No. 1790 October Term 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Chester County, Criminal Division at No. 054077.
Robert J. Edelmayer, Norristown, for appellant.
Janet L. Crawford, Assistant District Attorney, West Chester, for appellee.
Price, Spaeth and Lipez, JJ.
[ 277 Pa. Super. Page 31]
Appellant was convicted by a jury of driving under the influence of liquor. Act of April 29, 1959, P.L. 58, § 1037, 75 P.S. § 1037, repealed by the Act of June 17, 1976, P.L. 162, No. 81, § 7 (effective July 1, 1977).*fn1 On appeal the principal issue is whether the evidence was sufficient to support the conviction.
At trial the Commonwealth produced five witnesses. Their testimony may be summarized as follows.
On December 31, 1976, appellant and Bill Hawley went to Bruce Cassidy's home between 9:00 and 10:00 p. m. After some discussion, Cassidy, Hawley, appellant, and Mark Lucas (who was also at Cassidy's home) left in two cars for a friend's house approximately five minutes away. Upon arrival, the four deliberated for twenty minutes whether to go inside the friend's house, decided not to, and left for the house of Ted Martin, another friend. They arrived at Martin's between 10:30 and 11:00 p. m. and went inside for a few drinks. Appellant brought a six-pack of beer and some champagne. At approximately 12:30 a. m., Cassidy and Hawley left with appellant to go to the Valley Forge Sports Garden, a five minute drive away. Appellant was driving an Opel Manta, a sportscar. As appellant was proceeding
[ 277 Pa. Super. Page 32]
along Swedesford Road, Cassidy warned him that they were nearing a sharp "S" turn in the road, and asked appellant to slow down. Appellant did slow down, but as he entered the first part of the turn (consisting of a sloped 45 degree curve) the car skidded sideways on a patch of ice on the roadway, hit a guardrail, and was torn in half. Cassidy stated that based upon his observations on the night of the incident, appellant was not under the influence of liquor; he was not stumbling and did not have difficulty talking. Cassidy also stated, however, that he definitely saw appellant drink one sixteen-ounce can of beer and a glass of champagne before the accident, although, he said, he was not "studying" appellant during this time.
James Carbo, an officer in the Tredyffrin Township Police Department, arrived at the scene of the accident at approximately 12:25 a. m. He observed a car that had been driven off the road into a guardrail and had been torn into two sections. The road was dry except for small patches of ice where the accident occurred. Hawley had been thrown out of the car and was lying along the guardrail. Appellant had a laceration on his head. When Carbo asked appellant whether he needed first aid, appellant indicated that he was mainly concerned over his passengers' well-being. Although it was zero degree weather and the wind was blowing, appellant, who was dressed only in a shirt and slacks (having given his heavy coat to Hawley), complained neither of the cold nor his injury. Carbo stated that appellant appeared to be slightly confused and extremely excited, but that these symptoms were quite common in persons involved in serious automobile accidents. Carbo also stated that appellant had no difficulty in holding a conversation, and talked with people who were at the scene. Although Carbo noticed the odor of alcohol on appellant's breath, and had "concentrated sight" of appellant for five minutes, Carbo had no opinion based upon his observations as to whether appellant was under the influence of liquor.
James Pierson, Traffic Safety Officer on the Tredyffrin Township Police Department, responded to a call that an
[ 277 Pa. Super. Page 33]
accident had occurred on Swedesford Road. Upon discovering several empty sixteen-ounce beer cans in appellant's car, Pierson proceeded to the emergency room of the Paoli Hospital, where appellant and his passengers had been taken for treatment. After speaking with appellant, Pierson asked that he consent to a blood alcohol test. Appellant signed a consent form, and blood was drawn. Pierson, who observed the drawing of blood, described the procedure as follows. At approximately 2:42 a. m., a laboratory technician washed appellant's arm with a soap and water solution, tied a band around the arm, and drew two tubes of blood. The technician then labeled the tubes and signed a custody form showing that the tubes were given to Pierson. Pierson took the tubes, wrote his initials and the date on them, and placed them in his coat pocket. Pierson then drove appellant and Cassidy to their homes, went to the police station, and called Upjohn Clinical Laboratories to make arrangements to deliver the tubes to the laboratories. When told that no one was present at the laboratories to receive the tubes, Pierson went home and placed both tubes in his refrigerator sometime between 3:00 and 4:00 a. m. On January 2, Pierson called the laboratories again, and was informed that he could deliver the tubes the next day. On January 3, he delivered the tubes to an employee of Upjohn Laboratories. To Pierson's knowledge, no one touched or tampered with the tubes while they were in his refrigerator (indeed he said his wife and children were "petrified" that he was keeping human blood in the refrigerator), and no power shortages occurred. Pierson also testified that he observed appellant for an hour at the hospital, and during this time appellant was alert, sitting up straight, conversing intelligently, not vomiting, and not stuporous. Although Pierson smelled the odor of alcohol on appellant's breath, he formed no opinion as to whether appellant was under the influence of liquor. Pierson did not conduct field tests on appellant to determine his sobriety, and was "shocked" when he learned the high alcohol reading of the tests performed on the blood samples.
[ 277 Pa. Super. Page 34]
Elizabeth Spratt, a laboratory technician at Upjohn Laboratories, received the blood samples from Pierson. Upon receipt, she placed the samples in the toxicology refrigerator in a locked compartment to which only five technicians had access. Spratt tested the samples herself, and described in detail the methodology used. The salient facts are that she set up the test twice, that the results correlated well, that the tests were set up separately from her other work, that the standard solution used in the tests was checked every month even though the solution was good for six months, that the machine on which the tests were made was serviced every three months, and that she could not have tested the wrong samples because in recording the results she relied on the information that had been placed on the tubes themselves. Spratt had not received any complaints at Upjohn Laboratories concerning human error in specimen testing, and her results were checked by her supervisor, Dr. Phillips. Her tests indicated that the blood samples given to her by Pierson contained .275% alcohol by weight. When asked what symptoms a person the size of appellant would show with this amount of alcohol in his bloodstream, Spratt replied that he "should maybe be more relaxed than normal," that his "walking patterns might be altered," "[h]is speech might be altered," "[h]is ability to focus might also be changed . . . ." Spratt acknowledged, however, that she lacked personal experience regarding the symptomatology of inebriated persons, her experience being limited to laboratory work except for "a few movies that show giving people increments of alcohol and then having a driving test." Spratt testified that prolonged exposure to room temperature will increase the alcoholic content of blood samples, and that if someone carried a sample close to his body for several hours, a breakdown in the blood composition might occur.
Dr. Richard N. Phillips, head of the toxicology and endocrinology section of Upjohn Clinical Laboratories, reviewed Spratt's test results and found them to be accurate. He testified that based upon the facts adduced at trial, he ...