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COMMONWEALTH PENNSYLVANIA v. MORGAN A. KELLY (07/07/87)

filed: July 7, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
MORGAN A. KELLY, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC8404500A and CC8404501A, No. OTN B111032-5 and B091735-0.

COUNSEL

Thomas W. Corbett, Jr., Pittsburgh, for appellant.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellee.

Cirillo, President Judge, and Montemuro and Tamilia, JJ.

Author: Tamilia

[ 365 Pa. Super. Page 31]

This is an appeal from judgment of sentence entered after a jury convicted appellant of driving under the influence of alcohol,*fn1 homicide by vehicle,*fn2 homicide by vehicle while driving under the influence*fn3 and involuntary manslaughter.*fn4 Appellant was subsequently sentenced to a mandatory three (3) to six (6) year term of imprisonment on the homicide by vehicle while driving under the influence charge.

The testimony presented at trial established that appellant, on March 25, 1984, while driving under the influence of alcohol, lost control of his vehicle, crossed the center line of the road and struck the victim's car head-on, killing her and injuring her husband. Immediately following the accident, appellant was transported to Mercy Hospital where a blood alcohol test was performed. The test revealed a blood alcohol content of .24 per cent. On March 26, 1984, pursuant to a search warrant, the police conducted a search of the records of Mercy Hospital and, as a result of the search, the police obtained a report of an analysis performed upon a sample of appellant's blood. This evidence was introduced at trial by the Commonwealth.

Appellant now argues the court erred in failing to suppress the medical records as there was a lack of probable cause for issuance of the search warrant and the warrant failed to describe the place to be searched with adequate particularity.

[ 365 Pa. Super. Page 32]

The "implied consent" law, 75 Pa.C.S.A. § 1547, provides, in pertinent part:

(a) General Rule. -- Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle:

(1) while under the influence of alcohol of a controlled substance or both; or

(2) which was involved in an accident in which the operator or passenger of any vehicle involved or a pedestrian required treatment at a medical facility or was killed.

In the instant action, the validity of the search warrant is irrelevant as the police officers were entitled to the results of the blood tests pursuant to the "implied consent" law. In fact, the police officers in this case had authority to administer tests to appellant under both (a)(1) and (a)(2) of 75 Pa.C.S.A. § 1547. The officers certainly had "reasonable grounds" to believe appellant may have been operating his vehicle while under the influence of alcohol. Officer Zader testified that when he arrived on the scene of the accident he was told by an eyewitness that appellant's car had crossed the center line of the road before the collision (S.H., 2/19/85, p. 7). Officer Zader further testified appellant was "combative" and "mouthy" at the scene of the accident, and during the officer's attempt to help the paramedics, he got in appellant's car, sat beside him and detected a very strong odor of alcohol (S.H. 1/19/85, p. 24). Also, Officer Zader was informed, at the scene of the accident, that the passenger in the other car had died (S.H., 2/19/85, p. 8). Thus on this basis alone, the police had the

[ 365 Pa. Super. Page 33]

    authority to conduct testing to determine the presence of ...


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