Commonwealth v. Sally

20 Pa. D. & C.5th 428
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJanuary 18, 2011
Docketno. MC-51-CR-0032706-2009
StatusPublished

This text of 20 Pa. D. & C.5th 428 (Commonwealth v. Sally) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Sally, 20 Pa. D. & C.5th 428 (Pa. Super. Ct. 2011).

Opinion

MOSS, J.,

The defendants in the above-captioned actions were charged with driving under the influence of controlled substances in violation of 75 Pa. C.S. § 3802(d)(1) and (2). Following their arrests, the defendants had blood extracted from them. The blood was analyzed at a laboratory by the name of DrugScan that used gas chromatography and mass spectrometry. Dr. Richard [430]*430Cohn, a forensic toxicologist employed by DrugScan, issued two two-page reports that included findings that Mr. Walker’s blood contained phencyclidine and that Mr. Sally’s blood contained marijuana.

The reports were provided to defense counsel as part of discovery. Prior to trial, defense counsel advised the court that they intended to object to Dr. Cohn’s trial testimony. Defense counsel argue that permitting Dr. Cohn to testify without having other persons present at trial who were involved in the analysis of their clients’blood would be a violation of their clients’ Sixth Amendment right to be confronted with the witnesses against them. In support of their argument, they rely on Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super 2010). The commonwealth confirmed that it intended to call Dr. Cohn as an expert at trial without calling any of the other persons from DrugScan who were involved with the defendants’ blood samples. The commonwealth asserted that doing so would not violate the defendants’ right to confrontation.

The court decided to treat the proposed objections as in limine motions by the defendants. See United States v. Turner, 591 F.3d 928 (7th Cir. 2000). The court requested that a factual record be made of the manner and procedures used to analyze the defendants’ blood. Additionally, the court directed the commonwealth to produce additional documents that were not included as part of Dr. Cohn’s reports but which were related to the analysis of the [431]*431defendants’ blood. These additional documents included the three pages of data and graphs produced by the gas chromatography / mass spectrometry machine.

This court must decide two questions. First, when applied to the present cases, do the holdings in Melendez-Diaz and Barton-Martin mandate that the commonwealth call witnesses other than Dr. Cohn to testify at trial? Second, does Dr. Cohn’s proposed testimony contain any testimonial hearsay?

I. Factual Background

At the hearing, the only witness who testified was Dr. Cohn. The parties agreed that Dr. Cohn was qualified as a forensic toxicologist. (N.T. at 15) Dr. Cohn explained that he was employed by DrugScan and that his primary function as a forensic toxicologist is to use his expertise with respect to specimens submitted by law enforcement agencies in Philadelphia, its surrounding counties and throughout the United States. (N.T. at 58-59)

Dr. Cohn described the procedure that DrugScan uses to analyze blood samples. These procedures involve a minimum of five to six DrugScan employees having access to or handling a blood sample. (N.T. at 96) He explained that blood samples come to DrugScan from the police with property receipts in two tubes, one with a gray top and the other with a red top. (N.T. at 17, 20) The tube with the red top contains no preservative and the tube with the gray top contains preservative used to prevent the blood from clotting. (N.T. at 82-83) Those tubes travel to the accession department where they are assigned an [432]*432accession number. (N.T. at 20-21, 36) The name of the person from whom the sample was taken, therefore, is unknown to those involved at DrugScan with the analysis of the sample. (N.T. at 21) The sample then undergoes a series of initial screening tests which are referred to in Dr. Cohn’s report and “immunochemical assay.” During his testimony, Dr. Cohn described the tests as being “exquisite and beautiful” but providing only an indication of what substances may or may not be in the blood sample. (N.T. at 22, 37-38)

After the initial screening tests, the blood samples travel to another person who adds one of several stock solutions to the blood sample depending on the results of the initial screening tests. (N.T. at 38) There is an established protocol for adding the stock solution that does not provide for any discretion on the part of the person who adds the stock solution. (N.T. at 38) The blood sample with the added stock solution is then placed in the machine that performs gas chromatography and mass spectrometry. (N.T. at 23, 39) Although the machine runs overnight with many mixtures, each mixture runs through the machine for between 13 and 20 minutes. (N.T. at 39)

Dr. Cohn testified that laboratory technicians and technologists handle the blood samples from the time they are delivered to DrugScan until the time that they are put into the gas chromatography and mass spectrometry machine. (N.T. at 46) A laboratory technician is required to have a bachelor’s degree in one of the physical or biological sciences. (N.T. at 47) A laboratory technologist has either [433]*433a higher academic degree or more job experience. (N.T. at 48) Laboratory technicians and technologists perform their work in conformance with procedures and protocols developed by forensic toxicologists. (N.T. at 60) They do not generate any opinions that Dr. Cohn uses to develop his report and opinions. (N.T. at 48-49)

The gas chromatography / mass spectrometry machine produces printouts in the form of graphs and charts. It is this data that Dr. Cohn uses to form his opinion regarding what, if any, controlled substances and alcohol are contained in the blood samples. (N.T. 50-51) The reports authored by Dr. Cohn with respect to the defendants in this case, the data produced by the gas chromatography and mass spectrometry machine for the defendants in this case, and other DrugScan documents related to the defendants in this case were introduced into evidence at the hearing. Dr. Cohn explained the general procedure that he used to analyze each of the defendant’s blood samples.

The form of Dr. Cohn’s reports is the same. They both are signed by Dr. Cohn and contain sections with headings titled “toxicology report in the case of,” “examination,” “specimens,” “findings,” “comments,” “conclusions,” and “analysis summary.” With respect to Mr. Sally, the findings and conclusion sections provided the following:

FINDINGS:
CANNABINOIDS (Marijuana) -
10.4 nanograms Delta-9-THC (Marijuana constitutent)/mL SERUM 214 nanograms [434]*4349-Carboxy-THC (Marijuana metabolite)/mL SERUM
Cannabinoids were detected by immunochemical assay, and were identified, confirmed and measured by gas chromatography/mass spectrometry.
***
CONCLUSION:
At and around the time the blood was drawn, it is reasonably scientifically certain that this individual was a recent, active user of the Schedule I hallucinogenic/ depressant agent MARIJUANA.

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Related

United States v. Lamons
532 F.3d 1251 (Eleventh Circuit, 2008)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Melendez-Diaz v. Massachusetts
557 U.S. 305 (Supreme Court, 2009)
United States v. Hamilton
413 F.3d 1138 (Tenth Circuit, 2005)
United States v. Angela Khorozian
333 F.3d 498 (Third Circuit, 2003)
United States v. Blazier
69 M.J. 218 (Court of Appeals for the Armed Forces, 2010)
State v. Bullcoming
2010 NMSC 007 (New Mexico Supreme Court, 2010)
United States v. Johnson
587 F.3d 625 (Fourth Circuit, 2009)
United States v. Moon
512 F.3d 359 (Seventh Circuit, 2008)
United States v. Turner
591 F.3d 928 (Seventh Circuit, 2010)
Commonwealth v. Barton-Martin
5 A.3d 363 (Superior Court of Pennsylvania, 2010)
State v. Dilboy
160 N.H. 135 (Supreme Court of New Hampshire, 2010)
United States v. Washington
498 F.3d 225 (Fourth Circuit, 2007)

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Bluebook (online)
20 Pa. D. & C.5th 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sally-pactcomplphilad-2011.