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HomeMy WebLinkAbout97-0307 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : 97-0307 CRIMINAL TERM : (1) HOMICIDE BY VEHICLE WHILE : DRIVING UNDER THE INFLUENCE; (2) HOMICIDE BY VEHICLE : (3) DUI; (4) DRIVING ON ROADWAYS LANED FOR TRAFFIC (SUM); JACKIE RAY CAMBELL : (5) INVOLUNTARY MANSLAUGHTER IN RE: PA. R.C.P 1925 OPINION HOFFER, J.: On November 18, 1996, Defendant was involved in an auto accident which resulted in the death of another individual. After the accident, Defendant was transported to Carlisle Hospital where a sample of his blood was taken. A test determined that Defendant's blood alcohol concentration was .25 percent. Defendant filed an omnibus pre-trial motion seeking to suppress the blood test result. A hearing was held before the writer. The suppression court took judicial notice that both the Carlisle Hospital and the Pennsylvania State Police Laboratory in Harrisburg were approved facilities for blood testing. At the hearing, the person who drew Defendant's blood and the person who tested the blood testified. Michelle L. Smith, the phlebotomist who drew the blood, -~, testified at the 97-0307 CRIMINAL suppression hearing that she received training in phlebotomy and has worked in the field for four and one-half years. (Notes from Testimony, April 21, 1997, hereinafter "N.T.", page 9.) Ms. Smith told the court that she regularly draws blood for blood alcohol tests and that nothing out of the ordinary occurred when she drew Defendant's blood. (N.T., 10.) On cross examination, Ms. Smith testified that she put Defendant's name on the tube of blood, filled out all information required, sealed the blood test kit and handed it to the police. (N.T., 12.) Jonathan D. Weader, an experienced forensic scientist with the Pennsylvania State Police, testified that he received the sealed kit and there had been no tampering with the package. (N.T., 14.) On cross examination, Mr. Weader answered questions about the operation of the blood testing device and its ability to differentiate between different types of alcohol. (N.T., 17-23.) On May 2, 1997, Defendant's motion to suppress the results of the blood test was denied. Defendant proceeded to a jury trial held September 22, 1997 through September 24, 1997 before Judge J. Wesley Oler, Jr. At trial, Defendant renewed his objection to the admission of the blood test results. The trial court admitted the test results and Defendant was able to cross examine both Ms. Smith and Mr. Weader in front of the jury. The jury found the Defendant guilty of all crimes charged. 97-0307 CRIMINAL On October 31, 1997, Defendant filed a post trial motion. The motion was deemed denied pursuant to Pa. R. Crim. P. 1410. DISCUSSION Defendant argues that he should receive a new trial because the evidence of his blood test results should have been suppressed at the pre tdal hearing or should never have been admitted at trial. The court disagrees. The suppression court properly took judicial notice of the Carlisle Hospital and the Pennsylvania State Police Laboratory as approved blood testing facilities because they were listed in the Pennsylvania Bulletin. 45 Pa. C. S. A. Section 506. The propriety of the Defendant's blood test was amply supported by the testimony of Mr. Weader and Ms. Smith. The blood test results were therefore admissible. The Defendant had an opportunity to attack the testing procedures during cross examination. It was proper to allow the jury to decide how much weight to place on the blood test results in making their determination of Defendant's guilt or innocence. This court has consistently relied upon Commonwealth v. Brown, 428 Pa. Super. 587, 631 A.2d 1014 (1993), in rejecting Defendant's argument that his blood test results should have been suppressed. The court in Brown held that "publication in the Pennsylvania Bulletin and judicial notice thereof is sufficient to 97-0307 CRIMINAL satisfy the requirements of Section 1547(c)(2)." Id. at 595, 631 A.2d 1018. The Superior Court reached this conclusion because the procedures used by the Department of Health to approve a facility for testing are so comprehensive that a reliable and valid test is insured. Id._~. Defendant relies upon Commonwealth v. Culp, 378 Pa. Super. 213, 548 A.2d 578 (1988), to argue that his blood test results should not have been admitted into evidence because taking judicial notice of the approved testing facilities was not sufficient to support the validity of his blood test. His reliance is misplaced. As discussed in Commonwealth v. Brown, the Culp case exemplifies the situation where the party opposing the admission of blood test results could present evidence to rebut the inference created by the judicially noticed fact. Commonwealth v. Browq, 428 Pa. Super. 587, 595, 631 A.2d 1014, 1018 (1993). The Brown court said Culp reflects a scenario possible in any case in which blood alcohol tests are offered as evidence: A party may convince the court that even though a lab has state approval, the circumstances surrounding his or her test were such that the results are not reliable. We caution, however, that only specific allegations of testing errors, to which the trial court gives credence, and not general, boilerplate objections to the admission of test results, will mandate more than reference to the Pennsylvania Bulletin. Brown at 595-96, 631 A.2d at 1018. 97-0307 CRIMINAL In the instant case, the Defendant failed to convince the court that additional testimony was required to insure the reliability of his blood test. In his motion to suppress, Defendant made nothing more than general allegations of testing error. The motion to suppress the blood test results was properly denied. Although reference to the Pennsylvania Bulletin was sufficient, both the suppression court and the trial court heard testimony from Ms. Smith, the technician who drew Defendant's blood, and Mr. Weader, the forensic scientist who tested Defendant's blood. Defendant had the opportunity to minimize the impact of the test results on the jury during cross examination. 5