Com. v. Cieri

• Decision Date: 18 September 1985
• Citation: 499 A.2d 317,346 Pa.Super. 77
• Parties: COMMONWEALTH of Pennsylvania v. Thomas S. CIERI, Appellant. 02280 Phila. 1984
• Court: Pennsylvania Superior Court

Page 317

499 A.2d 317

346 Pa.Super. 77

COMMONWEALTH of Pennsylvania v. Thomas S. CIERI, Appellant.

02280 Phila. 1984

Superior Court of Pennsylvania.

Argued March 27, 1985.

Filed Sept. 18, 1985.

Robert John, Hatboro, for appellant.

Ronald T. Williamson, Asst. Dist. Atty., Norristown, for Com., appellee.

Before SPAETH, President Judge, and JOHNSON and SHOYER ^*, JJ.

SPAETH, President Judge:

This is an appeal from judgment of sentence for homicide by vehicle while driving under the influence of alcohol or a controlled substance, involuntary manslaughter, reckless endangerment, and driving under the influence. Appellant argues (1) that the trial court erred in refusing to suppress the results of a blood alcohol test performed by police on a sample of his blood; (2) that the trial court erred in refusing to permit a witness to testify; (3) that the verdict was against the weight of the evidence; and (4) that the mandatory sentencing provisions of 75 Pa.C.S. § 3735 are unconstitutional. We affirm.

-1-

The standard by which we must review the trial court's refusal to suppress the results of the test of appellant's blood alcohol level is that we "will only consider the evidence of the prosecution and so much of the evidence for the defense as, read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Benedetto, 316 Pa.Super. 134, 136, 462 A.2d 830, 831 (1983) citing Commonwealth v. Leveille, 289 Pa.Super. 248, 433 A.2d 50 (1981). So viewed, the evidence was as follows.

Shortly after midnight on August 13, 1983, appellant, driving his car in Hatboro, Pennsylvania, with his brother Judson as a passenger, collided head-on with a car driven by Gary McMillan. Katherine Waldron, McMillan's passenger, died as a result of injuries suffered in the collision. Sergeant Beadling of the Hatboro Police Department arrived at the scene three to five minutes after receiving a call, N.T. 1/23/84 at 8, and found appellant slumped over in the front seat. The sergeant testified that he "couldn't question [appellant] about the nature of his injuries, [and therefore] decided that it was best to leave [appellant] where he was, ... rather than exaggerating any injuries that [he] might not know about." Id. at 10. The sergeant "notice[d] an odor of alcohol on or about [appellant's] person," but appellant "was in a semi-conscious condition and did not respond to [the sergeant's] speaking to him initially." Id. at 14. The sergeant radioed the police dispatcher to call local hospitals to request that a blood sample be withdrawn from appellant when he arrived for treatment. Id. at 14-15, 29-30. The sergeant explained that he made this request because:

We did have serious injuries. And as part of an investigative procedure, and because I felt Mr. Cieri might have been drinking, I requested the defendant be done. He was in no condition to submit to a breathalyzer test. So the withdrawal of blood was the only method I had.

Id. at 15.

Rescue personnel transported appellant to Abington Memorial Hospital for treatment. For the next two hours, the police continued to investigate the accident and interview witnesses. In the course of the investigation they discovered evidence that marijuana had been used recently in appellant's car. Id. at 31-32.

Nurse Laird, the nurse on duty in the emergency room of Abington Memorial Hospital, testified that appellant arrived at the hospital at about 1:00 a.m. Id. at 39. When she interviewed appellant, she "did notice the smell of alcohol upon his breath when he was talking." Id. at 42. She testified that the attending physician, Dr. Crim, withdrew enough blood from appellant to fill six or seven test tubes, which was the routine procedure to enable the staff to perform necessary tests, with an extra tube included in case additional tests were required. Dr. Crim withdrew the blood almost immediately upon appellant's arrival. Id. at 43-44. At about 2:00 a.m., Nurse Laird spoke with the police dispatcher and learned from him that the police had requested a blood sample. About an hour later, Sergeant Beadling called and Nurse Laird told him that the blood had been withdrawn and that he could pick up the sample at his convenience. She then went to appellant, told him that the police had requested a blood sample, and asked that he sign a consent form enabling her to give the blood sample to the police. Id. at 45-47. She read the consent form to him, ¹ and appellant signed it. She testified that when appellant signed the form, he was in approximately the same condition as when he had arrived at the hospital and was "able to answer questions appropriately;" he had received no medication. Id. at 49.

At about 3:00 a.m., Sergeant Beadling came to the emergency room to pick up the blood sample. Appellant was in the operating room. Nurse Laird asked the sergeant to sign the consent form too, and after he did, she gave him the blood sample. Neither the sergeant nor any other police officer had spoken with appellant regarding his blood being tested for alcohol level. Id. at 15-16. The subsequent test of appellant's blood conducted by police technicians revealed a blood alcohol level of .11 N.T. 1/25/84 at 67.

Appellant's argument that the results of this test should have been suppressed is that since the withdrawal of his blood was undoubtedly a search, and was conducted without a warrant at a time when appellant was not under arrest, it can be justified only under one of the well-established exceptions to the warrant requirement, Brief for Appellant at 17-24; that the only possibly applicable exception is consent; and that although he did sign the consent form given him by Nurse Laird, his consent was invalid both because of the extent of his injuries and because, having spoken with no police officer, he had "no notice of the criminal investigative purpose of the blood test." Id. at 18-19. In response, the Commonwealth argues that since the blood was withdrawn by hospital personnel for purposes of treatment, the withdrawal was a private search, and as such could not have violated appellant's fourth amendment rights, Brief for Appellee at 6-8, and further, that in any event, there was implied consent to the search. Id. at 9-11.

It is clear that the fourth amendment "proscrib[es] only governmental action; it is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, 94 (1985) citing Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (BLACKMUN, J., dissenting). See also Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973); Commonwealth v. Borecky, 277 Pa.Super. 244, 419 A.2d 753 (1980). If the Commonwealth is correct, therefore, that here the search was private, we need not consider appellant's argument that a warrant should have been obtained.

To determine whether a search was "private," the critical factor "is whether [the private individual] in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the state...." Commonwealth v. Borecky, supra at 249, 419 A.2d at 755-56, quoting Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). To determine this, one must look to the purpose of the search, the party who initiated it, and whether the government acquiesced in it or ratified it. See Commonwealth v. Dembo, supra, 451 Pa. at 7-11, 301 A.2d at 693-95.

In the present case the search proceeded in two distinct stages: that which occurred when hospital personnel withdrew appellant's blood, and that which occurred when they gave the blood to the police so that the police could test it for blood alcohol level. It is clear that hospital personnel withdrew appellant's blood for the purpose of treating him for injuries sustained during the accident. The procedure was routine, and was performed before any hospital personnel learned that the police had requested a blood sample. N.T. 1/23/84 at 44. Had nothing further occurred, therefore, the withdrawal of appellant's blood would have been a "private" search, not implicating appellant's fourth amendment rights. See Commonwealth v. Tanchyn, 200 Pa.Super. 148, 188 A.2d 824 (1963). When, however, Nurse Laird handed appellant's blood to Sergeant Beadling, appellant's fourth amendment rights were put at issue, for Nurse Laird acted on the basis of a police request, the purpose of which was to obtain evidence to be used against appellant, and she knew she was so acting, as appears from her conduct of delivering the blood only after obtaining appellant's signature on a form showing on its face that it was to be read to a suspect in the presence of a police officer. ² Accordingly, in delivering appellant's blood to the police, Nurse Laird acted as an "instrument" or "agent" of the government. We must therefore decide whether appellant's fourth amendment rights were violated by the ensuing test for blood alcohol level performed by the police. ³

In approaching this issue, we note that the Commonwealth seems to concede that appellant's argument that he did not consent to the sample of his blood being delivered to the police has force, for it does not argue actual consent as a constitutional basis for the withdrawal of the blood. Instead, as we have indicated, it argues that the search may be justified under the "implied consent" provision of the Vehicle Code, 75 Pa.C.S. § 1547(a). See Brief for Appellee at 8-11. Section 1547 provides:

§ 1547. Chemical testing to determine amount of alcohol or controlled substance

(a) General rule.--Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more...