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COMMONWEALTH PENNSYLVANIA v. JAMES E. BULLOCK (12/08/86)

filed: December 8, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES E. BULLOCK, III, APPELLANT



Appeal from Judgment of Sentence March 11, 1986, in the Court of Common Pleas of Lehigh County, Criminal No. 492/1983.

COUNSEL

W. Hamlin Neely, Allentown, for appellant.

William E. Ford, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Wickersham, Olszewski and Beck, JJ.

Author: Olszewski

[ 359 Pa. Super. Page 152]

This appeal follows judgment of sentence for homicide by vehicle, 75 Pa.Cons.Stat. Sec. 3732; homicide by vehicle while driving under the influence of alcohol, 75 Pa.Cons.Stat. Sec. 3735(a); and driving under the influence of alcohol, 75 Pa.Cons.Stat. Sec. 3731(a)(1) and (a)(4). Following conviction by a jury, appellant filed timely post-trial motions for a new trial and in arrest of judgment. The trial court considered and denied appellant's motions in an opinion authored by the Honorable John E. Backenstoe, President Judge, in which the Honorable David E. Mellenberg joined. The Honorable James Knoll Gardner filed a dissenting opinion. Appellant was sentenced to terms of imprisonment of three-to-seven years on the homicide by vehicle charge, two-to-five years on the homicide by vehicle while driving under the influence charge, and six-to-twenty-four months each on the driving under the influence charges. All sentences were ordered to run concurrently.

At issue on appeal is the driving under the influence conviction under 75 Pa.Cons.Stat. Sec. 3731(a)(4).*fn1 In closing at trial, defense counsel argued that the jurors should

[ 359 Pa. Super. Page 153]

    disregard a blood test result that had not been expressed in terms of percentage of alcohol in the blood by weight as contemplated by the statute. As part of its charge, the trial court instructed the jury that the test which was stipulated to by the parties was a blood test done by weight, and that they therefore should ignore defense counsel's argument to the contrary. Appellant contends that the foregoing instruction was prejudicial error. We have carefully reviewed the record and briefs submitted by counsel and find no merit in appellant's contention. Accordingly, we affirm the judgment of sentence.

Appellant's conviction arose out of an automobile accident which occurred on February 5, 1983. On that date, appellant ran a red light and struck another vehicle passing through the intersection with the right of way. The police sergeant who investigated the accident spoke with appellant and detected a strong odor of alcohol about appellant's breath and person. The police transported appellant to the Sacred Heart Hospital where he was advised of his rights. Appellant then made a statement to the effect that he had consumed beer shortly before the incident. At the sergeant's request, the hospital drew a sample of appellant's blood to test it for the percentage weight of alcohol. The blood serum tested revealed a content of 0.135% alcohol.*fn2

Turning to the issue raised on appeal, we hold that the trial court correctly concluded that the blood test instruction was proper. First, we agree with the trial court that the test result's compliance with the statute's "by weight" designation was a question of law for the court. Not only was it a matter of construing the "by weight" language, but it also involved a factor going to the admissibility of the test result. See Commonwealth v. Karch, 349 Pa. Super. 227, 502 A.2d 1359 (1986) (We determined as a question of admissibility and statutory construction whether

[ 359 Pa. Super. Page 154]

    the "by weight" language in 75 Pa.Cons.Stat. Sec. 1547(a) is satisfied when the blood-alcohol reading is expressed in terms of the ...


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