Com. v. Barton-Martin

• Decision Date: 19 November 2010
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jennifer Ann BARTON-MARTIN, Appellant.
• Court: Pennsylvania Superior Court

5 A.3d 363

COMMONWEALTH of Pennsylvania, Appellee

v.Jennifer Ann BARTON-MARTIN, Appellant.

Superior Court of Pennsylvania.

Argued June 9, 2010.

Filed Sept. 8, 2010.

Reargument Denied Nov. 19, 2010.

Alicia A. Genther, Harrisburg, for appellant.

James Zamtobwicz, Asst. Dist. Atty., York, for Com., appellee.

BEFORE: MUSMANNO, LAZARUS and OLSON, JJ.

OPINION BY OLSON, J.

Appellant, Jennifer Ann Barton-Martin, appeals from the judgment of sentence entered on January 26, 2009, as made final when Appellant's post-sentence motions were deemed denied by operation of law, sentencing her for convictions on two counts of driving under the influence, 75 Pa.C.S.A. § 3802(a)(1) (general impairment) ¹ and 75 Pa.C.S.A. § 3802(c) (highest rate).² Among other claims raised on appeal, Appellant challenges the admission of blood-alcohol test results offered to establish her guilt under § 3802(c) based on the recent United States Supreme Court decision in Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In Melendez-Diaz, the Court held that lab reports admitted to establish a defendant's guilt constituted testimonial statements covered by the Confrontation Clause of the United States Constitution and that such reports were inadmissible unless the defendant had the opportunity to cross-examine the lab analyst at trial.

Because the Commonwealth did not summon at trial the analyst who prepared Appellant's lab report, we conclude that Appellant's rights under the Confrontation Clause were violated and that the lab report showing her blood-alcohol content was inadmissible. Without that evidence, Appellant's conviction under § 3802(c) cannot stand and we therefore vacate her judgment of sentence as to that offense. Appellant has not raised a meritorious challenge to her conviction under § 3802(a) and we affirm her judgment of sentence with respect to that charge. We remand this matter so that the trial court may, in the exercise of its sound discretion, reconsider its sentence in light of these determinations.

The record reflects the following factual and procedural history. On January 3, 2008, Officer Jedadiah Shearer of the Penn Township Police Department observed a vehicle run a red light. Thereafter, Officer Shearer followed the vehicle and observed it speeding and weaving within the lane. Approximately one half-mile later, Officer Shearer activated his overhead lights and executed a traffic stop of the vehicle. Officer Shearer identified Appellant as the driver. While speaking with Appellant, Officer Shearer smelled alcohol on her breath, noticed that her speech was slurred, and observed that she had glassy eyes. Appellant admitted to Officer Shearer that prior to driving she had consumed two alcoholic drinks at the Franklin House in Hanover.

After speaking with Appellant, Officer Shearer asked her to exit the vehicle to perform a number of field sobriety tests. Those tests included the Horizontal Gaze Nystagmus, the Walk and Turn, and the One Leg Stand. Appellant also agreed to submit to a Preliminary Breath Test. Appellant failed all of the field sobriety tests. Consequently, Officer Shearer determined that she was incapable of safely operating a motor vehicle. Appellant was arrested and transported to Hanover Hospital for a legal blood draw.

At approximately 1:20 a.m., Hanover Hospital laboratory phlebotomist, Deb Messersmith, drew Appellant's blood. The sample was later tested at the hospital by technologist Tracy Stewart. According to records from the hospital, the sample produced a blood alcohol content ("BAC") of .209%.

On February 6, 2008, Appellant waived a preliminary hearing in this matter. Formal arraignment occurred on June 5, 2008, and a bench trial occurred on November 25, 2008. Immediately prior to trial, Appellant's counsel orally moved the court to consider Appellant for acceptance into the Accelerated Rehabilitative Disposition ("ARD") program. The Commonwealth opposed the motion, stating that no application for ARD had been submitted. The trial court denied the motion and proceeded with trial.

At trial, Officer Shearer testified to the above facts and opined that, based on his education, training, and experience with drunk drivers, his observations of Appellant led him to conclude that she was intoxicated and could not safely operate a motor vehicle. The Commonwealth also presented the testimony of Michelle Lee, laboratory administrative director and custodian of records at Hanover Hospital. Ms. Lee's testimony was proffered to lay the foundation for admitting the report summarizing Appellant's blood test on the night in question. Ms. Lee testified to the chain of custody of the records in the lab, the equipment used for the testing, and the procedures for the test. Ms. Lee testified that the methods used by the lab are prescribed by the Pennsylvania Department of Health. Based upon Ms. Lee's testimony, the Commonwealth moved for the admission of Appellant's BAC test results into evidence. Appellant's counsel objected. The trial court overruled the objection and admitted the evidence.

On cross-examination, Ms. Lee admitted that, despite her knowledge regarding procedures in the lab, she was not the technologist who analyzed Appellant's blood. Rather, Ms. Lee explained that Tracy Stewart, under her supervision, had performed the test. The Commonwealth did not call Ms. Stewart to testify in its case-in-chief. Rather, Ms. Stewart was called by Appellant to provide additional testimony regarding the procedures and protocols used to test Appellant's blood alcohol content.

The trial court found Appellant guilty under §§ 3802(a)(1) and 3802(c) and sentenced her on January 26, 2009. Appellant filed post-sentence motions challenging, inter alia, the issues that she now raises on appeal. The trial court did not rule on Appellant's post-sentence motions within 120 days. Therefore, the post-sentence motions were deemed denied by operation of law. Pa.R.Crim.P. 720(B)(3)(a). This timely appeal followed.

Appellant presents four issues on appeal:

1. Whether the trial court abused its discretion in denying the [Appellant's] motion for admission into the [ARD] program?

2. Whether the [Appellant] was denied her constitutionally protected and guaranteed right to confront any witness brought against her.

3. Whether the record as developed by the Commonwealth during its case-in-chief was insufficient as a matter of law to allow into evidence the Blood Alcohol Content (BAC), as the test introduced by the Commonwealth was not declared to have been performed on other than whole blood, it was in fact not performed on whole blood, no conversion factor was identified and the conversion factor, even if declared and used, was not provento be reliable in the scientific community.

4. Whether the trial court abused its discretion in permitting the admission of the [Appellant's] BAC level into evidence, as the Commonwealth failed to lay the proper foundation required for admission.

Appellant's Brief at 4.³

For Appellant's first issue she challenges the trial court's denial of her motion for admission into ARD. Appellant's Brief at 26-29. According to Appellant, she was denied the opportunity to apply for ARD and therefore, the trial court abused its discretion by not sua sponte compelling her entry into the program. Id. at 26. In support of that argument Appellant relies on Commonwealth v. Fleming, 955 A.2d 450 (Pa.Super.2008), claiming that where the criteria for admission into ARD is "wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person's success in rehabilitation," an abuse of discretion is present. Appellant's Brief at 26 (emphasis removed), citing Fleming, 955 A.2d at 453.

This case, however, is distinguishable from Fleming. Specifically, the whole quotation from Fleming and relied upon by Appellant states that:

absent an abuse of that discretion involving some criteria wholly, patently and without doubt unrelated to the protection of society and/or likelihood of a person's success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the district attorney is free to make his decision based upon what is most beneficial to society and the offender.

Fleming, 955 A.2d at 453 (emphasis added). Therefore, while Appellant attempts to rely upon gratuitous language from Fleming, that language, taken in context, grants the district attorney wide discretion to admit or deny entry into the ARD program. Id. Under Fleming, the district attorney may consider whatever is most beneficial to society and the offender; the prosecution is barred only from considering impermissible criteria, such as race, religion, or other obviously prohibited factors. Id. In this case, Appellant presents no argument that her exclusion from ARD was based upon a factor such as her race, religion, "or other such obviously prohibited consideration[ ]." Thus, Appellant has not established that the district attorney abused his discretion in denying Appellant's admission to the ARD program.

The fact that the district attorney did not abuse his discretion is underscored by the fact that Appellant never even applied for admission into the ARD program.⁴ Therefore, there was no denial of an applicationproperly presented to the trial court. It was not for the court to speculate on the contents of that application and/or what the District Attorney's reaction to it would have been; absent a timely filed application, as was submitted in Fleming, it was not an abuse of discretion for the trial court to deny Appellant's admission into the program. Appellant's first issue on appeal lacks merit.

Turning now to Appellant's second issue, Appellant alleges that admission of the results of her BAC test violated her right of confrontation under the Sixth Amendment to the United States Constitution. Appellant's Brief at 13-17. In support of that argument, Appellant relies on the...