Commonwealth v. Allen ( 1990 )

DEL SOLE, Judge:

Daniel Allen, Appellant, was convicted of Driving Under the Influence (DUI), 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). Post-verdict motions were denied and Allen was sentenced. On appeal he raises five issues. Because all of the issues are meritless, we affirm the trial court’s judgment of sentence.

Allen’s conviction for DUI was the culmination of a complicated procedural process. Allen was arrested for DUI under 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). Police took him to Ellwood City Hospital where a blood sample was taken. The sample was given to the arresting officer who took it back to the Ellwood City Police Station and placed it in a refrigerator. The following day another officer took the only blood sample in the police station refrigerator to St. Francis Hospital for chemical testing. The hospital reported that the blood alcohol level in the sample was 0.16%.

At a preliminary hearing, the arresting officer attempted to introduce the blood test results into evidence. Allen’s attorney objected, asserting that the officer did not lay a proper foundation to establish that St. Francis was an approved laboratory for chemical testing in DUI cases. The District Justice sustained the objection and the blood test results were not admitted into evidence.

The arresting officer then moved to withdraw the complaint against Allen which was granted. All of the charges against Allen were withdrawn and he was discharged. Notice of the withdrawal was sent to Allen and he was informed that the complaint against him would be re-filed. Three days later a second complaint was filed against Allen and he received service of both the new complaint and a summons. Despite defense counsel objections, a second preliminary hearing was held at which a prima facie case against Allen was established. He was bound over to court.

Allen filed a pre-trial omnibus motion challenging the Commonwealth’s procedures regarding the filing of the second complaint. The trial court ordered the case dismissed. Twenty-two days later the court amended its order, withdrew the dismissal of the case against Allen and dismissed the omnibus motion. Allen filed a petition for a writ of habeas corpus and/or a motion to dismiss and/or strike the order of court, arguing that the court lacked authority to issue the second order withdrawing the dismissal of the case without prior notice to the parties. The basis for this argument was 42 Pa.C.S.A. § 5505. A hearing was held, and although the Commonwealth agreed with Allen’s position, the trial court denied his petition.

At a non-jury trial, Allen argued that no evidence was presented to show that Ellwood City Hospital was an approved laboratory for withdrawing blood samples, the blood withdrawal was not properly supervised, the procedures used for withdrawal and transportation of the blood were improper, the laboratory technician was not supervised or qualified to draw blood and the chain of custody of the blood sample was broken. Despite his arguments, the blood sample was admitted into evidence and Allen was found guilty of both charges of DUI.

The first issue raised by Allen on appeal is whether he was entitled to have the charges against him dismissed because the initial charges against him were withdrawn and the second complaint was filed without a re-arrest. We hold that there was no need for the Commonwealth to re-arrest Allen.

In a court case, the issuing authority may, in its discretion, issue a summons or a warrant of arrest if the offense charged is punishable by a sentence of more than one year and less than five years in prison. Pa.Rules of Crim.Proc., Rule 102(c). Driving under the influence is a misdemeanor of the second degree. It is punishable by a sentence of not more than two years in prison. 18 Pa.C.S.A. § 106(b)(7). Consequently, the service of a summons on Allen was a proper method to reinstitute the charges against him. The fact that this service was enough to make Allen appear at the subsequent preliminary hearing belies the argument that a second arrest was required. There is no authority which requires the Commonwealth to re-arrest a person in order to begin a subsequent prosecution for the charge of DUI.

The second issue is whether the trial court lacked the authority to reinstate the charges and withdraw the court ordered dismissal within thirty days of the initial order, without prior notice to the parties. This issue is also meritless. The statute Allen bases his argument on is 42 Pa.C.S.A. § 5505. This statute reads:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within thirty days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or filed.

42 Pa.C.S.A. § 5505

The statute contains no requirement that the court give the parties prior notice before modifying or withdrawing an order. Allen has presented us with no authority which would require such a reading of the statute. According to the statute, a court must notify the parties when it modifies or rescinds an order, but this notice does not have to be prior to the modification.

The third issue raised by Allen is whether the trial court erred in introducing evidence of the blood test at trial because the chain of custody was broken. We say no. The Commonwealth presented testimony which showed who had possession and control of the blood sample from the time it was withdrawn from Allen to the time it was tested and brought to court. There is no need for the Commonwealth to prove beyond a doubt the sanctity of a blood sample after it is withdrawn from a driver. The Commonwealth must simply establish a reasonable inference that the sample was unimpaired until it was brought to court. Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975).

The fourth issue raised by Allen is whether the trial court erred in introducing the blood test results because the blood sample was not withdrawn at an approved clinical laboratory, the blood test was not properly supervised and the test was not administered by a laboratory technician. Again, we hold that the trial court did not err.

Allen was convicted of 75 Pa.C.S.A. § 3731(a)(1), driving or being in the actual physical control of a vehicle while “under the influence of alcohol to a degree which renders the person incapable of safe driving;” and 75 Pa.C.S.A. § 3731(a)(4), driving or being in actual physical control of a vehicle while “the amount of alcohol by weight in the blood of the person is 0.10% or greater.” In order to support a conviction under 3731(a)(4), the Commonwealth may present tests performed on a defendant’s blood or breath if the “tests were conducted by qualified persons using approved equipment____” 75 Pa.C.S.A. § 1547(c). Specifically,

Chemical tests of blood or urine 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.” 75 Pa.C.S.A. § 1547(c)(2).

The trial court wrote that:

[w]hile the Ellwood City Hospital was not proven to be a technical laboratory licensed by the Pennsylvania Department of Health or its staff certified under the Clinical Laboratory Act, 35 P.S. §§ 2151-2165, so as to qualify that hospital and its staff to do blood testing under 75 Pa.C.S.A. § 1547, the Court finds from the testimony presented and by way of judicial notice (P.L.E.Evidence §§ 1-14) that it is an established clinical laboratory whose staff is qualified to take blood samples.

Trial Court opinion at p. 8.

In the past, this court has held that § 1547(c) and its corresponding regulations “focus on the person performing the blood testing and the equipment used, not the technician drawing the blood.” Commonwealth v. Mahaney, 373 Pa.Super. 129, 136, 540 A.2d 556, 559 (1988). If a driver is taken to a hospital for a blood sample in a DUI case, the Commonwealth must show that the blood sample was withdrawn by a hospital employee who was qualified to take blood samples. That employee does not have to meet the requirements of 75 Pa.C.S.A. § 1547(c)(2). The Commonwealth made this showing at trial and the trial judge properly accepted the person who withdrew the blood from Allen as qualified.

The fifth and final issue raised by Allen is whether the verdict was against the weight of the evidence and whether the evidence was insufficient as a matter of law. The trial court reviewed the testimony of the police officers and one other witness:

Officer Yoho testified that when he arrived at the scene of the accident on August 27, 1988, during the early morning hours, he saw Allen’s vehicle and two other vehicles, all of which were damaged to some degree. He also testified that the other two vehicles were resting partly on the sidewalk and partly on the roadway. Officer Yoho further testified that, in observing Allen, he noticed Allen had blood-shot eyes and slurred speech and possibly an injured right hand. After administering a field sobriety test, it was Officer Yoho’s opinion that Allen performed unsatisfactory and did not pass the test. Officer Yoho also testified that Allen at the scene of the accident explained to him (Officer Yoho) that he (Allen) was driving his truck around the bend and lost control of it.

Officer David Mitchell also testified regarding the damaged vehicles. He observed Allen’s truck at rest in the east bound lane of Lawrence Avenue and the other two vehicles pushed onto the curb. When Officer Mitchell arrived at the scene, he observed Allen standing next to his red pickup truck and, after approaching Allen, noticed the odor of alcohol on Allen’s breath. Officer Mitchell also testified of observing Officer Yoho administering a field sobriety test to Allen which, according to Officer Mitchell, Allen “failed.”

Now, as to Henry Allman’s testimony, he stated that, on the day in question, he was watching television and heard a loud crash in front of his house. As he immediately exited his residence, he observed his truck on the side walk and his sister’s car pushed forward in front of his truck. He also testified that a red pickup truck, with Allen seated in it on the driver’s side, was behind his (Allman’s) truck. All three vehicles were damaged according to Henry Allman’s testimony Henry Allman then testified that he went over to Allman and asked if he was injured and invited Allen into his house. Henry Allman testified that he noticed an order (sic) of alcohol about Allen’s person and that Allen was “shook up.”

Trial Court opinion at pp. 15-16.

In order to hold that a verdict was against the weight of the evidence, it must be clear from the record that the verdict shocks this court’s sense of justice. Commonwealth v. Hamilton, 376 Pa.Super. 404, 546 A.2d 90 (1988). This testimony, along with the fact that the blood sample taken from Allen showed that his blood alcohol level was 0.16%, easily supports the conviction of Allen of 75 Pa.C.S.A. § 3731(a)(1) and (4). There was nothing shocking about this verdict. Therefore, we hold that the verdict was not against the weight of the evidence.

When deciding whether the evidence was insufficient to support the verdict, this court must consider the evidence and all the inferences to be drawn from the evidence, in a light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983). Given the evidence summarized above, and Allen’s blood alcohol level, we hold that there was sufficient evidence to prove beyond a reasonable doubt that Allen was driving while under the influence of alcohol under 75 Pa.C.S.A. § 3731(a)(1) and (4).

Judgment of sentence affirmed.

CIRILLO, President Judge, files a concurring and dissenting opinion.