Com. v. Sullivan

• Decision Date: 06 September 1990
• Citation: 581 A.2d 956,399 Pa.Super. 124
• Parties: COMMONWEALTH of Pennsylvania v. Timothy J. SULLIVAN, Appellant.
• Court: Pennsylvania Superior Court

Page 956

581 A.2d 956

399 Pa.Super. 124

COMMONWEALTH of Pennsylvania v.Timothy J. SULLIVAN, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 6, 1990.

Filed Oct. 31, 1990.

Ramy I. Djerassi, Philadelphia, for appellant.

Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com.

Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence.A jury convicted Timothy J. Sullivan, appellant, of driving under the influence of alcohol or controlled substance, 75 Pa.C.S.A. § 3731; homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735; three counts of homicide by vehicle, 75 Pa.C.S.A. § 3732; and involuntary manslaughter, 18 Pa.C.S.A. § 2504.Sullivan was acquitted of the charge of accidents involving death or personal injury, 75 Pa.C.S.A. § 3742.Sullivan was sentenced to a term of imprisonment of not less than three and one-half years to not more than seven years in a state correctional institution and was fined $5,000.00.

Sullivan calls upon us to determine: (1) whether the trial court committed error when it admitted into evidence his statement to the police, "Oh, I'm drunk;" and (2) whether the result of the blood alcohol test was properly admitted into evidence.We affirm.

On November 7, 1986, Sullivan was driving westbound on State Road in Bristol Township, Pennsylvania, when he struck the victim who was walking on the shoulder of the road.The victim died four days later.Sullivan drove off but subsequently returned to the accident scene after the police had arrived.Police Officer Hadzick noticed that the right front of Sullivan's vehicle was damaged and the right side of the windscreen was cracked.The vehicle also fit the description of the vehicle which witnesses stated had hit the victim.Sullivan asked the officer whether he had hit something.Officer Hadzick noticed an odor of alcohol emanating from Sullivan.When Sullivan could not produce his driver's license, Officer Hadzick asked him to exit his vehicle.

Sullivan staggered out of his vehicle, and Hadzick had to support him to prevent him from stumbling.Sullivan was unable to walk to the rear of his vehicle without assistance, his eyes were glassy, his speech was slurred, and he said, "I think I struck a dog."Officer Hadzick asked Sullivan to recite the alphabet; Sullivan could not.During this field sobriety test, Sullivan said, "Oh, I'm drunk."Sullivan was arrested and a blood alcohol test revealed a .47 blood alcohol level.

I.

Sullivan argues that because he was subject to a custodial interrogation and had not received Miranda warnings, his statement, "Oh, I'm drunk," should not have been admitted into evidence.We disagree.

We find that Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998(1989), is dispositive of this issue.In Toanone, we stated that:

[T]he United States Supreme Court has clarified that police need only give Miranda warnings while detaining a suspect by the side of a public highway when the suspect is actually placed under arrest or when the questioning of the suspect is so prolonged or coercive as to approximate the atmosphere of a station house interrogation.Thus, in the typical situation in which a motorist is temporarily ordered to remain by the side of his car, Miranda warnings are not essential.

Id. at 348, 553 A.2d at 1003(citingPennsyvlania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172(1988)).

Sullivan argues that he was not subject to an ordinary traffic stop; the relevant question is whether he was in custody.Id.(citingCommonwealth v. Gonzalez, 519 Pa. 116, 122-124, 546 A.2d 26, 29-30(1988)(plurality opinion)(other citations omitted)).Our review of the record reveals that he was not.Sullivan was not placed under arrest, forced to enter a police patrol car, subjected to coercion, nor subjected to prolonged questioning during the traffic stop.As in Toanone:

The defendant was asked a few question (sic) and directed to perform a few simple sobriety tests while standing at the side of his vehicle in a public area.Therefore, Miranda warnings were not required.

Id.Therefore, Sullivan's voluntary, spontaneous utterance of, "Oh, I'm drunk" after he could not recite the alphabet was properly admitted.

II.

Sullivan presents various reasons to support his assertion that the blood alcohol test result should not have been admitted.Initially, he argues that the Commonwealth's failure to produce the chemist who performed the test on his blood violated his Sixth Amendment right to confrontation.We disagree.In Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865(1989), we held that the right to confrontation was not violated when blood tests results were admitted without the presence of the technician who tested the blood.Id. at 355, 558 A.2d at 870.We reiterate:

... a blood-alcohol test is basic and routine, it is highly reliable and thus rises above mere opinion or conclusion to the level of medical fact.

Id. at 350, 558 A.2d at 867(citations omitted).

Sullivan also argues that since the Commonwealth did not show that the chemist who performed his blood alcohol test was unavailable to testify, admitting the result of that test was error.Again, we disagree.In Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359(1986)(plurality), we held that blood alcohol test results were properly admitted into evidence without the presence of the technician who performed the test.It is because a blood alcohol test is basic and routine and, therefore, highly reliable, that the...