Com. v. Dagnon
| Decision Date | 19 March 1992 |
| Citation | 605 A.2d 360,413 Pa.Super. 281 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. John DAGNON. |
| Court | Pennsylvania Superior Court |
Robert F. Hawk, Asst. Dist. Atty., Butler, for Com., appellant.
Alexander H. Lindsay, Jr., Butler, for appellee.
Before BECK, TAMILIA and HESTER, JJ.
The Commonwealth appeals from the order entered in the Court of Common Pleas of Butler County on February 8, 1991, which suppressed the results of an alcohol content test conducted on the blood serum of appellee, John Dagnon. For the reasons set forth below, we reverse that order and remand for further proceedings.
The procedural history of this case may be summarized as follows. On May 2, 1990, while investigating a two-vehicle accident that resulted in several injuries and a death, Patrolman Daniel Hahn of the Cranberry Township Police Department utilized a warrant to search the hospital records of appellee, the driver of one of the vehicles. During the course of that search, the patrolman discovered that hospital personnel had performed an alcohol content test on appellee's blood serum shortly after the collision and that this test revealed a blood alcohol content in excess of .10%. Appellee subsequently was arrested and charged with homicide by vehicle, homicide by vehicle while driving under the influence, involuntary manslaughter, reckless driving, driving while under the influence, and driving on roadways laned for traffic in violation of Section 3309 of the Pennsylvania Motor Vehicle Code.
On October 10, 1990, appellee filed an omnibus pretrial motion seeking, inter alia, the suppression of the serum test results. Four months later, after conducting an evidentiary hearing, the trial court determined that only the results of alcohol content tests conducted on whole blood are admissible into evidence in prosecutions for driving while under the influence. In addition, the court determined that the Department of Health (the "Department"), in contravention of its statutorily-imposed duty, neglected to promulgate rules approving procedures and equipment for blood alcohol tests and that the Commonwealth improperly failed to both investigate and disclose to the defense the treatment that appellee had received prior to the withdrawal of the blood utilized in the analysis. Accordingly, it suppressed the challenged evidence. This timely Commonwealth appeal followed.
Preliminarily, we note that the Commonwealth, in conformity with the dictates of Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), has certified that the trial court's order substantially handicaps its prosecution of appellee. Accordingly, we conclude that the present appeal is properly before us, see Commonwealth v. Reveria, 387 Pa.Super. 196, 563 A.2d 1252 (1989), and address its merits.
Our standard for reviewing the propriety of a trial court's decision to suppress evidence is well-established. In Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990), we discussed that standard and stated:
Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Robinson, 518 Pa. 156, 159-160, 541 A.2d 1387, 1389 (1988), citing, Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). If the evidence supports the court's factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). It is for the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985).
Keeping these principles in mind, we must examine the evidence presented during the course of the suppression hearing and determine whether the law supports the trial court's suppression decision. An examination of the record reveals the following facts.
On the evening of April 15, 1990, Patrolman Daniel Hahn of the Cranberry Township Police Department arrived on the scene of a head-on collision, observed appellee in the driver's seat of one of the damaged vehicles, and discerned the odor of alcohol on his breath. Appellee subsequently was transported to Alleghany General Hospital.
At approximately 1:40 a.m. on April 16, 1990, a specimen of appellee's blood was drawn by hospital personnel. Several hours later, in conformity with Allegheny General's usual procedure, a laboratory technician spun the specimen in a centrifuge, separated the serum from the solid material, and, utilizing an enzymatic process, analyzed the serum for alcohol content. This analysis, which was conducted solely for diagnostic purposes, revealed an alcohol reading of .186%. As the results of serum tests generally are higher than those utilizing whole blood, the technician compensated for this effect by dividing the reading by 1.18, an average factor used for this purpose. Consequently, the test revealed a blood alcohol content of .158%.
On May 2, 1990, Patrolman Hahn obtained a warrant to search appellee's hospital records. While conducting the authorized search, he discovered that the serum test had been performed and that it revealed a blood alcohol content in excess of .10%.
We initially consider whether the trial court properly determined that only the results of alcohol tests conducted on whole blood are admissible into evidence in prosecutions for driving under the influence and that the results of the test performed on appellee, therefore, were subject to suppression. In this regard, we note that the question of the admissibility of blood alcohol tests in DUI cases is governed by 75 Pa.C.S. § 1547(c). In pertinent part, that provision states:
In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 [] or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's blood, as shown by chemical testing of a person's ... blood ..., which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
....
(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 ... 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."
75 Pa.C.S. § 1547(c) (footnote omitted).
Although 75...
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State v. Braden
...v. Carol H. Dougherty, 1989 WL 1142, Sullivan County No. 827 (Tenn.Crim.App., January 9, 1989, Knoxville). See Commonwealth v. Dagnon, 413 Pa.Super. 281, 605 A.2d 360 (1992) (result of blood test performed on serum rather than whole blood is admissible after conversion to whole blood alcoho......
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Com. v. Moore
...serum tests to be received in evidence. An identical argument, however, was rejected by the Superior Court in Commonwealth v. Dagnon, 413 Pa.Super. 281, 605 A.2d 360 (1992). At trial, a toxicologist testified that appellant's blood alcohol level at the time of testing was 0.14%. He also tes......