Com. v. Jackson, M.

[[COURTLISTENER_SUBOPINION {"id":"11137401","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
J-A21007-25


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
  MALIK ANTWIAN JACKSON                         :
                                                :
                       Appellant                :   No. 1788 MDA 2024

       Appeal from the Judgment of Sentence Entered October 2, 2024
              In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0000043-2022


BEFORE:      PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.E.:                 FILED: SEPTEMBER 12, 2025

       Malik Antwian Jackson appeals from the judgment of sentence imposed

on October 2, 2024 for his convictions of possession of small amount of

marijuana, driving under influence of alcohol or controlled substance (“DUI”),

and unlawful activities.1 Jackson argues the trial court erred in allowing the

forensic toxicologist, Stephanie Marco, to testify to her review of another

analyst’s work product and provide her opinion that Jackson had marijuana in

his blood in violation of Smith v. Arizona,
602 U.S. 779
(2024). After our

careful review, we affirm.



____________________________________________


* Former Justice specially assigned to the Superior Court.


1 35 P.S. § 780-113(a)(31), 75 Pa.C.S.A. §§ 3802(d)(1)(i), and 4107(b)(2),

respectively.
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      Jackson was charged with the above offenses by criminal complaint filed

on October 18, 2021. Jackson proceeded to a bench trial on October 2, 2024.

The trial court set forth the relevant factual history:

      During the October 2, 2024 bench trial, Joshua Reager testified
      that on October 16, 2021, he was an officer for the Highspire
      Borough Police Department. On that day at around 1:00 p.m. he
      observed a small Toyota sedan travelling eastbound on Route 230
      in the borough. The Toyota was traveling towards Officer Reager,
      so he was able to see that the windshield was tinted. Officer
      Reager made a U turn with the intent to stop the vehicle for
      inspection and possible Title 75 violation. Officer Reager followed
      the Toyota into an apartment complex where he observed the
      vehicle backing into a parking spot. He parked his vehicle and
      activated his emergency lights to notify the driver he was
      approaching him. Officer Reager identified [Jackson] as the driver
      of the vehicle.

      Officer Reager approached [Jackson] and asked for his driver’s
      license, registration and insurance card. Officer Reager described
      [Jackson] as defiant as he refused to provide the information he
      requested. When Officer Reager approached the driver’s side of
      the vehicle, [h]e detected a strong odor of marijuana; he was
      unable to identify whether it was coming out of the car, or off of
      [Jackson]. Officer Reager observed that [Jackson] had glossy,
      blood shot eyes. [Jackson] moved towards the back of the vehicle
      and when Officer Reager told him not to enter the trunk, [Jackson]
      responded that the officer was [“]going to need back up.[”] At that
      point, Officer Reager detained [Jackson] and placed him in the
      back of his police car. Officer Reager secured the vehicle and
      waited for back up to arrive. Officer Reager made the decision to
      impound the car and request a search warrant.

      Once the car was being towed, Officer Reager took [Jackson] to
      the Dauphin County booking center to request a blood draw.
      [Jackson] consented to the blood draw. Officer Reager observed
      the blood being drawn and took custody of the sealed kit once it
      was completed. He placed the kit into the evidence refrigerator at
      the police department and another officer transferred the kit to
      FedEx and it was sent to NMS Labs. A search warrant was
      ultimately issued, and the vehicle was searched during which a
      small amount of marijuana and rolling papers were found.

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      Melissa Sheely testified that on October 16, 2021, she was
      working as a medical assistant at PrimeCare, which is a company
      that provides services for the Dauphin County prison system. She
      recalled drawing blood for [Jackson] on that date. Ms. Sheely
      identified the process by which the blood was drawn and stored
      and the paperwork she ultimately signed at the completion of the
      draw.

      Stephanie Marco testified that she is employed at NMS Labs as a
      toxicologist. She offers testimony as an expert in forensic
      toxicology. She explained that when offering expert testimony,
      she bases her opinion on reviewing the raw data, she does not
      physically handle the sample being tested. Ms. Marco noted that
      in this particular case, she was aware that the sample arrived
      through FedEx. Ms. Marco explained the process by which a
      sample is received, identified and tracked once it reaches the
      laboratory. She explained that all samples receive a unique bar
      code that enables the sample to be tracked throughout the
      process of analysis as it moves through the laboratory. Ultimately,
      based on the samples provided and tested, [Jackson’s blood
      sample] tested positive for THC.

Trial Court Opinion, 2/3/25, at 2-4 (record citations omitted).

      The trial court found Jackson guilty and sentenced Jackson to 6 months

of restrictive probation, with the first 4 days in Dauphin County Prison,

followed by the remainder of the six months on standard probation. Jackson

filed a timely appeal and complied with the court’s order to file a Rule 1925(b)

statement. See Pa.R.A.P. 1925(b).

      Jackson raises one issue for our review:

      Whether, pursuant to the United States Supreme Court’s holding
      in Smith v. Arizona,
602 U.S. 779
(2024), the lower court erred
      in allowing a non-testing scientist to testify about tests and reports
      from other scientists as the basis of their ultimate conclusion that
      [] Jackson had a controlled substance in his blood[?]

Appellant’s Brief, at 4.

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      Jackson argues his right to confront his accusers was violated when

Marco testified to her report, which was premised upon the work of others.

See Appellant’s Brief, at 10. Jackson argues the United States Supreme

Court’s decision in Smith overrules, or at least abrogates, our Pennsylvania

Supreme Court’s decision in Commonwealth v. Yohe,
79 A.3d 520
(Pa.

2013). See id. at 29.

      “[T]he issue of whether a defendant was denied his right to confront a

witness under the confrontation clause of the Sixth Amendment is a question

of law for which our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Bloom, --- A.3d ---, 866 WDA 2024, at *5 (Pa.

Super. filed July 10, 2025) (citation omitted).

      The Confrontation Clause of the Sixth Amendment, made
      applicable to the States via the Fourteenth Amendment provides
      that in all criminal prosecutions, the accused shall enjoy the right
      to be confronted with the witnesses against him. In Crawford [v.
      Washington],
541 U.S. 36, 51
(2004)], the [U.S. Supreme]
      Court held that the Sixth Amendment guarantees a defendant’s
      right to confront those who bear testimony against him, and
      defined testimony as a solemn declaration or affirmation made for
      the purpose of establishing or proving same fact. The
      Confrontation Clause, the High Court explained, prohibits out-of-
      court testimonial statements by a witness unless the witness is
      unavailable and the defendant had a prior opportunity for cross-
      examination.

Yohe,
79 A.3d at 530-31
(italics, citations, footnotes, quotation marks,

ellipses, and brackets omitted).

      The Clause’s prohibition applies only to testimonial hearsay—and
      in that two-word phrase are two limits. First, in speaking about
      witnesses—or those who bear testimony—the Clause confines
      itself to testimonial statements, a category whose contours we

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      have variously described. Second and more relevant here, the
      Clause bars only the introduction of hearsay—meaning, out-of-
      court statements offered to prove the truth of the matter asserted.
      When a statement is admitted for a reason unrelated to its truth,
      we have held, the Clause’s role in protecting the right of cross-
      examination is not implicated.

Smith,
602 U.S. at 784-85
(citations and quotation marks omitted).

      [W]hether a statement is testimonial depends on its primary
      purpose:

            Statements are nontestimonial when made in the
            course of police interrogation under circumstances
            objectively indicating that the primary purpose of the
            interrogation is to enable police assistance to meet an
            ongoing emergency. They are testimonial when the
            circumstances objectively indicate that there is no
            such ongoing emergency, and that the primary
            purpose of the interrogation is to establish or prove
            past events potentially relevant to later criminal
            prosecution.

Yohe,
79 A.3d at 531
(citation and quotation marks omitted).

      “[The Confrontation Clause’s] prohibition applies in full to forensic

evidence. So a prosecutor cannot introduce an absent laboratory analyst’s

testimonial out-of-court statements to prove the results of forensic testing.”

Smith,
602 U.S. at 783
(citation omitted). In Yohe, our Supreme Court

agreed that toxicology reports obtained by police in determining whether a

suspect was DUI is testimonial and subject to the Confrontation Clause. See

Yohe,
79 A.3d at 537
. This is because “the report was made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial and was plainly




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created for an evidentiary purpose.”
Id.
(citations and internal quotation

marks omitted).

      However, at the time our Supreme Court decided Yohe, the U.S.

Supreme Court had “left unresolved precisely who the analyst is or, in

circumstances involving multiple analysts, which analyst or analysts must

testify.”
Id. at 538
. The Yohe Court sought to answer that question.

      In Yohe, after police stopped Yohe for inoperable license plate and

brake lights, the officer observed signs of intoxication. See
id. at 523
. The

officer requested and obtained a blood sample and sent that sample to NMS

Labs for analysis. See
id.
At NMS Labs, an employee confirmed the seal was

not broken, labeled the sample, and placed it in a secured bin. See
id.
Another

employee then retrieved the sample, removed a portion of blood (called an

aliquot), returned the sample to storage, and tested the aliquot for alcohol

content. See
id.
This first test was completed using enzymatic assay. See
id.
A third employee conducted two more tests with the sample by removing two

new aliquots from the sample and testing those aliquots using gas

chromatography. See
id.
Finally, a fourth employee, Dr. Lee Blum, received

all data from the three prior employees, examined the results of the three

tests, confirmed the chain of custody, and authored a report indicating what

Yohe’s BAC was at the time the blood sample was drawn. See
id. at 523-24
.

Despite Yohe’s objections, Dr. Blum’s report was the report utilized at trial to

convict Yohe. See
id. at 524
.25.


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      After reviewing in detail the U.S. Supreme Court decisions in Melendez-

Diaz v. Massachusetts,
557 U.S. 305
(2009), Bullcoming v. New Mexico,
564 U.S. 647
(2011), and Williams v. Illinois,
567 U.S. 50
(2012), our

Supreme Court parsed out who of the four employees were required to testify

to satisfy the Confrontation Clause. The Yohe Court found that Dr. Blum was

the analyst that must testify to satisfy the Confrontation Clause:

      According to Dr. Blum’s trial testimony, he reviewed the case
      folder, verified the chain of custody information and examined the
      personal identification information. Additionally, he checked the
      testing that was performed and the data that resulted, evaluated
      the analytical data from the duplicate gas chromatography and
      the enzymatic assay, compared the results of the two gas
      chromatography tests, compared the result of the enzymatic
      assay test to the two gas chromatography tests, ensured that
      these numbers supported each other, and reported the lowest of
      the two gas chromatography test results as Appellant’s BAC.

      ***

      Based on these facts, we hold that Dr. Blum is the analyst who
      determined Appellant’s BAC. Although he relied on the raw data
      produced by the lab technicians and utilized this raw data in
      reaching an expert opinion premised on his evaluation of the case
      file, he is the only individual who engaged in the critical
      comparative analysis of the results of the gas chromatography
      tests and the enzymatic assay and determined Appellant’s BAC.
      Dr. Blum was at the top of the inferential chain, and utilized the
      data that preceded his analysis in reaching his conclusion. He
      reached the conclusion in the Toxicology Report based on his
      analysis of the raw data, certified the results, and signed his name
      to them. As lab supervisor, moreover, Dr. Blum was generally
      familiar with standard procedures and able to identify any
      deviations from this procedure or any problems with the particular
      lab technician. Accordingly, Dr. Blum supervised [the two
      employees who conducted the tests], evaluated and validated the
      entire record, decided which number to report as Appellant’s blood
      alcohol content, and signed his name to the report. He was,


                                     -7-
J-A21007-25


      therefore the certifying analyst who authored the Toxicology
      Report, and the analyst whom Appellant had a right to confront.

Id. at 539-40.

      As noted above, Jackson argues Smith abrogated or overruled Yohe.

The Smith Court recognized that its prior decisions, especially Williams, has

“sown confusion in courts across the country about the Confrontation Clause’s

application to expert opinion testimony.” Smith,
602 U.S. at 789
(internal

quotation marks and citation omitted).

      In Smith, police executed a search warrant on a property and found

Smith at the property along with a large quantity of what appeared to be

different types of drugs and drug-related items. See
id.
Smith was arrested

and charged with possessing methamphetamine, marijuana, and cannabis for

sale and possessing drug paraphernalia. See
id.
In preparation for trial,

Arizona sent the items off to be tested and analyst Elizabeth Rast tested the

items, found them to contain drugs, created notes and a final report. See
id.

at 789-90
. Rast’s notes documented the types of tests run and the results,

including the weight of each type of drug. See
id. at 790
. Arizona intended to

call Rast as an expert witness at trial to testify to her testing procedures and

findings. See
id.
However, three weeks prior to trial, Arizona decided to call another

analyst because Rast had left her employment with the lab. See
id.
Instead,

Arizona called Greggory Longoni, who reviewed Rast’s notes and report and

came to his own “independent opinion” that the items contained drugs.
Id.
at

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790-91. Smith objected to the testimony of Longoni arguing a violation of his

Confrontation Clause rights and then appealed after he was convicted. See
id. at 791
. All Arizona courts affirmed, finding that an expert is permitted to

rely on the substance of a non-testifying witness’s analysis because the

underlying facts are not admitted for their truth, but “only to show the basis

of the in-court witness’s opinion[.]”
Id. at 791-92
(internal quotation marks,

brackets, and citation omitted). The U.S. Supreme Court accepted certiorari

to address “the application of [the Confrontation Clause] to a case in which an

expert witness restates an absent lab analyst’s factual assertions to support

his own opinion testimony.”
Id. at 783
.

      The U.S. Supreme Court rejected the notion that the underlying facts

were not admitted for their truth:

      [T]ruth is everything when it comes to the kind of basis testimony
      presented here. If an expert for the prosecution conveys an out-
      of-court statement in support of his opinion, and the statement
      supports that opinion only if true, then the statement has been
      offered for the truth of what it asserts. How could it be otherwise?
      The whole point of the prosecutor’s eliciting such a statement is
      to establish—because of the statement’s truth—a basis for the jury
      to credit the testifying expert’s opinion. Or said a bit differently,
      the truth of the basis testimony is what makes it useful to the
      prosecutor; that is what supplies the predicate for—and thus gives
      value to—the state expert’s opinion. So there is no meaningful
      distinction between disclosing an out-of-court statement to
      explain the basis of an expert's opinion and disclosing that
      statement for its truth. A State may use only the former label, but
      in all respects the two purposes merge.

      ***

      Rast’s statements thus came in for their truth, and no less because
      they were admitted to show the basis of Longoni’s expert opinions.

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      All those opinions were predicated on the truth of Rast’s factual
      statements. Longoni could opine that the tested substances were
      marijuana, methamphetamine, and cannabis only because he
      accepted the truth of what Rast had reported about her work in
      the lab—that she had performed certain tests according to certain
      protocols and gotten certain results. And likewise, the jury could
      credit Longoni’s opinions identifying the substances only because
      it too accepted the truth of what Rast reported about her lab work
      (as conveyed by Longoni). If Rast lied about all those matters,
      Longoni’s expert opinion would have counted for nothing, and the
      jury would have been in no position to convict. So the State’s basis
      evidence—more precisely, the truth of the statements on which
      its expert relied—propped up its whole case. But the maker of
      those statements was not in the courtroom, and Smith could not
      ask her any questions.

      ***

      … Here, the State used Longoni to relay what Rast wrote down
      about how she identified the seized substances. Longoni thus
      effectively became Rast’s mouthpiece. He testified to the
      precautions (she said) she took, the standards (she said) she
      followed, the tests (she said) she performed, and the results (she
      said) she obtained. The State offered up that evidence so the jury
      would believe it — in other words, for its truth. So if the out-of-
      court statements were also testimonial, their admission violated
      the Confrontation Clause. Smith would then have had a right to
      confront the person who actually did the lab work, not a surrogate
      merely reading from her records.
Id. at 795-800
(quotation marks, emphasis, brackets, and citations omitted).

      Based upon Smith’s finding that the analyst who testified was relying

on the truth of the testing analyst’s notes, Jackson argues his conviction for

DUI must be reversed and a new trial ordered. See Appellant’s Brief, at 32-

34. As Jackson points out, Marco testified that she “reviewed the raw data and

did not handle the sample[,]” conduct the tests, or calibrate the machines.

Id. at 32. Because Marco did not conduct the tests herself, she only assumed


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the analysts did their job correctly and Jackson was left without his

constitutional right to confront the actual witness against him: the analysts

who performed the tests. See id. at 33.

     The Commonwealth responds that Smith did not explicitly overturn or

abrogate   Yohe.    See   Appellee’s   Brief   (unpaginated).   Further,   the

Commonwealth asserts Marco is not the type of surrogate witness Smith

disapproved of in their decision. See id. The Commonwealth asserts Yohe is

controlling, and under Yohe, the appropriate analyst testified. See id. We

agree with the Commonwealth’s position.

     Marco testified she is employed as a toxicologist at NMS Labs. See N.T.

Trial, 10/2/24, at 41. In this case, another analyst tested Jackson’s blood

using liquid chromatography. See id. at 44. Marco testified to the process

NMS staff took to test Jackson’s blood. See id. at 46-47. First, “there’s a

screening process.” Id. at 46. A small portion of the blood is removed to do

the screening process which looks for classes of drugs. See id. at 46-47. If a

class of drug is present during the screening process, the second step is to

remove another portion of blood from the sample and test it with liquid

chromatography. See id. at 47. Marco did not conduct either of those tests

and merely reviewed the raw data, she “physically do[esn’t] handle the

sample.” Id.

     Specifically, Marco’s “role [at NMS Labs] as a toxicologist is to perform

independent reviews on any of the samples that are run in our laboratory to


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J-A21007-25


ensure that [] any standard operating procedures as well as the test results

are accurately represented on the toxicology report.” Id. at 47-48. This

includes a review of all documentation associated with Jackson’s sample. See

id. at 49, 50-51. She is able to review all the documentation associated with

a given sample because each sample is given a unique bar code and

identification number when it arrives at NMS Labs. See id. at 51-52. That bar

code is scanned every time an employee touches, moves, or tests the sample.

See id.

      Marco never touched Jackson’s blood sample, the portions that were

removed, nor did any testing. See id. at 55-56. Marco did not calibrate the

machines for accuracy. See id. at 55. Further, she admits that she “work[s]

on the assumption that [the other employees] did their job[s] correctly[.]” Id.

at 56. Jackson was not able to confront those other employees.

      Based upon our review of the record, Jackson’s argument regarding

Smith may have merit. This case mirrors Smith in that “[Marco] effectively

became [the other employees’] mouthpiece. [She] testified to the precautions

([others] said) [they] took, the standards ([others] said) [they] followed, the

tests ([others] said) [they] performed, and the results ([they] said) [they]

obtained.” Smith,
602 U.S. at 800
.

      However, our Supreme Court has not yet addressed Smith. As such,

Yohe has not been overturned or abrogated. “[T]his [C]ourt has a duty and

obligation to follow the decisional law of the Supreme Court of Pennsylvania.”


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Commonwealth v. Foley,
38 A.3d 882, 892
(Pa. Super. 2012) (citation,

brackets, and internal quotation marks omitted). This is because “[t]he

primary role of the Superior Court is to apply existing law to the cases that

come before us. It is not our function to attempt reversing viable

[Pennsylvania] Supreme Court rulings[.]”
Id.
(citation and internal quotation

marks omitted). “It is elementary that unless the United States Supreme Court

reverses a decision of [the Pennsylvania Supreme] Court, or [the Pennsylvania

Supreme] Court overrules its own prior decision, the law emanating from the

decision remains law.” Commonwealth v. Reid,
235 A.3d 1124
, 1159 (Pa.

2020) (citation and internal quotation marks omitted).

     Based upon Yohe, which addressed an NMS Labs analyst’s testimony

based upon the same review conducted here, there is no error in the trial

court’s decision. See Yohe,
79 A.3d at 539-40
.

     [Marco] was at the top of the inferential chain, and utilized the
     data that preceded [her] analysis in reaching [her] conclusion.
     [She] reached the conclusion in the Toxicology Report based on
     [her] analysis of the raw data, certified the results, and signed
     [her] name to them. … [She] was, therefore the certifying analyst
     who authored the Toxicology Report, and the analyst whom
     Appellant had a right to confront.
Id. at 540
.




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     Accordingly, because the Pennsylvania Supreme Court has not yet

addressed Smith, and Yohe remains binding precedent, the trial court did not

err when it allowed the introduction of Marco’s testimony. As such, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 9/12/2025




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