent assessments regarding the significance of the data recovered from the tests performed on App See id. at 4-14 (reviewing

therapeutic and non-therapeutic uses of those compounds, the significance of the observed concentrations, the potential interactions between the drugs, and the potential for impairment resulting from ingestion of the various drugs). In sum, Dr. Barbieri did not present mere surrogate

testimony and the introduction of the NMS report through a witness who was competent to verify its contents, combined with Appellant's opportunity to confront the scientist who evaluated the raw data and signed the certification in this case, assure us that the trial court did not run afoul of the Sixth Amendment herein.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/23/2014

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