Opinion by Stevens, P.J.
McKellick was stopped for erratic driving. During the stop, the officer detected the odor of alcohol on his breath and noted that his eyes were bloodshot and glassy. When McKellick was asked to perform field sobriety tests, he stumbled. Blood testing revealed his BAC to be .23%. He was arrested and charged but, prior to trial, the arresting officer - and sole witness to the stop - was killed in the line of duty while attempting to rescue a kidnapped child. In the officer's absence, the Commonwealth was forced to rely on a video of the stop, along with the blood-test results. McKellick was convicted and appealed, alleging, inter alia, that the admission of the video violated his rights under the Confrontation Clause.
The Superior Court disagreed, and held that video evidence, when it does not include audio, is not sufficiently testimonial to trigger Confrontation Clause rights. It also concluded that the video presented at trial was sufficiently authenticated by the police department's video technician.
Judge Donohue dissented, and would have held that video-recordings can never be authenticated by a witness who does not have independent knowledge of the events depicted in the video.
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