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filed: September 18, 1985.


Appeal from the judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal No. 3041-83.


Robert John, Hatboro, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Com., appellee.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.

Author: Spaeth

[ 346 Pa. Super. Page 81]

This is an appeal from judgment of sentence for homicide by vehicle while driving under the influence of alcohol or a controlled substance, involuntary manslaughter, reckless endangerment, and driving under the influence. Appellant argues (1) that the trial court erred in refusing to suppress the results of a blood alcohol test performed by police on a sample of his blood; (2) that the trial court erred in refusing to permit a witness to testify; (3) that the verdict was against the weight of the evidence; and (4) that the mandatory sentencing provisions of 75 Pa.C.S. ยง 3735 are unconstitutional. We affirm.


The standard by which we must review the trial court's refusal to suppress the results of the test of appellant's blood alcohol level is that we "will only consider the evidence of the prosecution and so much of the evidence for the defense as, read in the context of the record as a whole, remains uncontradicted." Commonwealth v. Benedetto, 316 Pa. Super. 134, 136, 462 A.2d 830, 831 (1983) citing Commonwealth v. Leveille, 289 Pa. Super. 248, 433 A.2d 50 (1981). So viewed, the evidence was as follows.

Shortly after midnight on August 13, 1983, appellant, driving his car in Hatboro, Pennsylvania, with his brother Judson as a passenger, collided head-on with a car driven by Gary McMillan. Katherine Waldron, McMillan's passenger, died as a result of injuries suffered in the collision. Sergeant Beadling of the Hatboro Police Department arrived at

[ 346 Pa. Super. Page 82]

    the scene three to five minutes after receiving a call, N.T. 1/23/84 at 8, and found appellant slumped over in the front seat. The sergeant testified that he "couldn't question [appellant] about the nature of his injuries, [and therefore] decided that it was best to leave [appellant] where he was, . . . rather than exaggerating any injuries that [he] might not know about." Id. at 10. The sergeant "notice[d] an odor of alcohol on or about [appellant's] person," but appellant "was in a semi-conscious condition and did not respond to [the sergeant's] speaking to him initially." Id. at 14. The sergeant radioed the police dispatcher to call local hospitals to request that a blood sample be withdrawn from appellant when he arrived for treatment. Id. at 14-15, 29-30. The sergeant explained that he made this request because:

We did have serious injuries. And as part of an investigative procedure, and because I felt Mr. Cieri might have been drinking, I requested the defendant be done. He was in no condition to submit to a breathalyzer test. So the withdrawal of blood was the only method I had.

Id. at 15.

Rescue personnel transported appellant to Abington Memorial Hospital for treatment. For the next two hours, the police continued to investigate the accident and interview witnesses. In the course of the investigation they discovered evidence that marijuana had been used recently in appellant's car. Id. at 31-32.

Nurse Laird, the nurse on duty in the emergency room of Abington Memorial Hospital, testified that appellant arrived at the hospital at about 1:00 a.m. Id. at 39. When she interviewed appellant, she "did notice the smell of alcohol upon his breath when he was talking." Id. at 42. She testified that the attending physician, Dr. Crim, withdrew enough blood from appellant to fill six or seven test tubes, which was the routine procedure to enable the staff to perform necessary tests, with an extra tube included in case additional tests were required. Dr. Crim withdrew the blood almost immediately upon appellant's arrival. Id. at

[ 346 Pa. Super. Page 8343]

-44. At about 2:00 a.m., Nurse Laird spoke with the police dispatcher and learned from him that the police had requested a blood sample. About an hour later, Sergeant Beadling called and Nurse Laird told him that the blood had been withdrawn and that he could pick up the sample at his convenience. She then went to appellant, told him that the police had requested a blood sample, and asked that he sign a consent form enabling her to give the blood sample to the police. Id. at 45-47. She read the consent form to him,*fn1 and appellant signed it. She testified that when appellant signed the form, he was in approximately the same condition as when he had arrived at the hospital and was "able to answer questions appropriately;" he had received no medication. Id. at 49.

At about 3:00 a.m., Sergeant Beadling came to the emergency room to pick up the blood sample. Appellant was in the operating room. Nurse Laird asked the sergeant to sign the consent form too, and after he did, she gave him the blood sample. Neither the sergeant nor any other police officer had spoken with appellant regarding his blood being tested for alcohol level. Id. at 15-16. The subsequent test of appellant's blood conducted by police technicians revealed a blood alcohol level of .11 N.T. 1/25/84 at 67.

Appellant's argument that the results of this test should have been suppressed is that since the withdrawal of his blood was undoubtedly a search, and was conducted without a warrant at a time when appellant was not under arrest, it can be justified only under one of the well-established

[ 346 Pa. Super. Page 84]

    exceptions to the warrant requirement, Brief for Appellant at 17-24; that the only possibly applicable exception is consent; and that although he did sign the consent form given him by Nurse Laird, his consent was invalid both because of the extent of his injuries and because, having spoken with no police officer, he had "no notice of the criminal investigative purpose of the blood test." Id. at 18-19. In response, the Commonwealth argues that since the blood was withdrawn by hospital personnel for purposes of treatment, the withdrawal was a private search, and as such could not have violated appellant's fourth amendment rights, Brief for Appellee at 6-8, and further, that in any event, there was implied consent to the search. Id. at 9-11.

It is clear that the fourth amendment "proscrib[es] only governmental action; it is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85, 94 (1985) citing Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (BLACKMUN, J., dissenting). See also Commonwealth v. Dembo, 451 Pa. 1, 301 A.2d 689 (1973); Commonwealth v. Borecky, 277 Pa. Super. 244, 419 A.2d 753 (1980). If ...

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