Com. v. Banko, D.

J-S26002-21
2022 PA Super 5COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DYLAN RAY BANKO
Appellant No. 1564 MDA 2020
Appeal from the Judgment of Sentence entered November 25, 2020
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0000352-2018
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED: JANUARY 5, 2022
Appellant, Dylan Ray Banko, appeals from the judgment of sentence
imposed on November 25, 2020 in the Court of Common Pleas of Dauphin
County following his conviction of various charges, including driving under the
influence (“DUI”). The charges stemmed from a series of events that
culminated in motor vehicle accident on October 19, 2017, following which
Appellant was transported to Hershey Medical Center for treatment. Appellant
contends the trial court violated his Sixth Amendment right of confrontation
when it permitted testimony from Hershey Medical Center laboratory
supervisor Monica Straub regarding blood alcohol content (“BAC”) results
generated in the course of Appellant’s hospital treatment. Following review,
we affirm.
J-S26002-21
As the trial court explained in its Rule 1925(a) opinion, following a
September 2020 trial, Appellant was found guilty by a jury of aggravated
assault by vehicle while DUI, accidents involving death or personal injury,
DUI: highest rate of alcohol—first offense, and DUI: general
impairment/incapable of safe driving.1 The court found Appellant guilty of one
count each of reckless driving and driving the wrong way.2 Following
completion of a pre-sentence investigation, the trial court sentenced Appellant
on November 25, 2020 to an aggregate term of ten to twenty-three months
in the Dauphin County Prison followed by three years of county probation.
Rule 1925(a) Opinion, 11/15/21, at 2. This timely appeal followed. Appellant
filed a Rule 1925(b) statement raising a sufficiency of evidence claim and a
Confrontation Clause issue. The trial court initially issued a statement in lieu
of a Rule 1925(a) opinion, finding all issues waived for failure to request and
file trial transcripts.
Appellant filed a brief with this Court and a reproduced record that
included the trial transcripts. In his brief, Appellant reiterated his
Confrontation Clause claim and indicated he was abandoning his sufficiency
claim. Appellant’s Brief at 6, n.2. He requested that we provide the trial court
the opportunity to file an amended Rule 1925(a) opinion, recognizing the trial
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1 75 Pa.C.S.A. §§ 3735.1(a), 3742(a), 3802(b), and 3802(a)(1), respectively.
2 75 Pa.C.S.A. §§ 3735(a) and 3308)(b), respectively.
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transcripts were included in his reproduced record. The Commonwealth filed
a brief, joining in the request for a remand and issuance of a Rule 1925(a)
opinion.
By judgment order entered October 14, 2021, we remanded the case,
instructing Appellant to make the transcripts part of the certified record so we
may consider them on appeal (citing Commonwealth v. Brown, 161 A.3d
960, 968 (Pa. Super. 2017)), and instructing the trial court to issue a Rule
1925(a) opinion addressing Appellant’s confrontation issue only. The
transcripts are now a part of our certified record and the trial court issued its
Rule 1925(a) Opinion on November 15, 2021. We now consider Appellant’s
Confrontation Clause issue, which he phrased as follows:
Confrontation Clause Violation. Whether testimony of the
Laboratory Supervisor satisfied the Confrontation Clause when the
supervisor did not perform or observe the BAC test.
Appellant’s Brief at 6.
As this Court stated in Commonwealth v. Yohe, 79 A.3d 520 (Pa.
2013), “Whether the admission of [a] toxicology report violated appellant’s
rights under the Confrontation Clause is a question of law, for which our
standard of review is de novo and our scope of review is plenary.” Id. at 530
(citation and some capitalization omitted). In Yohe, the Court looked to
decisions from the United States Supreme Court recognizing that the
Confrontation Clause of the Sixth Amendment is “made applicable to the
States via the Fourth Amendment” and provides that “[i]n all criminal
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prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him[.]” Id. at 530-31 (quoting Pointer v. Texas, 380 U.S.
400 (1965)). Citing Crawford v. Washington, 541 U.S. 36 (2004), the Court
explained that the Confrontation Clause “prohibits out-of-court testimonial
statements by a witness unless the witness is unavailable and the defendant
had a prior opportunity for cross-examination.” Id. at 531 (citing Crawford,
541 U.S. at 53-56) (emphasis added).
Because non-testimonial statements do not implicate Confrontation
Clause concerns,3 we first consider whether testimony regarding the BAC
results presented during Appellant’s trial constituted a testimonial or non-
testimonial statement. Here, Appellant’s blood was tested as part of his
hospital treatment following an automobile accident. After the accident,
Appellant was transported to the hospital by EMS, which was summoned in
light of the fact Appellant was reported to be a diabetic and was complaining
of face, neck, and back pains after driving his car off the road and into a field.
Notes of Testimony (“N.T.”), 9/14/20, at 222.
Upon arrival at the hospital, Appellant was belligerent and was sedated
before radiologic studies were performed. While Appellant was in the trauma
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3 “Under Crawford, . . . the Confrontation Clause has no application to [out-
of-court non-testimonial] statements and therefore permits their admission
even if they lack indicia of reliability.” Whorton v. Bockting, 549 U.S. 406,
420 (2007).
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unit, one of the trauma team nurses drew his blood into several trauma panels
coded with multiple colors, one of which was green. See N.T., 9/15/20, at
262-65. The panels were placed by a lab tech into a Ziploc bag and were sent
through a pneumatic tube to the lab, where the blood in the green-capped
tube was centrifuged by lab assistant Dave Achenbach, who testified as to the
process. Id. at 279-82. After centrifuging, which isolates the plasma to be
tested for alcohol, a medical technologist places the tube on the Roche
machine, where a reagent is added, causing a reaction. A calibration curve
then produces a BAC result that is entered in the computer. Id. at 300-01.
Basically, the technologist opens the tube, places it in a rack, hits a button,
“[a]nd 10 minutes later you have results,” which are automatically entered
into the computer and auto-filed in the patient’s medical record. Id. at 301-
03.4 Doctors and nurses at Hershey Medical Center rely on the toxicology
reports when treating their patients. Id. at 303, 304, 341.
Because it is the machine that analyzes the sample and produces the
results, it is important that the machine is calibrated and that quality control
measures are in place to produce accurate results, matters to which lab
supervisor Monica Straub testified. Id. at 294-328. As the trial court
observed, the Roche machine on which Appellant’s blood was analyzed “did
not conduct its analysis in preparation of the trial, but rather for medical
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4Hershey Medical Center does not track which technologist places the tubes
on the rack in the Roche machine. N.T., 9/15/20, at 312-13.
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purposes only as it states on the toxicology report. Accordingly, these tests
are conducted and results maintained in the regular course of business
(medical treatment).” Rule 1925(a) Opinion, 11/15/21, at 6 n.10.
In analyzing whether a statement was testimonial, our Supreme Court
in Yohe also looked to Melendez-Diaz v. Massachusetts, 557 U.S. 305(2009), in which the High Court determined scientific reports were testimonial
in nature and were subject to the Confrontation Clause. In Melendez-Diaz,
charges were brought for distributing cocaine and trafficking in cocaine. The
drugs in that case were found in the police cruiser in which Melendez-Diaz and
two others were transported to the police station. The drugs were sent to a
state laboratory where they were analyzed in response to the police request.
At trial, the police presented the drugs into evidence along with “certificates
of analysis” reflecting that the substance tested was cocaine. While the
certificates were sworn to before a notary public by state lab analysts as
required by Massachusetts law, the Court determined that Confrontation
Clause rights were violated when the certificates of analysis were introduced
without testimony from the analysts who conducted that testing. The High
Court looked to Crawford and explained:
In Crawford, after reviewing the [Confrontation] Clause’s
historical underpinnings, we held that it guarantees a defendant’s
right to confront those “who ‘bear testimony’” against him. 541
U.S., at 51[.] A witness’s testimony against a defendant is thus
inadmissible unless the witness appears at trial or, if the witness
is unavailable, the defendant had a prior opportunity for cross-
examination. Id., at 54[.]
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Our opinion described the class of testimonial 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 be 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.”
Melendez-Diaz, 557 U.S. at 309-10 (quoting Crawford, 541 U.S. at 51-52)
(emphasis added).5
The Court in Yohe also considered Bullcoming v. New Mexico, 564
U.S. 647 (2011). In Bullcoming, following an automobile accident,
Bullcoming was apprehended by an officer who conducted field sobriety tests,
which Bullcoming failed. The officer arrested Bullcoming for driving under the
influence. When Bullcoming refused to take a breath test, the police obtained
a warrant authorizing a blood alcohol analysis. Pursuant to the warrant, a
sample of his blood was drawn at a local hospital and was sent to a state-run
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5 In Crawford, the prosecution played for the jury a tape-recorded statement
made to police by Crawford’s wife, who did not testify at trial based on state
marital privilege. In that statement, the wife described events in which her
husband stabbed a man who had previously attempted to rape her. The
statement, which was offered to defeat Crawford’s claim of self-defense, was
found to violate the Confrontation Clause because Crawford had no
opportunity for cross-examination.
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laboratory for analysis. The state analyst assigned to test the blood certified
the results revealing a BAC of .21%. However, that analyst did not testify at
trial because, for reasons not disclosed at trial, that analyst had been placed
on unpaid leave. The prosecution attempted to introduce the BAC report
through another lab employee familiar with the process.
The High Court concluded that Bullcoming’s Confrontation Clause rights
were violated and, citing Melendez-Diaz, reiterated that, “[a]s a rule, if an
out-of-court statement is testimonial in nature, it may not be introduced
against the accused at trial unless the witness who made the statement is
unavailable and the accused has had a prior opportunity to confront that
witness.” Bullcoming, 564 U.S. at 657.
Justice Sotomayor provided the fifth vote holding that the trial court
erred in admitting the BAC report. However, she wrote separately for two
reasons, “first to highlight why I view the report at issue to be testimonial—
specifically because its ‘primary purpose’ is evidentiary—and second to
emphasize the limited reach of the Court’s opinion.” Id. at 668 (Sotomayor,
J., concurring). The Justice explained:
Under our precedents, the New Mexico Supreme Court was correct
to hold that the certified BAC report in this case is testimonial.
To determine if a statement is testimonial, we must decide
whether it has “a primary purpose of creating an out-of-court
substitute for trial testimony.” Michigan v. Bryant, 562 U.S.
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344, 358[] (2011).[6] When the “primary purpose” of a statement
is “not to create a record for trial,” ibid., “the admissibility of [the]
statement is the concern of state and federal rules of evidence,
not the Confrontation Clause,” id., at 359[.]
This is not the first time the Court has faced the question whether
a scientific report is testimonial. As the Court explains, ante[,] in
Melendez–Diaz[,] we held that “certificates of analysis,”
completed by employees of the State Laboratory Institute of the
Massachusetts Department of Public Health, id., at 308[,] were
testimonial because they were “incontrovertibly . . . ‘ “solemn
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6 In Bryant, the Court held that a shooting victim’s identification of his shooter
and location of the shooting were not testimonial statements because the
circumstance of the interaction between the victim, who died, and the police
indicated that the “primary purpose of the interrogation was to enable police
assistance to meet an ongoing emergency.” Bryant, 562 U.S. at 349 (quoting
Davis v. Washington, 547 U.S. 813, 822 (2006) (internal quotations
omitted)).
As our Supreme Court reiterated in Commonwealth v. Allshouse, 36
A.3d 163 (Pa. 2012):
When, as in Davis, the primary purpose of an interrogation is to
respond to an “ongoing emergency,” its purpose is not to create
a record for trial and thus is not within the scope of the
[Confrontation] Clause. But there may be other circumstances,
aside from ongoing emergencies, when a statement is not
procured with a primary purpose of creating an out-of-court
substitute for trial testimony. In making the primary purpose
determination, standard rules of hearsay, designed to identify
some statements as reliable, will be relevant. Where no such
primary purpose exists, the admissibility of a statement is the
concern of state and federal rules of evidence, not the
Confrontation Clause.
Id. at 174 (quoting Bryant, 562 U.S. at 358-59 (emphasis in original;
footnote omitted)). In Allshouse, the Court concluded the primary purpose
of a statement given to a caseworker by the four-year-old daughter of the
appellant was non-testimonial and was admissible under the tender years
exception to the hearsay rule.
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declaration[s] or affirmation[s] made for the purpose of
establishing or proving some fact,” ’ ” id., at 310[,] (quoting
Crawford[, 541 U.S. at 36], in turn quoting 2 N. Webster, An
American Dictionary of the English Language (1828)).
As we explained earlier this Term in Michigan v. Bryant, “[i]n
making the primary purpose determination, standard rules of
hearsay . . . will be relevant.” 562 U.S., at 358-359[.] As applied
to a scientific report, Melendez–Diaz explained that pursuant to
Federal Rule of Evidence 803, “[d]ocuments kept in the regular
course of business may ordinarily be admitted at trial despite their
hearsay status,” except “if the regularly conducted business
activity is the production of evidence for use at trial.” 557 U.S.,
at 321[,] (citing Fed. Rule Evid. 803(6)). In that circumstance,
the hearsay rules bar admission of even business records.
Relatedly, in the Confrontation Clause context, business and
public records “are generally admissible absent confrontation . . .
because—having been created for the administration of an entity’s
affairs and not for the purpose of establishing or proving some
fact at trial—they are not testimonial.” Melendez–Diaz, 557
U.S., at 324[.] We concluded, therefore, that because the
purpose of the certificates of analysis was use at trial, they were
not properly admissible as business or public records under the
hearsay rules, id., at 321-322[,] nor were they admissible under
the Confrontation Clause, id., at 324[.] The hearsay rule’s
recognition of the certificates’ evidentiary purpose thus confirmed
our decision that the certificates were testimonial under the
primary purpose analysis required by the Confrontation Clause.
See id., at 311[] (explaining that under Massachusetts law not
just the purpose but the “sole purpose of the affidavits was to
provide” evidence).
Similarly, in this case, for the reasons the Court sets forth the BAC
report and [analyst’s] certification on it clearly have a “primary
purpose of creating an out-of-court substitute for trial testimony.”
Bryant, 562 U.S., at 358[.] The Court also explains why the BAC
report is not materially distinguishable from the certificates we
held testimonial in Melendez–Diaz. See 557 U.S., at 308[.]
The formality inherent in the certification further suggests its
evidentiary purpose. Although “[f]ormality is not the sole
touchstone of our primary purpose inquiry,” a statement’s
formality or informality can shed light on whether a particular
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statement has a primary purpose of use at trial. Bryant, 562
U.S., at 366[.] . . .
In sum, I am compelled to conclude that the report has a “primary
purpose of creating an out-of-court substitute for trial testimony,”
Bryant, 562 U.S., at 358[.]
Id. at 669-72 (Sotomayor, J., concurring) (footnotes omitted). Further, she
noted:
[T]his is not a case in which the State suggested an alternative
purpose, much less an alternative primary purpose, for the BAC
report. For example, the State has not claimed that the report
was necessary to provide Bullcoming with medical treatment. See
Bryant, 562 U.S. 344, 362, n. 9[.] (listing “Statements for
Purposes of Medical Diagnosis or Treatment” under Federal Rule
of Evidence 803(4) as an example of statements that are “by their
nature, made for a purpose other than use in a prosecution”);
Melendez–Diaz, 557 U.S., at 312, n. 2[,] (“[M]edical reports
created for treatment purposes . . . would not be testimonial under
our decision today”)[.]
Id. at 672 (Sotomayor, J., concurring).
Appellant cites Crawford, Melendez-Diaz and Bullcoming in support
of his Confrontation Clause claims. He also relies on this Court’s decision in
Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super. 2010). In that
case, an officer observed a vehicle operated by Barton-Martin run a red light.
The officer then followed the vehicle and, after observing the car speeding and
weaving within its lane for a half mile, activated his lights and executed a
traffic stop. The officer smelled alcohol on Barton-Martin’s breath, and noticed
slurred speech and glassy eyes. After Barton-Martin failed field sobriety tests
and a preliminary breath test, the officer arrested her and transported her to
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Hanover Hospital for a legal blood draw. The sample tested produced a BAC
of .209%.
At trial, the prosecution attempted to admit the lab report as a business
record through testimony of the hospital’s custodian of records rather than
call as a witness the lab technician who performed the test on Barton-Martin’s
blood sample. Based on Melendez-Diaz, because it not shown that the lab
technician was unavailable and that Barton-Martin had an opportunity to
cross-examine her, this Court found that admission of the BAC lab results
violated Barton-Martin’s right to confrontation and her conviction for highest
rate of alcohol was reversed.
Appellant argues that, just as in Barton-Martin, his confrontation
rights were violated and his DUI convictions should not stand. However, while
citing Barton-Martin and the United States Supreme Court’s decisions in
Crawford, Melendez-Diaz and Bullcoming in support of his arguments,
Appellant fails to appreciate one critical distinction between the case before
us and the ones on which he relies. In each of those cases, the statement at
issue was the product of a police investigation following an arrest; the primary
purpose for the statement was to support an arrest for DUI (Barton-Martin
and Bullcoming), to support an arrest for cocaine possession (Melendez-
Diaz), and to support an arrest for assault and attempted murder
(Crawford). In other words, the primary purpose of the statements was to
create an out-of-court substitute for trial testimony. By contrast, as detailed
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above, Appellant’s blood was tested as part of his hospital treatment following
an automobile accident. Again, as the trial court observed, the machine on
which Appellant’s blood was analyzed “did not conduct its analysis in
preparation of the trial, but rather for medical purposes only[,] as it states on
the toxicology report. Accordingly, these tests are conducted and results
maintained in the regular course of business (medical treatment).” Rule
1925(a) Opinion, 11/15/21, at 6 n.10.
As our Supreme Court reiterated in Allshouse, “[I]n analyzing whether
a statement is testimonial, and, therefore, subject to the protections of the
Confrontation Clause under Crawford, a court must determine whether the
primary purpose of the interrogation was to establish or prove past events
relevant to a later criminal prosecution.” Allshouse, 36 A.3d at 175. As the
prosecutor observed in the instant case, none of the individuals whom the
defense asserted would be proper witnesses regarding Appellant’s BAC results
“are the ones that certified the accuracy of the test. The machine generates
that number and it goes immediately into the medical record for the treatment
of the patient. So it’s not like [National Medical Services Labs] where you’re
preparing for court and someone is certifying a result.” N.T., 9/15/20, at 311.
We agree. We find the primary purpose of Appellant’s BAC testing was neither
to establish nor prove past events relevant to a later criminal prosecution, but
rather was for the purpose of Appellant’s medical treatment. Therefore, the
testimony presented at trial was not testimonial.
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Because we conclude that testimony at issue here was non-testimonial,
we find that Appellant’s Confrontation Clause rights were not violated.
Therefore, we affirm Appellant’s judgment of sentence.7
Judgment of sentence affirmed.
This decision was reached prior to the retirement of Judge Musmanno.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/05/2022
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7 Although we reach our conclusion for reasons different from those stated by
the trial court, we recognize that an appellate court may affirm a decision of
the trial court for any reason supported by the record. Allshouse, 36 A.3d
at 182.
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