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COMMONWEALTH PENNSYLVANIA v. ALBERT SHONK DUNGAN (02/11/88)

filed: February 11, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT SHONK DUNGAN, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Lancaster County, Criminal Division, No. 1908 of 1984

COUNSEL

S.R. Zimmerman, III, Lancaster, for appellant.

Cheryl A. Ondechek, Assistant District Attorney, Lancaster, for Com., appellee.

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

Author: Tamilia

[ 372 Pa. Super. Page 327]

This appeal is from judgment of sentence imposed following appellant's conviction by a jury of five counts of homicide by vehicle (75 Pa.C.S. § 3732), five counts of homicide by vehicle while driving under the influence (75 Pa.C.S. § 3735) and two counts of driving under the influence of alcohol (75 Pa.C.S. § 3731(a)(1), (4)).

The charges arose out of a tragic accident that occurred April 9, 1984, in which two persons in the van appellant was driving, and three persons in one of the vehicles he struck, were killed. Eyewitnesses provided information that appellant drove his van at a high rate of speed through the intersection of Pennsylvania routes 441 and 23 colliding with the car in which three persons were killed. The van immediately burst into flames, turned over on its side and collided with a second car, the driver of which was injured. The three victims in the first car were killed instantly. A fourth passenger, trapped in the automobile, was subsequently removed by emergency personnel. The van's passengers were thrown from the vehicle; the body of one victim was found underneath the second car struck in the accident; another victim was found on the roadway adjacent to the undercarriage of the van; appellant's wife, Lauren Dungan, who survived, was found on the far side of the car which was initially struck by the van. Appellant was initially found by a witness to the accident partially in and partially out of the space where the windshield had been; this witness dragged appellant to the roadway where he was found by emergency personnel.

Appellant was transported to a hospital in Lancaster where a quantity of blood was drawn pursuant to the hospital's routine concerning trauma patients. This blood was tested for alcohol content and eventually admitted into evidence at trial. Charges were subsequently filed against appellant.

On April 10, 1984, appellant's wife, while a patient in the intensive care unit at St. Joseph Hospital, was interviewed by the Chief of the Marietta Borough Police Department.

[ 372 Pa. Super. Page 328]

At trial, appellant's wife, over objection, was called as a witness by the Commonwealth to testify as to her statements given to the Chief of Police and her recollection at the time of the trial as to the circumstances of the accident and in particular the identity of the driver of the van.

At a jury trial which concluded on July 15, 1985, the jury returned a verdict of guilty on all counts. On July 24, 1985, appellant filed a motion for a new trial and motion in arrest of judgment. The post-verdict motions were denied by the trial court on December 4, 1986, and a presentence investigation was prepared. Thereafter, appellant was sentenced to serve three consecutive jail terms of three to six years each, two concurrent jail terms of three to six years each and pay the costs of prosecution. Appellant subsequently filed a motion to modify sentence which was denied. This appeal followed.

Appellant initially contends the trial court erred in failing to suppress the results of the chemical analysis of defendant's blood since requirements of the Vehicle Code (75 Pa.C.S. § 101 et seq.), Clinical Laboratory Act (35 P.S. § 2151 et seq.) and regulations promulgated thereunder were not met in that: (a) the person who collected defendant's blood was not a "qualified person" to draw such blood within the meaning of said acts and regulations; (b) the Commonwealth failed to prove the equipment utilized to analyze defendant's blood was approved by the Pennsylvania Department of Health and met the requirements for such approval; (c) the hospital personnel collecting the blood did not have probable cause to believe a violation of section 3731 of the Vehicle Code (driving under the influence of alcohol or controlled substance) was involved; (d) the blood sample was not collected by a physician or his designee; and (e) the hospital testing defendant's blood was not proven to be a clinical laboratory licensed, approved by the Department of Health.

In the alternative, appellant maintains the blood test results which showed an alcohol content of 0.19% should have been suppressed since they were obtained pursuant to

[ 372 Pa. Super. Page 329]

    the filing of a criminal complaint alleging a violation of section 3731(a)(4) of the Vehicle Code without the Commonwealth's having had probable cause for defendant's arrest.

The procedure for chemical testing of an individual's blood is provided for in 75 Pa.C.S.A. § 1547(c)(2):

(c) Test results admissible in evidence. -- In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's blood, as shown by chemical testing of the person's breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.

(2) Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified persons means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as "The Clinical Laboratory Act."*fn1

The Pennsylvania Code at section 5.41 of Title 28 sets forth the requirements for those who accept and collect blood specimens:

§ 5.41. Acceptance and collection of specimens.

(a) Specimens shall be accepted or collected from patients by a clinical laboratory only when tests are requested on the specimens by a member of the healing arts licensed to practice in Pennsylvania, or other persons authorized by statute, or authorized agents of the foregoing.

(b) No specimen shall be collected by an owner, an employe or other person associated with the clinical laboratory except under one of the following conditions:

[ 372 Pa. Super. Page 330]

(1) The person is a member of the healing arts licensed in this Commonwealth or a laboratory director qualified under the provisions of the Clinical Laboratory Act of 1951 (P.L. 1539) (35 P.S. § 2151 et seq.).

(2) The person is collecting the specimen under the direction of a member of the healing arts licensed in this Commonwealth or a laboratory director qualified under the provisions of the Clinical Laboratory Act (35 P.S. § 2151 et seq.).

(c) This section does not prohibit the transmission of specimens collected as set forth in subsection (b) under ...


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