Com. v. Ebert, K. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH ALLEN EBERT,
Appellant No. 2594 EDA 2013
Appeal from the Judgment of Sentence entered July 5, 2013,
in the Court of Common Pleas of Lehigh County,
Criminal Division, at No(s): CP-39-CR-0004816-2012
BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.
MEMORANDUM BY ALLEN, J.: FILED OCTOBER 24, 2014
Keith Allen Ebert (“Appellant”) appeals from the judgment of sentence
entered after a jury found him guilty of two counts of driving under the
influence (“DUI”), and the trial court found him guilty of summary careless
driving and disorderly conduct.1
The trial court summarized the pertinent facts as follows:
[B]etween 3:30 PM and 4:00 PM on March 20, 2012, Jose
Cruz was at 201 North 2nd Street, sitting on a third floor
apartment balcony. Cruz’s 99 Chevy Silverado was parked
outside in the 200 block of North 2nd Street. Cruz observed a
blue minivan run a stop sign and hit his truck. Cruz yelled to the
driver that he was coming downstairs. When Cruz got
downstairs, the driver and van were gone. A neighbor called the
police. Approximately 5-10 minutes later, while Cruz was
waiting for the police to come, he saw the same van come back
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1
75 Pa.C.S.A. § 3802(a)(1), 3802(c), 3714(a), and 5503(a)(4).
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to the area and park behind his truck on an angle. Cruz
approached the passenger side of the van to speak with the
driver, later identified as [Appellant], but the driver exited the
van and walked away. [Appellant] left the van running, so Cruz
turned the ignition off and kept the keys until the police arrived.
Cruz watched [Appellant] walk east towards a church on Turner
Street, and observed [Appellant] urinate next to the church.
Officer Michael Beidelman, of the Allentown Police
Department was dispatched to the area of the 200 block of North
2nd Street for a motor vehicle accident. When he arrived [in] the
area, Officer Beidelman saw a blue Mercury Villager minivan
parked at an angle with its rear end sticking out into the
roadway. The van had damage to the left headlight/turn signal
area. Beidelman also saw a Chevy Silverado with minor damage
to the rear, driver’s side bumper. Beidelman spoke to Mr. Cruz
and [Appellant], and observed approximately 10-15 other adults
and children in the area. [Appellant] claimed the group stole his
wallet, but after looking inside the van, Beidelman discovered
the wallet under the passenger seat.
Officer Beidelman noticed [Appellant] was acting nervous,
had glossy [sic] eyes, and was unsteady on his feet. Beidelman
called for back-up. Officer Bull arrived and had [Appellant]
perform standardized field sobriety tests, including a Nystagmus
test, walk-and-turn, and one-leg stand. Biedleman observed the
walk-and-turn and one-leg stand tests and determined [that
Appellant] was under the influence and incapable of safe driving.
While handcuffing [Appellant], Beidelman detected a moderate
odor of alcohol. [Appellant] was taken to the booking center.
Beidelman observed [Appellant’s] blood [being] drawn and saw
the tubes sealed in an evidence bag. The blood was
subsequently sent to Health Network Laboratories for testing.
Nadine Koenig, a leading technologist in toxicology for
Health Network Laboratories testified as an expert in the field of
Forensic Toxicology. Ms. Koenig certified the results of
[Appellant’s] blood sample. Koenig noted the tubes in this case
were not sealed, but the evidence bag they were contained in
was sealed, and stated the sample would have been rejected by
the lab if it arrived with no seals on the tube or on the bag.
Additionally, Koenig described the steps taken with the sample
from its arrival at the lab through the testing procedure. Testing
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showed that [Appellant’s] blood alcohol concentration was .16
percent.
On June 5, 2013, following a jury trial, [Appellant] was
found guilty of two counts of driving under the influence.
Additionally, [the trial court] found him guilty of summary
careless driving and disorderly conduct. A presentence
investigation was prepared, and on July 5, 2013, [the trial court]
sentenced [Appellant] to an aggregate term of imprisonment of
1 year and 45 days to 5 years and 45 days in a State
Correctional Institution.
Trial Court Opinion, 2/26/13, at 1-3 (footnotes omitted).
Appellant filed a motion for reconsideration on July 15, 2012, which
the trial court denied on August 1, 2013. On August 30, 2013, Appellant
filed notice of appeal and the trial court directed him to comply with
Pa.R.A.P. 1925(b). Appellant however failed to comply and the trial court
transmitted the record to this Court. On January 10, 2014, this Court
remanded the case for Appellant to file a Pa.R.A.P. 1925(b) concise
statement within twenty-one days. Appellant complied on January 27, 2014,
and on February 26, 2014, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Appellant presents one issue for our review:
DID THE TRIAL COURT ERR WHEN IT DENIED [APPELLANT’S]
MOTION IN LIMINE WHICH REQUESTED THE SUPPRESSION OF
THE BLOOD TESTS BASED UPON [APPELLANT’S] CONTENTION
THAT THE TUBES CONTAINING [APPELLANT’S] BLOOD SAMPLE
WERE NOT SEALED WHEN DELIVERED TO THE TESTING
AGENCY AND THEREFORE WERE SUBJECT TO
CONTAMINATION?
Appellant’s Brief at 9.
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Preliminarily, we note that chain-of-custody is an evidentiary principle
that “refers to the manner in which evidence was maintained from the time
it was collected to its submission at trial.” In re D.Y., 34 A.3d 177, 185
(Pa. Super. 2011) (citations omitted). Therefore, where chain of custody
violations are alleged, suppression is not the appropriate remedy for such an
evidentiary challenge. Rather, as with the admission of any other evidence,
“[t]he admission of demonstrative evidence is a matter committed to the
discretion of the trial court”, and where there has been an improper chain of
custody, the trial court may make an evidentiary ruling that such evidence is
inadmissible. Commonwealth v. Hudson, 414 A.2d 1381, 1387 (Pa.
1980). See Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa. Super.
2011) (“Admission of evidence is within the sound discretion of the trial
court, and this Court will find the trial court abused its discretion only where
it is revealed in the record that the court did not apply the law in reaching its
judgment or exercised manifestly unreasonable judgment or judgment that
is the result of partiality, prejudice, bias, or ill will. In addition, it is the
exclusive province of the finder of fact to determine the weight of relevant
evidence.”).
The standard for establishing a chain of custody for admission of
physical evidence has been stated by our Courts as follows:
The admission of demonstrative evidence is a matter
committed to the discretion of the court ... Furthermore,
there is no requirement that the Commonwealth establish
the sanctity of its exhibits beyond a moral certainty ...
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Every hypothetical possibility of tampering need not be
eliminated; it is sufficient that the evidence, direct or
circumstantial, establishes a reasonable inference that the
identity and condition of the exhibit remained unimpaired
until it was surrendered to the trial court ... Finally,
physical evidence may be properly admitted despite gaps
in testimony regarding its custody....
Commonwealth v. Bartley, 576 A.2d 1082, 1085 (Pa. Super. 1990)
quoting Commonwealth v. Bruner, 564 A.2d 1277, 1285 (Pa. Super.
1989) and Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980).
Here, Appellant argues that the vials containing his blood were
unsealed when they arrived for testing at Health Network Laboratories.
Appellant’s Brief at 11-12. Appellant contends that Ms. Koenig, the
Commonwealth’s forensic toxicology expert, acknowledged that normal
protocol for the transportation and delivery of blood required the individual
vials to be sealed, marked with evidence tape, and then placed in a sealed
evidence bag. Id. Because the vials were not sealed and marked with
evidence tape when delivered to the laboratory, Appellant contends that the
vials may have been contaminated or tampered with (even though the
evidence bag that they arrived in was sealed) and that the blood samples
were therefore unreliable and should have been excluded. Id.“When determining whether blood alcohol test results were properly
admitted, we are primarily concerned with [1] the qualifications of the
person performing the blood test and the equipment used; [2] whether the
laboratory was licensed and approved by the Department of Health, and [3]
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the chain of custody.” Commonwealth v. Sullivan, 581 A.2d 956, 959
(Pa. Super. 1990).
Appellant does not contest the qualifications of the persons performing
the blood test, the equipment used, or whether the facility was approved by
the Department of Health. Nor does Appellant dispute the testimony of
Officer Beidelman, who observed Appellant’s blood being drawn and placed
in a sealed package2, together with the testimony of Ms. Koenig, the
Commonwealth’s forensic toxicology expert, who attested to an unbroken
chain of custody, testifying that after Officer Beidelman personally observed
Appellant’s blood being drawn at the Lehigh Valley Booking Center, the blood
samples were transmitted to the Health Network Laboratory by a courier
who picked up the blood samples and transported them to the laboratory.
N.T., 6/4/13, at 62; N.T., 6/5/13, at 17-18.
With regard to Appellant’s assertion that the blood vials were not
individually sealed, “[a]llegations of problems in the chain of custody go to
the weight of the evidence, and it is [the fact-finder’s] duty to balance these
allegations against the reasonable inference of an unaltered chain of
custody.” Commonwealth v. Alarie, 547 A.2d 1252, 1255 (Pa. Super.
1988). Moreover, “[t]here is no need for the Commonwealth to prove
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2
See Commonwealth v. Mahaney, 540 A.2d 556, 560 (Pa. Super. 1988)
(“when the police observe the technician drawing the blood, the
Commonwealth is not compelled to call the technician”).
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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. Allen, 575 A.2d 131, 134 (Pa. Super. 1990) (citations
omitted). Here, there is no evidence in the record to support Appellant’s
claim that the blood samples were tampered with or contaminated. The trial
court correctly stated that “any gaps in the chain of custody go towards the
weight of the evidence, not its admissibility.” Trial Court Opinion, 2/26/13,
at 4. Clearly the jury in this case found credible the testimony of Officer
Beidelman and Ms. Koenig that the vials were in a sealed evidence bag
which had not been disturbed, and concluded that the failure to seal the
individual vials did not undermine the reliability of the results of the blood
alcohol test. We will not disturb such determinations on appeal.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2014
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