Com. v. Blasioli

• Decision Date: 07 November 1996
• Citation: 454 Pa.Super. 207,685 A.2d 151
• Parties: COMMONWEALTH of Pennsylvania v. Donald J. BLASIOLI, Appellant.
• Court: Pennsylvania Superior Court

Page 151

685 A.2d 151

454 Pa.Super. 207

COMMONWEALTH of Pennsylvania v. Donald J. BLASIOLI, Appellant.

Superior Court of Pennsylvania.

Submitted July 8, 1996.

Filed Nov. 7, 1996.

Timothy P. Dawson, Adamsburg, for appellant.

Wayne B. Gongaware, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

Before HUDOCK, SCHILLER, and MONTEMURO ^*, JJ.

SCHILLER, Judge.

Appellant appeals from the order of the Court of Common Pleas of Westmoreland County denying his post-sentence motions regarding his conviction on August 18, 1995, of one count each of rape, ¹ indecent assault, ² simple assault, ³ and unlawful restraint. ⁴ Appellant was sentenced to 4-8 years on the rape count, ⁵ and 6-12 months (concurrent) on the simple assault and unlawful restraint counts. We affirm.

FACTS:

The appellant was convicted of a rape that occurred on May 4, 1993, at approximately 11:00 P.M. on a poorly lit roadway near the city of Jeannette. The assailant covered the eyes of the victim during the attack, then smoked a cigarette before departing. Seminal fluid from the victim and a "Bel-Aire" cigarette butt were recovered from the scene. On September 25, 1993, Trooper Kenneth Karas of the Pennsylvania State Police visited appellant's home to discuss this assault. The appellant admitted that he smoked "Bel-Aire" cigarettes, and provided a saliva sample for the officer. This saliva sample was then tested by the Pennsylvania State Police laboratory, and indicated that the appellant had type A blood. The cigarette butt had previously been tested and was found to have come from someone with type A blood. Based on this information, on October 15, 1993, Trooper Karas secured a search warrant to obtain samples of appellant's blood, head hairs, chest hairs and pubic hairs. DNA tests were then performed by the Pennsylvania State Police laboratory on the blood sample taken from the appellant and the semen sample obtained from the victim, and these were found to match. Appellant was arrested on February 15, 1994.

Prior to trial, the court held a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), to determine the admissibility of statistical evidence derived from DNA tests performed on the blood sample taken from the appellant and the semen sample obtained from the victim. The court heard the testimony of several expert witnesses and concluded that the two primary statistical methods, the product rule and the ceiling principle, met the test of general acceptance in the scientific community and were admissible. ⁶

The DNA evidence introduced at trial showed that the samples taken from the victim and from the appellant matched. Depending on which statistical method was used, the chances of another genetic match were either 1 in 2,220; 1 in 30 million, or 1 in 10 billion.

The jury found the appellant guilty on all counts. Sentence was imposed on September 28, 1995. Appellant filed a post-sentence motion on October 10, 1995, which was denied on February 8, 1996. This appeal followed.

DISCUSSION:

Appellant raises six issues on appeal: (1) whether the taking of the appellant's saliva by Trooper Karas was an unconstitutional search under the United States and Pennsylvania Constitutions; (2) whether the trial court erred in refusing to strike three prospective jurors for cause; (3) whether the Commonwealth was required to have its DNA experts prepare written summary reports for use by appellant; (4) whether the trial court erred in admitting the DNA statistical evidence of the Commonwealth; (5) whether the trial court erred in refusing to admit a report compiled by appellant's expert; and (6) whether the appellant's right to a fair trial was prejudiced by the trial judge's remark regarding the qualifications of appellant's expert.

Appellant's first argument is that the trial court erred in denying his motion to suppress the saliva evidence introduced at trial. Appellant contends that this evidence was obtained via a search that violated his rights under the United States Constitution ⁷ and the Pennsylvania Constitution. ⁸

When reviewing a ruling of the trial court regarding a motion to suppress evidence, "an appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom." Commonwealth v. Gommer, 445 Pa.Super. 571, 573, 665 A.2d 1269, 1270 (1995), alloc. denied, 1996 Pa. Lexis 1484 (July 22, 1996) (citation omitted). If the evidence supports the suppression court's findings, "we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error." Commonwealth v. Gommer, supra, at 573, 665 A.2d at 1270 (citation omitted). See also Commonwealth v. Miller, 541 Pa. 531, 555, 664 A.2d 1310, 1322 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996).

When a defendant files a motion to suppress, the burden is on the Commonwealth to prove, by a preponderance of the evidence, that the challenged evidence is admissible. Pa.R.Crim.P. 323; Commonwealth v. Benton, 440 Pa.Super. 441, 444, 655 A.2d 1030, 1032 (1995), citing Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992). However, on appeal from a decision denying suppression, our scope of review is limited and we must consider only the Commonwealth's evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Epoca, 447 Pa.Super. 183, 185, 668 A.2d 578, 579 (1995), alloc. denied, 544 Pa. 623, 675 A.2d 1243 (1996).

In addressing appellant's argument, the threshold question is whether the taking by the police officer of saliva from appellant constituted a "search," thereby triggering the constitutional protections of the Fourth Amendment and Article 1, § 8. A search "is an examination of a man's house, buildings or of his person, with a view to the discovery of contraband or some evidence of guilt to be used by the prosecution for a criminal action." Commonwealth v. Anderson, 208 Pa.Super. 323, 326-27, 222 A.2d 495, 498 (1966) (citation omitted). Not all searches raise constitutional concerns; it is only "when the government intrudes on an area where a person has a 'constitutionally protected reasonable expectation of privacy' " that an issue is raised under the Fourth Amendment and Article 1, § 8. Commonwealth v. Robbins, 436 Pa.Super. 177, 184, 647 A.2d 555, 558 (1994), quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). The United States Supreme Court has set forth a two part test to determine if a search occurred: (1) whether a person exhibited an actual expectation of privacy; and (2) whether such an expectation was one that society is prepared to recognize as reasonable. Katz v. United States, supra.

Whether the taking of saliva constitutes a search appears to be a question of first impression in Pennsylvania. ⁹ Previously, the taking of blood, breath, and urine samples have been held to constitute searches under both the United States Constitution and the Pennsylvania Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966) (blood); Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, 616-17, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989) (breath and urine); Com., Dept. of Transp. v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987) (blood, breath and urine). The foundation of these decisions was a recognition of the purpose of the constitutional protections, i.e., "to protect personal privacy and dignity against unwarranted intrusion by the State." Schmerber, supra, at 767, 86 S.Ct. at 1833-34.

We believe that a person has an expectation of privacy that includes the taking of his saliva, as he does with his blood, breath, and urine. As one court remarked, "[s]uch a scenario, wherein a citizen is directed to submit to an intrusion into his body, is properly viewed as implicating his dignitary interests." United States v. Nicolosi, 885 F.Supp. 50, 55 (E.D.N.Y.1995). Therefore, we hold that the taking of saliva from an individual by a police officer constitutes a search under the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution. ¹⁰

Next we must determine whether the saliva sample was taken pursuant to the requirements of the United States and Pennsylvania Constitutions. According to the Supreme Court, "a search or seizure is not reasonable unless it is conducted pursuant to a search warrant issued by a magistrate upon a showing of probable cause." Commonwealth v. Kohl, 532 Pa. 152, 166, 615 A.2d 308, 315 (1992). However, a warrant is not required if the person voluntarily consents to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 242-43, 93 S.Ct. 2041, 2055-56, 36 L.Ed.2d 854 (1973); Commonwealth v. Latshaw, 481 Pa. 298, 303, 392 A.2d 1301, 1304 (1978), cert. denied, 441 U.S. 931, 99 S.Ct. 2050, 60 L.Ed.2d 659 (1979). In order for the consent to be valid, it must be "unequivocal, specific, and voluntary." Commonwealth v. Gibson, 536 Pa. 123, 132, 638 A.2d 203, 207 (1994). The burden is upon the Commonwealth to prove by clear and convincing evidence that a valid consent was given by appellant. Commonwealth v. Pichel, 229 Pa.Super. 103, 106, 323 A.2d 113, 114 (1974). See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Appellant contends that the consent given to the officer for the saliva sample was obtained by coercion. For consent to be valid, it must be given free from coercion, duress or deception. See e.g. Commonwealth v. Burgos, 223 Pa.Super. 325, 329, 299 A.2d 34, 37 (1972); Commonwealth v. Slaton, 530 Pa. 207, 215, 608 A.2d 5, 9 (1992); Commonwealth v. Gibson, supra, at 132, 638 A.2d at 207. The question of whether consent was voluntarily...