Commonwealth v. Dyarman

33 A.3d 104, 2011 Pa. Super. 245, 2011 Pa. Super. LEXIS 3748
CourtSuperior Court of Pennsylvania
DecidedNovember 16, 2011
StatusPublished
Cited by15 cases

This text of 33 A.3d 104 (Commonwealth v. Dyarman) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Dyarman, 33 A.3d 104, 2011 Pa. Super. 245, 2011 Pa. Super. LEXIS 3748 (Pa. Ct. App. 2011).

Opinion

OPINION BY

OLSON, J.:

Appellant, Mary A. Dyarman, appeals from the judgment of sentence entered on January 4, 2011, as made final by denial of her post-sentence motion, directing her to serve 30 days to six months incarceration, plus fines and costs, for convictions of two counts of driving under the influence (“DUI”), 75 Pa.C.S.A. § 3802(a)(1) (general impairment)1 and 75 Pa.C.S.A. § 3802(b) (high rate).2 We affirm.

The record reveals the relevant factual and procedural background of this matter as follows:

On November 28, 2009, Corporal James Patterson initiated a traffic stop of a vehicle being driven by Appellant. At that time, Corporal Patterson determined that Appellant was incapable of the safe operation of a motor vehicle because of the influence of alcohol. Corporal Patterson arrested Appellant and transported her to the booking station of the Cumberland County Prison.

While at the booking station, Corrections Officer, Rodney Gsell, took over the processing of Appellant’s case. Officer Gsell administered a breath test to Appellant, which determined that Appellant’s blood alcohol content (“BAC”) was .117%. Appellant was formally charged with two counts of DUI.

On October 29, 2010, Appellant submitted to a bench trial of those charges. During the trial, the Commonwealth presented the testimony of Officer Gsell. Through Officer Gsell’s testimony, the Commonwealth moved for the admission of the calibration and accuracy logs for the Intox-ilyzer 5000 EN, which is the device that Officer Gsell used to test Appellant’s BAC. Appellant objected to the admission of the calibration logs, claiming that pursuant to 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), admission of the test logs would violate Appellant’s rights under the confrontation clause of the Sixth Amendment of the United States Constitution since Officer Gsell was not the individual who performed the calibration tests of the device. The trial court overruled Appellant’s objection and admitted the calibration logs.

The trial court found Appellant guilty of both counts of DUI, and thereafter sentenced her to 30 days to six months’ incarceration, plus costs and fees. Appellant filed a post-sentence motion, again claiming that admission of the breathalyzer calibration logs, without the testimony of the [106]*106individual performing the calibration, violated her rights under the confrontation clause. The trial court denied that motion and this appeal followed.

Appellant presents one issue for appeal: Did the trial court commit an abuse of discretion and commit an error of law by admitting breath test results into evidence, where the Commonwealth failed to lay a proper foundation for the admissibility of said results insofar as the accuracy and calibration certificate of the breath test machine was introduced, in clear violation of Melendez-Diaz v. Massachusetts [557 U.S. 305], 129 S.Ct. 2527 [174 L.Ed.2d 314] (U.S.2009), and in violation of Appellant’s Sixth Amendment right to confrontation, without the testimony of the lab teehnician(s) who prepared the certificate and performed the testing?

Appellant’s Brief at 6.3

Whether Appellant was denied her 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. Atkinson, 987 A.2d 743, 745 (Pa.Super.2009).

The confrontation clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witness against him.”4 In Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the confrontation clause bars the government from introducing the “testimonial” statements of a witness who does not testify at trial, unless the government shows that the witness is unavailable to testify and that the defendant had a prior opportunity to cross-examine the witness about the hearsay statements.

In Melendez-Diaz, the Supreme Court considered its decision in Crawford and 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. Melendez-Diaz, 129 S.Ct. at 2532. The Supreme Court held that the certificates in question were not typical business records capable of admission through the testimony of a document custodian. Id. at 2538-2540. 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. Id. at 2540 (“Whether or not [the lab tests] qualify as business records, the analysts’ statements here-prepared specifically for use at [defendant’s] trial-were against [defendant], and the analysts were subject to confrontation under the Sixth Amendment.”). Therefore, the records serve as direct “testimony” against the defendant, to which the defendant is entitled to confrontation. See id.

[107]*107Commonwealth v. Barton-Martin, 5 A.3d 363, 368 (Pa.Super.2010). Based upon that reasoning, the Supreme Court in Melendez-Diaz relied upon Crawford to conclude that “[a]bsent 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, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.” Melendez-Diaz, 129 S.Ct. at 2540 (emphasis in original), citing Crawford, 541 U.S. at 54, 124 S.Ct. 1354.

We recently applied the Supreme Court’s holdings in Crawford and Melendez-Diaz to a DUI matter in which the defendant was charged with, among other crimes, DUI highest rate. Barton-Martin, 5 A.3d at 368. There, we explained that:

to be convicted of 75 Pa.C.S.A. § 3802(c) (highest rate), the Commonwealth was required to prove, beyond a reasonable doubt, that [the defendant’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 defendant’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 Appellant’s blood sample.

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Cite This Page — Counsel Stack

Bluebook (online)
33 A.3d 104, 2011 Pa. Super. 245, 2011 Pa. Super. LEXIS 3748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-dyarman-pasuperct-2011.