J-S53016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MATTHIAS JOHN JOHNSON,

                        Appellant                 No. 1915 WDA 2013


           Appeal from the Judgment of Sentence August 22, 2013
               In the Court of Common Pleas of Butler County
            Criminal Division at No(s): CP-10-CR-0001183-2012


BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                     FILED SEPTEMBER 23, 2014

     Appellant, Mathias John Johnson, appeals from the judgment of

sentence entered on August 22, 2013 in the Criminal Division of the Court of

Common Pleas of Butler County. We affirm.

     The factual history and procedural background in this case are not in

dispute.   On January 26, 2012, Appellant was involved in a motor vehicle



the Butler City Police Department arrived at the scene and noticed that

Appellant displayed signs of intoxication, including but not limited to

emission of an odor of marijuana.    Officer Rensel placed Appellant under

arrest for suspicion of driving under the influence and arranged to have

A

consented to a legal blood draw at Butler Memorial Hospital and NMS Labs



*Retired Senior Judge assigned to the Superior Court.
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                                                     d.1

       On    September      24,   2012,        the    Commonwealth   filed    a   criminal

information charging Appellant with two counts of driving under the

                                           3802(d)(2) and one count of required

financial responsibility, 75 Pa.C.S.A. § 1786(f), a summary offense.2

Appellant did not file pre-trial motions and, after several continuances,

proceeded to a non-jury trial.

                                                           -jury trial on July 1, 2013.

                                                                             t results into



assistant laboratory director and forensic toxicologist. As the trial court

described:

       [Dr. Barbieri] testified at trial that although he did not perform
       the testing, he did review all of the data, put the report together
       and signed it. No other technician or toxicologist signed the
       report.   At trial, Dr. Barbieri provided extensive testimony
       regarding the results and conclusions he reached after analyzing
       the data. He concluded, based upon his training and experience,


       motor vehicle.       The toxicology report was submitted by the
____________________________________________


1
  Specifically, the tests showed the presence of marijuana, benzodiazepines
(lorazepam and clonazepam), and methadone
7/1/13, at 5.
2

Trial Court Order, 7/2/13.



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        Commonwea


Trial Court Order, 11/12/13, at 1-2.

        At the conclusion of trial, the court issued its verdict finding Appellant

guilty of one count each of DUI and required financial responsibility.

Thereafter, on August 22, 2013, the court sentenced Appellant to 72 hours



DUI offender. The court also ordered Appellant to pay a fine for his financial

responsibility conviction.

        On August 30, 2013, Appellant timely filed a post-sentence motion for

judgment of acquittal.3 The motion alleged that admission of the NMS report



evide

through a laboratory supervisor who was not the laboratory technician who

                                                            -Sentence Motion for

Judgment of Acquittal, 8/30/13, at




____________________________________________


3
  This was the first time Appellant raised any objection to the NMS lab
report. As the trial court noted, counsel for Appellant indicated he had no

See N.T., 7/1/13, at 14.




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motion, the court entered an order that denied relief.       Trial Court Order,

11/12/13. This timely appeal ensued.4

       In the sole issue he raises on appeal, Appellant claims that the trial

court abused its discretion or erred as a matter of law in denying his

post-sentence motion for judgment of acquittal.         In particular, Appellant

alleges that the admission of his toxicology report through Dr. Barbieri

violated his confrontation clause rights because Dr. Barbieri was not the




                             Id. at 15. According to Appellant, Dr. Barbieri did



                   Id. at 14. In the absence of independent verification of the

                                                           odstream, Appellant



so as to surmount a confrontation clause challenge. Thus, Appellant asserts

that Dr. Barbieri offered only surrogate testimony of the type which was
____________________________________________


4
   By order entered on December 20, 2013, the trial court directed Appellant
to file, within 21 days, a concise statement of errors complained of on
appeal pursuant to Pa.R.a.P. 1925(b). Appellant preserved the issue he now
raises on appeal by incorporating his claim within a timely concise statement
filed on January 15, 2014. On March 12, 2014, the trial court issued a

the order docketed on November 12, 2013 as the place within the record
where the reasons for the challenged determination could be found.



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deemed unconstitutional by the United States Supreme court in Bullcoming

v. New Mexico, 131 S.Ct. 2705 (U.S. 2011).



rights under the [c]onfrontation [c]lause is a question of law, for which our

standard of review is de novo

Commonwealth v. Yohe, 79 A.3d 520, 530 (Pa. 2013). The confrontation

clause   of   the     Sixth   Amendment        to   the   United   States   Constitution



                  5
                      Id.

defined] as a solemn declaration or affirmation made for the purpose of

                                                    Id. (case citation and internal

quotations omitted). Under the Sixth Amendment, the Commonwealth may

                      -of-court testimonial statements by a witness unless the

witness is unavailable and the defendant had a prior opportunity for cross-

                  Id.



purposes of confrontation clause analysis.                Id. at 537.   Therefore, the

analyst who generates such a report must testify at trial and Appellant is

entitled to confront the witness. See id. at 537-538. Appellant claims he

____________________________________________


5
  Article I, Section 9 of the Pennsylvania Constitution offers similar
protection and allows an accused to confront the witnesses against him.



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was deprived of this opportunity because Dr. Barbieri, the witness called by

the Commonwealth to discuss his toxicology report at trial, did not




      Our Supreme Court recently rejected a virtually identical claim in

Yohe. There, the Supreme Court held that a forensic analyst who reviewed

the underlying data and prepared and signed the challenged report

                                                                      Id. at

540. In reaching its conclusion, the Court reasoned:

     Although Dr. Blum did not handle [a]ppellant's blood sample,
     prepare portions for testing, place the prepared portions in the
     machines, or retrieve the portions after testing, these facts are
     not dispositive, and do not account for Dr. Blum's involvement in
     utilizing the information provided by his subordinates,
     legitimately relying on their work and that of other employees in
     the lab who logged receipt of the sample, checked the integrity
     of the sample, ensured proper storage, and of the phlebotomist
     who drew [a]ppellant's blood at the hospital.                 The
     Commonwealth         complied     with      [Melendez Diaz     v.
     Massachusetts, 557 U.S. 305 (2009)] by introducing the
     Toxicology Report with a witness competent to testify to the
     truth of the statements made in the report, and complied with
     Bullcoming by assuring [a]ppellant's right to be confronted with
     the in-court testimony of the scientist who evaluated the raw
     data in the case file and signed the certification.

Yohe at 540-541.

     We find these dispositive factors supporting admission to be present in

the instant case.   Dr. Barbieri was the assistant director and forensic

toxicologist at NMS.   Although he conceded that he did not personally

perform toxicology tests, he testified that he reviewed all of the data

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generated   by    other   laboratory   personnel   and   prepared   and   signed




independent assessments regarding the significance of the data recovered

from the tests performed on App                     See id. at 4-14 (reviewing



therapeutic and non-therapeutic uses of those compounds, the significance

of the observed concentrations, the potential interactions between the

drugs, and the potential for impairment resulting from ingestion of the

various drugs).     In sum, Dr. Barbieri did not present mere surrogate



testimony and the introduction of the NMS report through a witness who was

competent to verify its contents, combined with Appellant's opportunity to

confront the scientist who evaluated the raw data and signed the

certification in this case, assure us that the trial court did not run afoul of

the Sixth Amendment herein.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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