Com. v. Banko, D.

J-S26002-21

                               2022 PA Super 5



COMMONWEALTH 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.
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        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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J-S26002-21


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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