J. A20012/19
2020 PA Super 175
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JASMIN HAJDAREVIC, : No. 21 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered August 29, 2018,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0000604-2017
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED JULY 28, 2020
Jasmin Hajdarevic appeals from the August 29, 2018 judgment of
sentence entered by the Court of Common Pleas of Franklin County following
his conviction of driving under the influence (“DUI”)—general impairment
(blood alcohol concentration (“BAC”) .08-.10).1 After careful review, we
vacate appellant’s judgment of sentence and remand for a new trial.
The trial court provided the following factual history:
The Commonwealth presented Trooper Eric Stuby, a
Pennsylvania State Trooper assigned to the patrol unit
at the Chambersburg Station. Trooper Stuby
completed standardized field sobriety training as part
of his training at the Pennsylvania State Police
Academy and has since been involved in numerous
[DUI] cases over the past six years.
1 75 Pa.C.S.A. § 3802(a)(2).
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Trooper Stuby was on duty on January 21, 2017.
While driving his marked patrol unit down West King
Street in Shippensburg, Franklin County,
Pennsylvania, Trooper Stuby noticed a passing vehicle
fail to deactivate its high beams. Trooper Stuby
thereafter initiated a traffic stop of the vehicle at
approximately 12:23 a.m. At trial, Trooper Stuby
identified [appellant] as the vehicle’s sole occupant.
During the traffic stop, [appellant] told Trooper Stuby
that he was coming from a friend’s house where he
had consumed several beers. While speaking to
[appellant], Trooper Stuby detected “a moderate odor
of alcoholic beverage” and observed [appellant’s]
bloodshot and glossy eyes.
Trooper Stuby then directed [appellant] to exit the
vehicle. Because [appellant] stated he had issues
with his back, Trooper Stuby directed [appellant] to
perform only the Horizontal Gaze Nystagmus
component of standardized field sobriety testing.
Trooper Stuby subsequently placed [appellant] under
arrest and transported him to Chambersburg Hospital
for a blood draw.
[Appellant’s] blood draw was performed by
Fariana Bermejo, a phlebotomist. Trooper Stuby
observed Ms. Bermejo draw [appellant’s] blood, seal
the sample with yellow evidence tape, and transport
the sample to [the laboratory]. The sample was then
analyzed by Chambersburg Hospital.
The [trial court] next heard the testimony of
Theresa Ritchick, a medical laboratory technician at
Chambersburg Hospital, a certified laboratory.
Ms. Ritchick ha[d] been employed with Chambersburg
Hospital for the past four years and estimated that she
has performed “probably thousands” of blood tests for
blood alcohol content. Ms. Ritchick stated that she
tested [appellant’s] blood sample on January 21,
2017.
The Commonwealth submitted a report generated
using Ms. Ritchick’s test results and sent to the
Pennsylvania State Police in accordance with
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Pennsylvania Department of Health regulations. The
report showed that [appellant’s] sample was collected
by Ms. Bermejo on January 21, 2017, at 12:58 a.m.,
and later tested by Ms. Ritchick. The report indicated
the following test results: a high equivalency value of
0.109, a low equivalency value of 0.089, and a serum
value of 0.120. The report also confirmed that the
seal on the sample was intact. Ms. Ritchick stated
that she was not present when [appellant’s] blood was
drawn.
On cross-examination, Ms. Ritchick explained that the
tubes used to hold the blood sample must be within
their expiration date due to the presence of a gel
inside the tube which separates the serum from the
blood cells. She agreed that expired tubes could
compromise the validity of the testing. Upon review
of laboratory procedures, Ms. Ritchick testified that
the laboratory’s procedures require the testing device
to be calibrated every thirty days. Ms. Ritchick
acknowledged that her documentation stated that
calibration had occurred on December 7, 2016, more
than thirty days before [appellant’s] sample was
tested on January 21, 2017. However, Ms. Ritchick
also testified that the device itself keeps track of when
calibration is required and will block users from
running tests when calibration is needed.
Ms. Ritchick was additionally questioned about the
quality control samples that are run through the
machine every eight hours and the margin of error
allowable in determining whether the device’s reading
is accurate. Ms. Ritchick recognized that expired
quality control samples used to test the calibration of
the machine could affect the validity of subsequent
readings, but stated that nothing indicated the quality
control samples used on or about January 21, 2017,
were expired.
Trial court opinion, 12/4/18 at 2-4 (citations to the record omitted).
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Following a bench trial, the trial court convicted appellant of the
aforementioned offense.2 On August 29, 2018, the trial court sentenced
appellant to 6 months’ intermediate punishment, which included incarceration
for 48 hours and 30 days of electronic and alcohol monitoring. Appellant
timely filed post-sentence motions, which the trial court denied on
December 4, 2018.
Appellant timely filed a notice of appeal. The trial court ordered
appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and appellant timely complied. The trial court
then filed an opinion pursuant to Pa.R.A.P. 1925(a), in which it incorporated
by reference the opinion issued when it denied appellant’s post-sentence
motions.
Appellant raises the following issues for our review:
1. Confrontation Clause Violation. Whether
[appellant’s] right to Confrontation was violated
when Theresa Ritchick was allowed to testify as
to the time of the blood draw when she did not
personally witness said draw[?] More
specifically, whether this is a testimonial
statement that cannot be entered into evidence
via another individuals [sic] representation on a
chain of custody document?
2. Sufficiency of the Evidence. Assuming this
Honorable Court agrees that [appellant’s]
Confrontation rights were violated, whether
there was sufficient evidence to support the
conviction, as the Commonwealth did not
2 The trial court acquitted appellant of DUI-general impairment (incapable of
safely driving). 75 Pa.C.S.A. § 3802(a)(1).
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establish that the blood was drawn within two
hours of operating the vehicle?
3. Weight of the Evidence. Whether the weight
of Ms. Ritchick’s testimony and documentary
evidence was enough to establish a blood
alcohol concentration over the legal limit when
the results of the blood analysis were introduced
into evidence on the basis of her testimony?
Appellant’s brief at 5 (emphasis in original).
In his first issue, appellant argues that his right to confrontation was
violated because “the time of draw was a testimonial factual statement
requiring the testimony of someone who actually witnessed when the blood
was drawn[.]” (Id. at 19.) Specifically, appellant contends that because the
time the blood draw was taken would establish a material factual element of
the offense, he had the right to confront Ms. Burmejo, the phlebotomist who
performed the blood draw. (Id.)
Appellant presents us with a question of law; therefore, “our standard
of review is de novo and our scope of review is plenary.” Commonwealth
v. Milburn, 72 A.3d 617, 618 (Pa.Super. 2013), appeal denied,
87 A.3d 319
(Pa. 2014), quoting Commonwealth v. Dyarman,
33 A.3d 104, 106
(Pa.Super. 2011).
The Sixth Amendment to the United States Constitution provides a
criminal defendant with the right “to be confronted with the witnesses against
him.” U.S. Const. Amend. VI. Specifically, the Supreme Court of the United
States held that the Confrontation Clause protects a criminal defendant’s right
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to confront witnesses bearing testimony against him or her. Crawford v.
Washington, 541 U.S. 36, 51 (2004).3
The Crawford Court defined the statements covered by the
Confrontation Clause as follows:
Various formulations of this core class of testimonial
statements exist: ex parte in-court testimony or its
functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony
that the defendant was unable to cross-examine, or
similar pretrial statements that declarants would
reasonably expect to used prosecutorially,
extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions,
prior testimony, or confessions; statements that were
made under circumstances which would lead an
objective witness reasonably to believe that the
statement would be available for use at a later trial[.]
Crawford, 541 U.S. at 51-52 (internal citations and quotation marks
omitted).
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009), the
Supreme Court determined that certificates of forensic analysis are within the
“core class of testimonial statements” described by the Crawford Court. The
Court ultimately held that the individuals who performed the forensic analyses
were witnesses for the purposes of the Sixth Amendment, and thus the
3 Although appellant’s analysis focuses on Sixth Amendment jurisprudence,
the Pennsylvania Constitution provides the same protection as the United
States Constitution under the Confrontation Clause. Commonwealth v.
Geiger,
944 A.2d 85, 97 n.6 (Pa.Super. 2008), appeal denied,
964 A.2d 1
(Pa. 2009), citing Pa. Const. Article I, § 9; Maryland v. Craig,
497 U.S. 836
(1990).
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defendant “was entitled ‘to be confronted with’ [them] at trial.” Id. at 311,
citing Crawford, 541 U.S. at 54 (internal quotation marks omitted).
Following the High Court’s announcement of Melendez-Diaz, this court
considered Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa.Super.
2010), appeal denied,
30 A.3d 486 (Pa. 2011). In Barton-Martin, the
defendant was convicted of DUI-highest rate, which is a conviction that
requires the admission of BAC into evidence. Id. at 366, 370. In an effort to
meet that evidentiary requirement, the Commonwealth called the custodian
of records from Hanover Hospital and introduced the defendant’s BAC report
as a business record. Id. at 368. The Commonwealth did not call the
laboratory technician who performed the test on the defendant’s blood sample
to testify. Id. This court held that the admission of appellant’s BAC report
through the custodian of records’ testimony violated the defendant’s right to
confrontation, absent any evidence that the laboratory technician was
unavailable for trial and the defendant had a prior opportunity to conduct
cross-examination. Id. at 369.
Shortly after Barton-Martin was decided, the Supreme Court of the
United States announced its decision in Bullcoming v. New Mexico, 564
U.S. 647 (2011). In Bullcoming, the defendant was charged with driving
while intoxicated and stood trial.
Id. at 651. At trial, the prosecution sought
to introduce a BAC report reflecting that the defendant’s BAC was above the
legal limit.
Id. Instead of calling the analyst who signed the certification of
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the BAC report to testify at trial, the prosecution called another analyst from
the same laboratory who was familiar with laboratory procedures. Id.
The High Court granted certiorari to determine whether the
Confrontation Clause:
permit[s] the prosecution to introduce a forensic
laboratory report containing a testimonial
certification, made in order to prove a fact at a
criminal trial, through the in-court testimony of an
analyst who did not sign the certification or personally
perform or observe the performance of the test
reported in the certification.
Id. at 657 (citation omitted). Ultimately, the Court disapproved of the type
of “surrogate testimony” permitted by the trial court in Bullcoming because
the surrogate witness could not “convey what the [analyst] performing the
test knew or observed about the events [her] certification concerned, i.e., the
particular test and testing process [she] employed.”
Id. at 661 (footnote
omitted).
Clearly, in this case, the technician, Ms. Ritchick, who performed the
test of appellant’s blood, did properly testify in line with Crawford and its
progeny. However, in order to fully address appellant’s Confrontation Clause
claim, we must first determine whether the time of the blood draw constitutes
a part of the core class of testimonial statements defined by the Crawford
Court. Appellant argues that the time of the blood draw is a testimonial factual
statement because that information was “offered to establish a different
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material factual element of the offense,” compared to the results of the BAC
report. (Appellant’s brief at 19.)
Similar to Barton-Martin, appellant was charged in the instant case
with an offense that, in order to obtain a conviction, requires the admission of
blood alcohol concentration into evidence. See Barton-Martin, 5 A.3d at
370. Indeed, Section 3802 of the Motor Vehicles Code provides, in relevant
part:
(2) An individual may not drive, operate or be in
physical control of the movement of a vehicle
after imbibing a sufficient amount of alcohol
such that the alcohol concentration in the
individual’s blood or breath is at least 0.08% but
less than 0.10% within two hours after the
individual has driven, operated or been in actual
physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(2) (emphasis added).
The plain language of the statute at issue here reveals that the time of
the blood draw is an element that must be proven by the Commonwealth
beyond a reasonable doubt. Put another way, the time of the blood draw is a
testimonial statement pertaining to a fact of a criminal case, in a manner
similar to certificates of forensic analysis. See Melendez-Diaz, 557 U.S. at
310. Therefore, we find that the time of the blood draw constitutes a part of
the core class of testimonial statements defined by the Crawford Court.
The Commonwealth, relying on our decision in Commonwealth v.
Shaffer, 40 A.3d 1250 (Pa.Super. 2012), contends that phlebotomists’
involvement in DUI cases is limited to the chain of custody of blood evidence;
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therefore, any testimony they may offer does not fall within the confines of
the Confrontation Clause. (Commonwealth’s brief at 16-17.)
In Shaffer, this court held that the Commonwealth’s failure to call the
phlebotomist who drew the defendant’s blood did not violate the defendant’s
rights under the Confrontation Clause. Shaffer, 40 A.3d at 1252. The court
noted that Melendez-Diaz did not hold, “that anyone whose testimony may
be relevant in establishing chain of custody, authenticity of a sample, or
accuracy of a testing device must appear in person as part of the prosecution’s
case.”
Id. at 1252-1253, quoting Melendez-Diaz,
557 U.S. at 311 n.1. The
Shaffer court further noted that the defendant “had ample opportunity to
effectively cross-examine [and] confront both witnesses presented against
him by the Commonwealth.” Shaffer,
40 A.3d at 1253.
This case, however, is distinguishable from Shaffer. In Shaffer, the
arresting police officer testified as to the time of the blood draw. Id. at 1252.
Here, the Commonwealth elicited the following testimony from Trooper Stuby
pertaining to appellant’s blood draw:
Q. Now, based on your training and experience, did
you determine whether or not you believed
[appellant] could operate a motor vehicle safely
due to his level of impairment?
A. Yes.
Q. And what did you do as a result of forming that
opinion?
A. Placed [appellant] under arrest for driving under
the influence.
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Q. What was the next step, Trooper?
A. I transported [appellant] to the Chambersburg
Hospital for a blood draw.
Q. Did you observe [appellant’s] blood being
taken?
A. Yes.
Q. Do you know who drew his blood?
A. It was a phlebotomist Fariana --
....
Q. Do you recall what she did with the -- do you
recall what she did after drawing the blood?
A. She sealed it with yellow evidence tape.
Q. And then what did she do with the tube then?
A. Transported that back to her lab.
Q. And you witnessed her do all this?
A. I watched her walk back the hallway, yes.
Q. And as a result, that blood was analyzed by the
Chambersburg Hospital?
A. Yes, sir.
Q. And you filed charges in this case because the
BAC was over .08?
A. Yes, sir.
[The Commonwealth]: I don’t think I have any other
questions, Your Honor.
Notes of testimony, 7/6/18 at 8-10.
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For the purposes of the Confrontation Clause, the only evidence of the
time of the blood draw introduced at trial was from Theresa Ritchick, the
laboratory technician called by the Commonwealth to testify about the results
of appellant’s BAC test. (Id. at 28.) Ms. Ritchick was not present when
appellant’s blood was drawn. (Id. at 29.) Put another way, when testifying
as to the time of the blood draw, which was noted on the tube containing
appellant’s blood, Ms. Ritchick is tantamount to a surrogate witness, as she
neither performed nor observed appellant’s blood draw. Pursuant to the
Supreme Court’s holding in Bullcoming, we find that appellant’s right to be
confronted with the witnesses against him as guaranteed by the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution was violated in this case. See Bullcoming, 564
U.S. at 661. We, therefore, vacate appellant’s judgment of sentence and
remand for a new trial.4 Discussion of appellant’s remaining issues is not
necessary, as the issues are now moot.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
4 We caution that our holding does not require phlebotomists to testify as to
the time of a blood draw in every DUI case in which blood alcohol
concentration evidence is at issue. As noted supra, the arresting police officer
in Shaffer testified as to the time of the blood draw, thereby preserving the
defendant’s rights to be confronted by the witnesses against him. See
Shaffer, 40 A.3d at 1252.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/28/2020
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