Appeal from the Order Entered May 22, 1987, in the Court of Common Pleas of Mifflin County, Criminal, No. 20 of 1987.
Keith Kendall, Assistant District Attorney, Lewistown, for Com., appellant.
Lester H. Zimmerman, Jr., Lewistown, for appellee.
Cavanaugh, Olszewski and Popovich, JJ.
[ 372 Pa. Super. Page 313]
This is an appeal from the trial court's order granting the defendant-appellee's motion to suppress the results of blood tests performed on appellee. Appellant, the Commonwealth, raises one issue for our review: was the blood test taken in conformity with the "Clinical Laboratory Act", P.L. 1539, No. 389.
Preliminarily, we note that the Commonwealth may appeal from a trial court's ruling on a suppression motion when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The Commonwealth has done so in this case; therefore, the appeal is properly before us. We
[ 372 Pa. Super. Page 314]
also note that in reviewing a Commonwealth appeal of a suppression order, we must consider only the evidence of the defendant's witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983). Furthermore, our scope of appellate review is limited primarily to questions of law. See Commonwealth v. White, 358 Pa. Super. 120, 516 A.2d 1211 (1986). We are bound by the suppression court's findings of fact if those findings are supported by the record. Id. Factual findings wholly lacking in evidence, however, may be rejected. Id.
We now proceed to a review of the instant case. Appellee, Lynn Stine, was charged with operating a motor vehicle under the influence of alcohol. 75 Pa.C.S.A. § 3731. Appellee filed a pre-trial motion for relief asking that the results of the blood test be suppressed on the grounds that the testing was not done at the direction or under the supervision of the hospital clinical laboratory supervisory personnel as required by the regulations issued by the Department of Health.
Chemical testing to determine the amount of alcohol is provided for by 75 Pa.C.S.A. § 1547. Pertinent to the instant case is 75 Pa.C.S.A. § 1547(c)(2), which states:
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 ...