Com. v. Culp
| Decision Date | 26 September 1988 |
| Citation | 378 Pa.Super. 213,548 A.2d 578 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. David H.G. CULP. |
| Court | Pennsylvania Superior Court |
Robert F. Palermo, Dallastown, for Com., appellant.
John G. Bergdoll, III, York, for appellee.
Before OLSZEWSKI, WATKINS and CERCONE, JJ.
This is a Commonwealth appeal from an order by which the lower court granted appellee's motion to suppress a hospital record containing the results of his blood alcohol test taken immediately following his arrest for driving under the influence of alcohol. Following a hearing on appellee's omnibus pre-trial motion, the lower court held that the Commonwealth had not met its burden of going forward with the evidence, or the burden of establishing that the evidence was not obtained in violation of the appellee's rights. As a result, Judge McCullough suppressed the evidence for use at trial.
This case arose from the following facts. On January 30, 1987, Officer Blair of York Township found the appellee, David Culp, in his pickup truck which was stuck in a snow bank. The officer testified that after speaking with appellee he detected a strong odor of alcohol on appellee's breath, that appellee's speech was slurred, and that appellee had a difficult time maintaining his balance.
Because of the above factors, Officer Blair arrested appellee, read his Miranda rights, and asked him to submit to a blood alcohol test. Appellee allegedly consented to the test and was taken to Memorial Osteopathic Hospital (hereinafter "hospital") where he signed a consent form. The test yielded a blood alcohol level of .195% by weight. Appellee was then taken to the police station, read his rights again, and videotaped as he was interviewed and performed field sobriety tests.
On July 31, 1987, appellee filed an omnibus pre-trial motion in which, inter alia, he moved to suppress the results of the blood alcohol test. He challenged the manner in which the test result was obtained and specifically alleged that the result was obtained in violation of his rights under the statutes and laws authorizing such tests and under the constitutions of the United States and the Commonwealth of Pennsylvania. The suppression hearing took place September 3, 1987.
At the suppression hearing, the Commonwealth asked the court to take judicial notice 1 that the laboratory conducting the test was a licensed and approved laboratory under the Clinical Laboratory Act, 35 Pa.S.A. § 2151, et seq., and the attendant regulations of the Department of Health. 28 Pa.Code §§ 5.50 & 5.103. Further, the Commonwealth requested the Court to take judicial notice of a letter from the Department of Health which related that its approval of the lab means that the procedures, equipment, and personnel are properly qualified and approved to do the tests as mandated by the Clinical Laboratory Act. Appellee objected to judicial notice of such letter and the inferences asserted by the Commonwealth. The court sustained the objection. The Commonwealth provided no evidence in response to appellee's claim other than reference to the Pennsylvania Bulletin, 17 Pa.Bull. 1397, 1398, in which the hospital was cited as a facility approved for specialized blood testing. The Commonwealth presented neither witnesses to testify to the licensing or authorization of the lab or the technicians, nor evidence regarding the laboratory procedures followed in blood testing, or the qualifications of the lab technicians.
The suppression court concluded that the Commonwealth had failed to meet its burden of proof as set forth in Pa.R.Crim.P., Rule 323, 42 Pa.C.S.A.. The lower court reasoned that the Commonwealth had failed to have a custodian or other qualified witness enter the documents into evidence as required by the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, and, accordingly, granted appellee's motion to suppress. This appeal followed. 2 2
Rule 323, supra, provides:
a) The defendant or his attorney may make a motion to the court to suppress any evidence alleged to have been obtained in violation of defendant's rights.
d) The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.
h) The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights. The defendant may testify at such hearing, and, if he does so, does not thereby waive his right to remain silent during trial.
i) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of these rules or any statute, and shall make an order granting or denying the relief sought.
On appeal, the Commonwealth argues that the lower court erred in suppressing the evidence without the allegation or showing of a constitutional violation. While the appellee's pretrial motion contained allegations of constitutional violation, it centered on the question of whether evidence which has been gathered in derogation of a statutory mandate may be suppressed.
The Vehicle Code, 75 Pa.C.S.A. § 101 et seq., provides statutory requirements for the admissibility of chemical tests taken to determine blood alcohol content. It provides that test results are admissible if conducted with equipment of a type approved by the Department of Health and operated by qualified personnel. Id. § 1547(c). Further:
(2) Chemical tests of blood ... shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as "The Clinical Laboratory Act." [35 P.S. § 2151et seq.]
Id. Hospital records are generally admitted at trial as an exception to the hearsay rule under the Uniform Business Records as Evidence Act, supra, to show a fact rather than opinion. See Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1977). Blood alcohol test results have been deemed fact rather than opinion for admissibility purposes. See Commonwealth v. Seville, supra. However, the act requires that the test results may be admitted only if the custodian or other qualified witness testifies to its identity and the mode of its preparation and, in the court's discretion, the method and time of preparation.
The Commonwealth contends that the question of the accuracy of the blood test result and its admissibility under the Business Records Act were not properly before the suppression court and were issues to be decided at trial. This claim is based on its contention that only claims of constitutional violation in the gathering of evidence are the proper subject of a suppression proceeding.
We need look only to the language of and comments to Rule 323, supra, to resolve this issue. Subsection (i) requires the suppression court, at the close of the hearing, to make findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant's rights, or in violation of the rules of procedure or any statute and to make an order granting or denying the relief sought. The comments to Rule 323 reveal that this rule originally extended coverage to violation of the fourth, fifth and sixth amendments of the Constitution of the United States. But, in 1977, the rule was revised to permit use of the suppression motion to test admissibility of evidence where the issue was the method by which the evidence was obtained.
This extension of the use of Rule 323 is logically consistent with constitutional claims as a due process claim...
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