The opinion
J-A29032-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PRECIOUS HUDSON :
:
Appellant : No. 573 WDA 2023
Appeal from the Judgment of Sentence Entered April 17, 2023
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0004432-2022
BEFORE: OLSON, J., LANE, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 6, 2025
Appellant, Precious Hudson, appeals from the judgment of sentence of
3 to 6 days’ incarceration and a concurrent term of 6 months’ probation,
imposed after she was convicted of driving under the influence (DUI) – highest
rate of alcohol, 75 Pa.C.S. § 3802(c), and other related offenses. Appellant
challenges the trial court’s admission of a report detailing her blood alcohol
content (BAC) test results, when the employee from the Allegheny County
Medical Examiner’s Office who analyzed her blood draw and drafted the report
did not testify. After careful review, we vacate Appellant’s judgment of
sentence and remand for a new trial.
The facts underlying Appellant’s conviction are unnecessary to our
disposition of her appeal. We only briefly mention that on October 22, 2021,
police officers responded to a report of a car accident involving a Jeep hitting
multiple parked cars. See Appellant’s Brief at 8. The owner and driver of the
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Jeep, Appellant, was at the scene. Id. She was ultimately taken to the
hospital where she consented to a blood draw. Id. at 9. The test of
Appellant’s blood indicated that her BAC was .241. Id.
On July 25, 2022, Appellant was charged with DUI – highest rate of
alcohol, as well as DUI – general impairment (75 Pa.C.S. § 3802(a)(1)) and
reckless driving (75 Pa.C.S. § 3736(a)). On December 20, 2022, she filed a
pretrial motion to suppress, and a hearing was conducted on January 26,
2023. On March 8, 2023, the court denied the motion and immediately
proceeded to Appellant’s non-jury trial. At the close thereof, the court
convicted Appellant of all counts with which she was charged. On April 17,
2023, it sentenced her to the aggregate term set forth supra.
Appellant filed a timely notice of appeal, and she and the court complied
with Pa.R.A.P. 1925. Herein, she states one issue for our review: “Did the
trial court err in admitting the blood draw results without analyst testimony in
violation of [Appellant’s] confrontation clause rights?” Appellant’s Brief at 5
(unnecessary capitalization and emphasis omitted).
Pertinent to Appellant’s issue, we note that at the start of her non-jury
trial, the Commonwealth sought to admit a report detailing Appellant’s BAC
results. N.T. Trial, 3/8/23, at 4. The Commonwealth argued that the report
was “admissible without a witness” under 75 Pa.C.S. § 1547(c), which states,
in pertinent part:
(c) Test results admissible in evidence.--In any summary
proceeding or criminal proceeding in which the defendant is
charged with a violation of section 3802 or any other violation of
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this title arising out of the same action, the amount of alcohol or
controlled substance in the defendant’s blood, as shown by
chemical testing of the person’s breath or blood, which tests were
conducted by qualified persons using approved equipment, shall
be admissible in evidence.
(1) Chemical tests of breath shall be performed on devices
approved by the Department of Health using procedures
prescribed jointly by regulations of the Departments of
Health and Transportation. Devices shall have been
calibrated and tested for accuracy within a period of time
and in a manner specified by regulations of the Departments
of Health and Transportation. For purposes of breath
testing, a qualified person means a person who has fulfilled
the training requirement in the use of the equipment in a
training program approved by the Departments of Health
and Transportation. A certificate or log showing that a
device was calibrated and tested for accuracy and that the
device was accurate shall be presumptive evidence of those
facts in every proceeding in which a violation of this title is
charged.
(2)(i) Chemical tests of blood, if conducted by a
facility located in this Commonwealth, shall be
performed by a clinical laboratory licensed and
approved by the Department of Health for this
purpose using procedures and equipment prescribed
by the Department of Health or by a Pennsylvania
State Police criminal laboratory. For purposes of blood
testing, qualified person means an individual who is
authorized to perform those chemical tests under the
act of September 26, 1951 (P.L. 1539, No. 389),
known as The Clinical Laboratory Act.
(ii) For purposes of blood testing to determine blood
alcohol or controlled substance content levels, the
procedures and equipment prescribed by the
Department of Health shall be reviewed within 120
days of the effective date of this subparagraph and at
least every two years thereafter to ensure that
consideration is given to scientific and technological
advances so that testing conducted in accordance with
the prescribed procedures utilizing the prescribed
equipment will be as accurate and reliable as science
and technology permit.
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75 Pa.C.S. § 1547(c)(1), (2) (footnote omitted).
Appellant’s counsel objected to the admission of the BAC report “without
having someone from the Medical Examiner’s Office present to authenticate
the document.” N.T. at 5. Counsel argued:
[Defense Counsel]: As to the statute that the Commonwealth has
presented, that statute requires these results are being done by a
qualified person on qualified equipment. However, without having
someone here from the Medical Examiner’s Office … to
authenticate these documents or to cross-examine, it’s a violation
of my client’s Sixth Amendment right to confront their accusers,
because I cannot cross-examine the officer as to the person who
did the test, what their credentials were at the time of doing the
testing, what specific machine they did the test on, and whether
that machine was properly calibrated at that time.
I’m basically being deprived of my duty to cross-examine the
Commonwealth’s witnesses and challenge their evidence if this lab
is admitted without having anybody from the crime lab here.
Id. at 5-6. The court overruled Appellant’s objection to the admission of the
BAC report. Id. at 6. Later, when the Commonwealth actually moved to
admit the BAC report into evidence, defense counsel renewed his objection,
which was again overruled and the report was admitted. Id. at 16.
Appellant now contends that the admission of the report violated her
confrontation clause rights. Initially, she notes that she did not stipulate to
the admission of the BAC report. Additionally, Appellant argues, and the
Commonwealth concedes, that the Pa.R.Crim.P. 574 procedure for admitting
forensic reports without testimony by the person who performed the analysis
was not met in this case. See Pa.R.Crim.P. 574 (directing that a forensic
laboratory report may be admitted, “in lieu of testimony by the person who
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performed the analysis or examination that is the subject of the report[,]”
where, inter alia, the Commonwealth provides written notice to the defendant,
and the defendant has time to respond with a demand that testimony be
offered); see also Appellant’s Brief at 16; Commonwealth’s Brief at 8. Thus,
Appellant contends that the court’s admitting the report violated the United
States Supreme Court’s decision in Melendez–Diaz v. Massachusetts, 557
U.S. 305 (2009), where the United States Supreme Court “held that lab
reports admitted to establish a defendant’s guilt constitute[] testimonial
statements covered by the Confrontation Clause of the United States
Constitution and that such reports [are] inadmissible unless the defendant
ha[s] the opportunity to cross-examine the lab analyst at trial.”
Commonwealth v. Barton-Martin, 5 A.3d 363, 365 (Pa. Super. 2010).
In Barton-Martin, another case relied on by Appellant herein, we held
that the Commonwealth’s failure to call to the stand the lab technician who
performed the test on the appellant’s blood precluded the admission of the
BAC report. We explained:
In Melendez–Diaz, the Supreme Court determined that the
admission of certificates showing the results of forensic analysis
performed on seized substances in a cocaine trafficking trial
violated the Sixth Amendment. The Supreme Court held that the
certificates in question were not typical business records capable
of admission through the testimony of a document custodian.
Rather, the Supreme Court reasoned that lab reports admitted to
prove an element of a crime (in that case, that a certain substance
was cocaine), are not kept in the “regular course of business,” but
are created and calculated for use in court. Therefore, the records
serve as direct “testimony” against the defendant, to which the
defendant is entitled to confrontation.
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Based upon this reasoning, the Supreme Court held that, absent
a showing that the analysts of the cocaine were unavailable to
testify at trial and that petitioner had a prior opportunity to cross-
examine them, petitioner was entitled to ‘be confronted with’ the
analysts at trial. In reversing the trial court’s judgment, the
Supreme Court concluded that the Sixth Amendment does not
permit the prosecution to prove its case via ex parte out-of-court
affidavits, and the admission of such evidence … was error.
In this matter, [the a]ppellant argues that pursuant to
Melendez–Diaz, the admission of her BAC test result, without
establishing the unavailability of the laboratory analyst, was a
violation of her Sixth Amendment right to confrontation and
therefore an error of law. We agree. Specifically, to be convicted
of 75 Pa.C.S.[] § 3802(c) (highest rate), the Commonwealth was
required to prove, beyond a reasonable doubt, that [the
a]ppellant’s BAC within two hours after operating a vehicle was
0.16% or higher. To establish that element, the Commonwealth
introduced a lab report, and offered testimony from the custodian
of records for Hanover Hospital to establish that [the a]ppellant’s
BAC result constituted a business record. The trial court admitted
the lab report on that ground. The Commonwealth did not present
the laboratory technician who performed the test on [the
a]ppellant’s blood sample. Therefore, that portion of the
Commonwealth’s case that was dependant [sic] upon [the
a]ppellant’s BAC level was proven with the very type of ex parte
out-of-court report ruled inadmissible (without the opportunity for
confrontation) in Melendez–Diaz.
Consequently, pursuant to the Supreme Court’s holding in
Melendez–Diaz, absent a showing that the laboratory technician
was unavailable, and the [a]ppellant had a prior opportunity to
cross-examine her, the laboratory technician’s failure to testify in
the Commonwealth’s case-in-chief violated [the a]ppellant’s Sixth
Amendment right to confrontation. Because no showing of
unavailability and prior cross examination was made, the
admission of [the a]ppellant’s BAC test results in this matter was
an error of law.
Id. at 368-69 (some citations and quotation marks omitted).
Appellant insists that here, as in Barton-Martin, the trial court’s
admission of the BAC report without the testimony of the laboratory
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technician, or a showing he/she was unavailable and that Appellant had a prior
opportunity to cross-examine him/her, constitutes reversible error. She
argues that
[i]f the test result is admitted solely through [s]ection 1547(c),
the defense cannot probe whether the analyst lied or was
proficient, nor challenge other topics involving how the test was
conducted. Furthermore, even if one were to assume that a listing
in the Pennsylvania Bulletin means that the testing process is
reliable, the right to confront the witnesses from the laboratory is
still necessary. As Crawford [v. Washington, 541 U.S. 36
(2004),] reasoned, “Dispensing with confrontation because
testimony is obviously reliable is akin to dispensing with [a] jury
trial because a defendant is obviously guilty. This is not what the
Sixth Amendment prescribes.”
Appellant’s Brief at 23 (quoting Crawford, 541 U.S. at 62).
Notably, the Commonwealth concedes that Appellant is correct, and that
a new trial is warranted. See Commonwealth’s Brief at 4. We appreciate the
Commonwealth’s candor with this Court. Under the rationale of Melendez-
Diaz and Barton-Martin, we agree with both parties that Appellant’s
confrontation clause rights were violated by the admission of the BAC report
without the testimony — or proven unavailability — of the laboratory
technician who performed the test on Appellant’s blood sample.1 Accordingly,
we vacate Appellant’s judgment of sentence and remand for a new trial.
____________________________________________
1 We disagree with the trial court that Appellant waived her challenge to the
admission of the BAC report. See TCO at 12 (unnumbered). Appellant clearly
objected to the admission of the report as violative of her confrontation clause
rights. See N.T. at 5-6. She also preserved this claim in her Rule 1925(b)
statement. See Pa.R.A.P. 1925(b) Statement, 7/13/23, at 3 (unnumbered).
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Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
DATE: 2/6/2025
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