Appeal from the Order entered December 31, 1987 in the Court of Common Pleas of York County Criminal Division, No. 546 CA 1987
Robert F. Palermo, Dallastown, for Com., appellant.
John G. Bergdoll, III, York, for appellee.
Olszewski, Watkins and Cercone, JJ.
[ 378 Pa. Super. Page 215]
This is a Commonwealth appeal from an order by which the lower court granted appellee's motion to suppress a hospital record containing the results of his blood alcohol test taken immediately following his arrest for driving under the influence of alcohol. Following a hearing on appellee's omnibus pre-trial motion, the lower court held that the Commonwealth had not met its burden of going forward with the evidence, or the burden of establishing that the evidence was not obtained in violation of the appellee's rights. As a result, Judge McCullough suppressed the evidence for use at trial.
This case arose from the following facts. On January 30, 1987, Officer Blair of York Township found the appellee, David Culp, in his pickup truck which was stuck in a snow bank. The officer testified that after speaking with appellee he detected a strong odor of alcohol on appellee's breath, that appellee's speech was slurred, and that appellee had a difficult time maintaining his balance.
Because of the above factors, Officer Blair arrested appellee, read his Miranda rights, and asked him to submit to a blood alcohol test. Appellee allegedly consented to the test and was taken to Memorial Osteopathic Hospital (hereinafter "hospital") where he signed a consent form. The test yielded a blood alcohol level of .195% by weight. Appellee was then taken to the police station, read his rights again, and videotaped as he was interviewed and performed field sobriety tests.
On July 31, 1987, appellee filed an omnibus pre-trial motion in which, inter alia, he moved to suppress the results of the blood alcohol test. He challenged the manner in which the test result was obtained and specifically alleged that the result was obtained in violation of his rights
[ 378 Pa. Super. Page 216]
under the statutes and laws authorizing such tests and under the constitutions of the United States and the Commonwealth of Pennsylvania. The suppression hearing took place September 3, 1987.
At the suppression hearing, the Commonwealth asked the court to take judicial notice*fn1 that the laboratory conducting the test was a licensed and approved laboratory under the Clinical Laboratory Act, 35 Pa.S.A. § 2151, et seq., and the attendant regulations of the Department of Health. 28 Pa.Code §§ 5.50 & 5.103. Further, the Commonwealth requested the Court to take judicial notice of a letter from the Department of Health which related that its approval of the lab means that the procedures, equipment, and personnel are properly qualified and approved to do the tests as mandated by the Clinical Laboratory Act. Appellee objected to judicial notice of such letter and the inferences asserted by the Commonwealth. The court sustained the objection. The Commonwealth provided no evidence in response to appellee's claim other than reference to the Pennsylvania Bulletin, 17 Pa.Bull. 1397, 1398, in which the hospital was cited as a facility approved for specialized blood testing. The Commonwealth presented neither witnesses to testify to the licensing or authorization of the lab or the technicians, nor evidence regarding the laboratory procedures followed in blood testing, or the qualifications of the lab technicians.
The suppression court concluded that the Commonwealth had failed to meet its burden of proof as set forth in Pa.R.Crim.P., Rule 323, 42 Pa.C.S.A. The lower court reasoned that the Commonwealth had failed to have a custodian or other qualified witness enter the documents into evidence as required by the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. ...