A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose
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The Superior Court of Pennsylvania has decided the matter of COMMONWEALTH of Pennsylvania, Appellant v. George William YOHE, II, Appellee, 2012 WL 503517, 2012 PA Super 34, 315 MDA 2011 (Feb. 16, 2012). This was an appeal from the Court of Common Pleas of York County, Criminal Division, CP–67–CR–0007492–2009. The case was before Judges PANELLA, MUNDY, AND FITZGERALD.

The Appellee was charged with two counts of DUI under 75 Pa.C.S.A. § 3802(a)(1) and(b). At trial, the Commonwealth presented the testimony of Dr. Lee Blum, a toxicologist and assistant laboratory director at National Medical Services where Appellee’s blood sample was analyzed. Appellee objected to Dr. Blum’s testimony regarding the report of the analysis of Appellee’s blood alcohol level and later to the admission of that toxicology report on the grounds it violated his right to confrontation guaranteed under the 6th amendment of the U.S. Constitution. The trial court, Judge Michael Bortner, granted Yohe’s post sentence motion for a new trial on this basis and the DA appealed.

Judge Mundy wrote for the Panel that Dr. Blum was an appropriate witness to satisfy Appellee’s right of confrontation under the Sixth Amendment to the United States Constitution and reversed the trial court’s order.

Appellee’s blood sample was sent to NMS labs for analysis. Dr. Blum testified that in his role as a forensic toxicologist at NMS Labs he performs case assignments, case evaluations, reviews of analytic testing, writing of reports, and court testimony. Dr. Blum reviewed the raw data from the analysis machines, compared the three BAC results, and verified the correctness of the procedures as logged by the technicians. Based on his analysis of these materials, Dr. Blum certified the results as reflected in the report he signed. Dr. Blum acknowledged that he did not personally handle or observe the testing that was performed. Dr. Blum did not handle Appellee’s blood sample, prepare portions for testing, place the prepared portions in the testing machines, or retrieve the portions after testing.

Appellee argued, in his motion for new trial, that the blood-alcohol analysis report was a testimonial statement and that Dr. Blum’s testimony could not satisfy his right to confrontation relative to that report because Dr. Blum had not personally conducted the testing.

On appeal, the issue was whether the Confrontation Clause is satisfied by the testimony of a witness who certifies blood-alcohol test results and signs the report of those results but did not observe, prepare or conduct the actual testing procedures. However, Dr. Blum did review the entire file, compare the results of the three independent test printouts on the three aliquots, certify the accuracy of the results, and sign the report. Accordingly, Dr. Blum was the analyst who prepared the certificate in anticipation for use at Appellee’s trial. Although Dr. Blum did not personally handle the defendant’s blood sample, prepare the aliquots, or physically place the aliquots in the testing apparatuses, he did certify the results of the testing and author the report sought to be admitted as evidence against Appellee. This distinction was dispositive of the issue, as Dr. Blum’s certification was based on a true analysis and not merely a parroting of a prior analysis supplied by another individual.

Therefore, Judge Mundy concluded that the trial court had erred as a matter of law when it determined that the blood-alcohol report of the blood sample taken from Appellee was inadmissible on the ground that Appellee was not afforded his right to confront the source of the testimonial statement through the testimony and cross-examination of Dr. Blum.

Note: I had no idea what an aliquot was. It is “an extracted portion of the original sample upon which the testing is performed.”

Counsel for the Appellee was Shawn Michael Doward of the McShane Firm, LLC of Harrisburg, PA.


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