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March 19, 1963


Appeal, No. 22, Feb. T., 1963, from judgment of Court of Quarter Sessions of Monroe County, Sept. T., 1961, No. 7, in case of Commonwealth of Pennsylvania v. John Tanchyn. Judgment affirmed.


Thomas J. Foley, Jr., with him J. Joseph McCluskey, and Rosser, McDonald, Marcus & Foley, for appellant.

James R. Marsh, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 200 Pa. Super. Page 149]


On April 29, 1961, about 12:05 a.m., an automobile collision occurred a short distance north of Stroudsburg on Route 611, a three-lane highway, involving the car of John Tanchyn, the appellant, and another car,

[ 200 Pa. Super. Page 150]

    whose occupants, Llewellyn F. Andre and Anna L. Evans, died without regaining consciousness as a result of injuries received in the collision. The appellant was removed by ambulance to the Monroe County General Hospital and admitted about 2:00 a.m. Dr. John L. Rumsey, who was taking night calls, treated the appellant. Dr. Rumsey ordered a sample of the appellant's blood to be taken for a blood test - hemoglobin, hematocrit, a white count and a differential count, and also ordered a urine examination. This was routine procedure with Dr. Rumsey at the hospital. John L. Williams, a technician, after rubbing appellant's arm with zephiran, a non-alcoholic antiseptic, withdrew 15 c.c.'s of blood from appellant at or about 2:30 a.m. After making the test, Williams placed the excess 10 c.c.'s in a glass tube with a stopper and a label and stored it in the blood bank refrigerator. During the taking of the blood the appellant was not totally unconscious but he was disoriented. Dr. Rumsey's treatment of the appellant consisted of inserting 33 sutures in appellant's face and neck. While performing his work Dr. Rumsey smelled alcohol on the appellant. In addition to the facial injuries, appellant suffered an injury to his chest, a condition known as pneumothorax, which involves a rupture of the lung and an accumulation of air in the chest cavity under pressure. The appellant was not completely coherent until the following day. Appellant was in the hospital for a period of two weeks.

In the morning the Monroe County coroner, who had been investigating the cause of the two deaths, requested Dr. Leitner, the hospital pathologist, who arrived at the hospital between 8:00 and 8:30 a.m., to have any excess portion of appellant's blood examined for alcoholic content. Because there are no facilities in Monroe County to make a blood alcohol test, on Monday, May 1, 1961, Dr. Leitner mailed the two test

[ 200 Pa. Super. Page 151]

    tubes, each containing 5 c.c.'s of appellant's blood, sealed and labeled with appellant's name, to Dr. Frederic Rieders, Chief Toxicologist for the City of Philadelphia, together with a letter requesting an analysis. Dr. Rieders made the analysis himself and testified at the trial that appellant's blood contained 0.20 per cent alcohol by weight, which indicated a degree of intoxication sufficient to decrease appellant's ability to operate an automobile safely and effectively. The appellant gave neither oral nor written permission to anyone either to take the blood from his body in the first instance or to remove the blood from the hospital to do a blood alcohol test. The coroner did not obtain a search warrant prior to requesting the blood test.

The sole question raised by this appeal is whether the court below erred in admitting into evidence the testimony concerning the blood alcohol test. Counsel for appellant argues that the admission of the testimony was a violation of the fourth Amendment of the Federal Constitution as it applies to the states through the 14th Amendment of the Federal Constitution.

The fourth Amendment to the United States Constitution states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Since Mapp v. Ohio, 367 U.S. 643, decided June 19, 1961, it is clear that the exclusionary rule arising out of the fourth Amendment as applied in the Federal courts is now applicable to the state courts. It is our opinion that there was no violation of the fourth Amendment in this case ...

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