Commonwealth v. Persico

• Court: Pennsylvania Superior Court
• Writing for the Court: BECK, J.
• Citation: 343 A.3d 311
• Docket Number: 2025 EDA 2024
• Decision Date: 07 October 2025
• Parties: COMMONWEALTH of Pennsylvania v. Joseph L. PERSICO Appellant

343 A.3d 311

COMMONWEALTH of Pennsylvania

v.Joseph L. PERSICO Appellant

No. 2025 EDA 2024

Superior Court of Pennsylvania.

Argued April 23, 2025

Filed July 29, 2025

Reargument Denied October 7, 2025

West Codenotes

Recognized as Unconstitutional

75 Pa. Cons. Stat. Ann. § 3755

Appeal from the Judgment of Sentence Entered February 27, 2024, In the Court of Common Pleas of Carbon County, Criminal Division, at No(s): CP-13-CR-0000121-2020

Robert M. Buttner, Scranton, for appellant.

Kara M. Beck, Assistant District Attorney, Jim Thorpe, for Commonwealth, appellee.

BEFORE: PANELLA, P.J.E., BECK, J., and FORD ELLIOTT, P.J.E.^*

OPINION BY BECK, J.:

Joseph L. Persico (“Persico”) appeals from the judgment of sentence entered by the Carbon County Court of Common Pleas (“trial court”) after a jury convicted him of homicide by vehicle while driving under the influence (“DUI”), homicide by vehicle, DUI – general impairment, DUI – highest rate of alcohol, driving the wrong way, reckless driving, involuntary manslaughter, simple assault, and recklessly endangering another person.¹ Persico challenges the denial of his motion to suppress the results of a hospital blood draw that occurred following a motor vehicle accident. He argues that the Commonwealth failed to establish that hospital personnel conducted the blood draw for independent medical purposes. Because we agree with Persico that his blood draw was illegal, we vacate his judgment of sentence and remand this matter to the trial court.

Facts and Procedural History

We summarize the evidence presented at the suppression hearing as follows. On the night of November 6, 2018, at approximately 11:54 p.m., Trooper John P. Blaski of the Pennsylvania State Police (“PSP”) received a call reporting a three-vehicle crash in the northbound lanes of Interstate 476 (“the Northeast Extension”) near Parryville Borough, Carbon County. At 12:13 a.m., Trooper Blaski arrived at the scene where he observed a white Audi A4 (“Audi”) facing the wrong direction (southbound) against the median barrier. Through his investigation of the accident, Trooper Blaski ascertained that the driver of the Audi had been driving southbound in the northbound lanes of the Northeast Extension when it struck, head-on, a green Honda Civic that was driven by Paul Gerrity (“Gerrity”). The impact caused Gerrity’s vehicle to spin into a blue Toyota Corolla, which was operated by Pan Tso (“Tso”). Carbon County Deputy Coroner Robert Miller pronounced Gerrity dead at the scene; Tso received medical treatment for his injuries, but ultimately survived.

By the time Trooper Blaski had arrived at the scene, paramedics had already transported the driver of the Audi to Lehigh Valley Hospital – Cedar Crest (“LVHCC”). After running the license plate of the Audi through his computer and communicating with paramedics, Trooper Blaski was able to verify that Persico had been the driver of that vehicle. Trooper Blaski remained at the scene until his shift ended at approximately 5:00 a.m.

Persico arrived at LVHCC at 12:32 a.m. Shortly after Persico’s arrival, hospital personnel ordered several blood and urine tests, which included blood and urine tests for ethanol. Raymond Garcia (“Garcia”) of the LVHCC laboratory drew Persico’s blood at 1:01 a.m. Chain of custody documentation for Persico’s blood draw indicated that the blood sample for his ethanol level was placed in grey-top vial and sent to the LVHCC toxicology laboratory at 1:28 a.m., where it was sealed and locked, remaining untested. The toxicology laboratory then sent this blood sample to secure storage at Health Network Laboratory (“HNL”) at 4:10 a.m., where it was placed in long-term storage, again untested. In fact, at no point on the night of the accident did either LVHCC or HNL analyze Persico’s blood to determine his blood alcohol content (“BAC”).

As Trooper Blaski remained at the scene of the accident for the entire night, he never went to the hospital to speak with Persico or any medical personnel, and did not request a blood draw. Two other troopers went to the hospital, but those troopers were unable to speak with Persico as he underwent medical treatment. According to Trooper Blaski’s testimony, to the best of his knowledge, neither of those two troopers requested that hospital personnel draw Persico’s blood.

In the days following the crash, Trooper Blaski interviewed paramedics Jared Yeastedt (“Yeastedt”), Casey Rich (“Rich”), and Matthew Derkosh (“Derkosh”), each of whom treated Persico on the night of the crash. Yeastedt told Trooper Blaski that Persico was incoherent, dazed, and confused. Rich and Derkosh told Trooper Blaski that Persico could not remember anything about the crash or anything else that happened that night. Rich also informed Trooper Blaski that he smelled a faint odor of alcohol on Persico. Both Yeastedt and Derkosh, however, told Trooper Blaski that they did not smell alcohol on Persico.

On November 29, 2018, Corporal Matthew Hunter of the PSP was conducting a search pursuant to a warrant of Persico’s Audi when he discovered a half-full 375-milliliter bottle of vodka in the passenger compartment. Consequently, on December 12, 2018, Trooper Blaski obtained two search warrants—one for HNL to analyze Persico’s secured blood sample, and another to obtain Persico’s medical records from LVHCC. On December 14, 2018, over a month after the accident, HNL analyzed Persico’s blood sample and determined that his BAC was .22 at 1:01 a.m. on the night of crash.

On January 13, 2020, the Commonwealth filed a criminal information, in which it charged Persico with the aforementioned crimes. On October 29, 2020, Persico filed a pretrial motion to suppress the results of his blood draw. Persico alleged that his blood draw violated section 3755 of the Pennsylvania Vehicle Code, 75 Pa.C.S. § 3755, and his rights under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. See Suppression Motion, 10/29/2020, ¶¶ 13-16; Brief in Support of Suppression Motion, 4/19/2021, at 12 (unpaginated). On March 2, 2021, the suppression court held a hearing on Persico’s motion during which Trooper Blaski testified as the sole witness. At the conclusion of the hearing, the suppression court allowed the parties time to submit briefs in support of their respective arguments.

Ultimately, on June 29, 2021, the suppression court denied Persico’s motion. The court concluded that because the hospital, as a private actor, drew Persico’s blood on its own initiative and not at the request of police or any other government official, the blood draw did not implicate the Fourth Amendment to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution. Suppression Court Order, 6/29/2021, at 10. The suppression court further found that Persico’s blood draw did not implicate section 3755 because there was no evidence to suggest that the hospital drew the blood for any reason other than independent medical purposes. Id.

[1–6] A jury convicted Persico on October 18, 2023. On February 27, 2024, the trial court sentenced Persico to an aggregate term of three to six years in prison. Persico filed timely post-sentence motions that the trial court subsequently denied. Persico then timely appealed to this Court. He presents the following issue for review:

1. Did the trial court err in failing to suppress the blood sample taken from [Persico] and all medical records containing the results of chemical blood testing of the blood sample, which constituted fruit of the poisonous tree, where the search and seizure of [Persico]’s blood sample was performed without a search warrant, probable cause, or the consent of [Persico] in violation of the United States and Pennsylvania Constitutions?

a. Did the trial court err in failing to suppress an illegally obtained blood sample and chemical blood test results, contained in the records and report generated by [HNL], where the Commonwealth failed to sustain its burden of proof at the suppression hearing by failing to establish that the blood draw was solely for medical purposes or in compliance with 75 Pa.C.S. [§] 3755?

Persico’s Brief at 3.

Our standard of review in addressing a challenge to the denial of a suppressionmotion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the court’s legal conclusions are erroneous. The suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.

Moreover, appellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre[]trial motion to suppress.

Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021) (citation omitted).

Persico’s Arguments

Persico argues that his blood draw violated his rights under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution, and the trial court therefore erred in denying his motion to suppress the results of the blood draw. See Persico’s Brief at 14-35. Specifically, he contends that there was no evidence to support the trial court’s conclusion that hospital personnel drew his blood for independent medical purposes. Id. at 30-34. Rather, Persico maintains that all the evidence the Commonwealth presented demonstrates that...