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COMMONWEALTH PENNSYLVANIA v. JEFFREY TILLIA (12/16/86)

filed: December 16, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY TILLIA, APPELLANT



Appeal from the Judgment entered April 14, 1986, in the Court of Common Pleas of Lackawanna County, Criminal No. 84 CR. 59.

COUNSEL

William R. Lee, Scranton, for appellant.

Michael Basista, Assistant District Attorney, Scranton, for Com., appellee.

Wickersham, Olszewski and Beck, JJ.

Author: Olszewski

[ 359 Pa. Super. Page 306]

This is a direct appeal from the judgment of sentence imposed following a jury trial at which appellant was found guilty of operating a motor vehicle while under the influence of alcohol, 75 Pa.Cons.Stat.Ann. Sec. 3731(a)(1), (4) (Purdons Supp.1986) and homicide by motor vehicle while under the influence of alcohol, 75 Pa.Cons.Stat.Ann. Sec. 3735 (Purdons Supp.1986).*fn1 Following his conviction and the denial of post-verdict motions, appellant brought the instant appeal alleging six claims of error committed by the trial court. For the reasons stated below, we affirm the judgment.

I.

The Commonwealth filed an information charging appellant with the crimes of operating a motor vehicle while under the influence of alcohol, 75 Pa.Cons.Stat.Ann. Sec. 3731(a)(1), (4); homicide by motor vehicle while under the influence of alcohol, 75 Pa.Cons.Stat.Ann. Sec. 3735; and homicide by motor vehicle while driving at an unsafe speed, 75 Pa.Cons.Stat.Ann. Sec. 3732. Appellant's first contention is that the trial court erred in permitting the Commonwealth to amend the information to charge the following offenses: operating a motor vehicle while under the influence of a controlled substance or alcohol, 75 Pa.Cons.Stat.Ann. Sec. 3731(a)(1), (4); homicide by motor vehicle while under the influence of alcohol or a controlled substance, 75 Pa.Cons.Stat.Ann. Sec. 3735; and homicide by motor vehicle while driving at an unsafe speed, 75 Pa.Cons.Stat.Ann. Sec. 3732. Appellant argues that the amendment was impermissible

[ 359 Pa. Super. Page 307]

    under Pa.R.Crim.P. 229 because different offenses were added to the information. We disagree.

Rule 229 provides:

Rule 229. Amendment of Information

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Pa.R.Crim.P. 229. In Commonwealth v. Stanley, 265 Pa. Super. 194, 401 A.2d 1166 (1979), this Court articulated the following guidelines for assessing the propriety of permitting such an amendment:

(T)he courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted.

Stanley, 265 Pa. Super. at 212-213, 401 A.2d at 1175 (footnotes omitted). The purpose of Rule 229 is to insure that a defendant is notified of the charges against him, and to avoid prejudice by prohibiting last minute additions of which the defendant is uninformed. Stanley, 265 Pa. Super. at 212, 401 A.2d at 1175.

Although a literal reading of Rule 229 appears to support appellant's contention, we fail to see any prejudice to appellant in the allowance of the amendment. The

[ 359 Pa. Super. Page 308]

    conduct underlying the offenses, the events, and the penalty for the offenses are identical. Appellant had notice of the general charges nine months prior to trial when, in December of 1983, the arrest warrant was issued, and he was given two months notice of the specific offenses when, in July of 1984, the information was amended. Further, the record indicates that a continuance was granted thereby extending the preparation time before trial. The purpose and procedure of Rule 229 were satisfied as appellant had sufficient notice and adequate time to prepare his case.

Appellant argues, however, that Commonwealth v. Plybon, 279 Pa. Super. 329, 421 A.2d 224 (1980) is controlling. Indeed, that case is factually similar to the matter at hand. In Plybon, the original information charged the defendant with violating 75 Pa.Cons.Stat.Ann. Sec. 3731 (a)(3), driving under the combined influence of alcohol and a controlled substance. At trial, the Commonwealth sought to amend the information to include the offense of driving under the influence of alcohol, Sec. 3731(a)(1). The Court held that the defendant was prejudiced by the amendment because the elements of, and the defenses to, the amended charge would have materially altered the original information. Plybon, 279 Pa. Super. at 333, 421 A.2d at 225-226.

Appellant's reliance on Plybon is misplaced. In that case, the Commonwealth moved to amend only after it had rested its case and the defendant had demurred. Plybon, 279 Pa. Super. at 332, 421 A.2d at 225. Hence, the defendant had neither adequate notice of the amendment, nor time to prepare a defense to the amended charges. We believe that this crucial distinction between the two cases renders Plybon inapplicable.

Appellant also argues that he was prejudiced by the amendment because the evidence regarding the amended offenses was submitted to the jury and may have influenced the verdict. Appellant's argument is unpersuasive in view of the fact that the court sustained his demurrer as to the charges concerning driving under the influence of a controlled substance and driving under the combined influence

[ 359 Pa. Super. Page 309]

    of a controlled substance and alcohol. Thus, only the charges listed in the original information were submitted to the jury. Accordingly, the lower court committed no error by granting the Commonwealth's motion to amend.

II.

Appellant's second contention is that the trial court erred in not suppressing the results of the blood alcohol test. Specifically, appellant argues that the Commonwealth failed to attempt to preserve the blood sample for independent analysis.

The stipulation of facts entered into between the Commonwealth and appellant indicated that a blood sample was taken from appellant at a medical center in the early morning hours of October 16, 1983, and delivered to the state police barracks. According to the stipulation, if a Commonwealth criminologist would have testified, he would have stated that the percentage of blood alcohol from the test was 0.15%.*fn2 Pursuant to state policy, the blood sample was destroyed either the same day of the testing or the next day. The warrant for the appellant's arrest was not issued until December 9, 1983.

The statute authorizing the chemical testing procedures for blood alcohol content provides that the test result be made available to the defendant and permits the defendant to request that his/her own physician perform an additional, independent test. 75 Pa.Cons.Stat.Ann. Sec. 1547(g), (h) (Purdons Supp.1986).*fn3 Appellant argues that because the

[ 359 Pa. Super. Page 310]

Pennsylvania Rules of Criminal Procedure do not allow any discovery of Commonwealth evidence until after the information is filed, it would have been impossible for him to request that the blood sample be preserved for independent analysis as the sample had already been destroyed. Appellant also asserts that because a test result indicating a blood alcohol level of 0.10% or more is a per se finding of intoxication, the Commonwealth should be required to take reasonable steps to preserve the blood sample for independent testing.

The same argument, albeit in a different context, has been rejected in both the Supreme Court of the United States and this Court. In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), a unanimous Court established the standard whereby evidence is constitutionally required to be preserved for disclosure. Such evidence must "(1) (possess) an exculpatory value that was apparent before the evidence was destroyed, and (2) also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means." Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. Further, there must be no indication that the authorities destroyed the evidence in order to circumvent the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Trombetta, 467 at 488, 104 S.Ct. at 2534. Finding none of the requirements satisfied, the Court held that due process does not require the police to save a sample from a breathalyzer for independent testing and inspection. Trombetta, 467 U.S. at 491, 104 S.Ct. at 2535. When the same issue was presented before this Court, we concluded that the due process protections of the Pennsylvania Constitution required no more than those afforded by the federal constitution. Commonwealth v. Gamber, 352 Pa. Super. 36, 41, 506 A.2d 1324, 1327 (1986). Hence, we hold that the Commonwealth was not required to preserve a

[ 359 Pa. Super. Page 311]

    breath sample used in administering an intoxilyzer test. Gamber, 352 Pa. Super. at 41, 506 A.2d at 1328.*fn4

The rationale underlying both Trombetta and Gamber is equally applicable in the present case. In applying the guidelines used in those cases, we look to the circumstance leading to the destruction of the blood sample. Appellant does not contend, nor do we find any evidence in the record, that the Pennsylvania State Police consciously destroyed appellant's blood sample in order to prevent discovery of exculpatory ...


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