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COMMONWEALTH PENNSYLVANIA v. RICHARD ALAN SMITH (03/01/89)

filed: March 1, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD ALAN SMITH, APPELLANT



An appeal from the Judgment of Sentence entered on February 16, 1988, in the Court of Common Pleas of Westmoreland County, Criminal Division, at No. 1516, Criminal 1986.

COUNSEL

Gregory Cecchetti, Assistant Public Defender, New Kensington, for appellant.

Judith Karns-Ciszek, Assistant District Attorney, Ligonier, for Com., appellee.

Brosky, Johnson and Melinson, JJ.

Author: Melinson

[ 382 Pa. Super. Page 291]

This is an appeal from the conviction and Judgment of Sentence in the Court of Common Pleas of Westmoreland County. We affirm.

In the early morning hours of August 4, 1986, Richard Alan Smith, the appellant at bar, was driving his car in Hempfield Township, Westmoreland County. Smith lost control of the vehicle after failing to negotiate a turn. Apparently, the car rolled several times. Smith's passenger, Joy Ellen Rothgeb, died as a result of injuries sustained in the crash. Smith was taken to Monsour Hospital for treatment of his injuries.

[ 382 Pa. Super. Page 292]

Troopers Robert Weaver and Bruce Petrik of the Pennsylvania State Police were dispatched to the scene of the accident to investigate. After reviewing the scene of the accident, including the dead body of Ms. Rothgeb, Trooper Weaver went to Monsour Hospital to interview Smith who was being treated for his injuries. Trooper Weaver testified that Smith smelled of alcohol, and that Smith had bloodshot and glassy eyes. Trooper Weaver advised Smith of his constitutional right to remain silent, although he did not arrest Smith. Smith refused to sign a written waiver of this right. The trooper then asked Smith for a blood sample, but Smith made no response. A nurse at the hospital instructed Smith to put out his arm and a blood sample was drawn. This occurred at 2:05 A.M. Smith's blood alcohol level at that time was .228%. (Smith's blood was drawn for medical purposes when he first came into the hospital. No blood alcohol test was performed on that sample.) Two other blood samples were drawn later into the morning, one at 2:50 A.M., and the other at 3:55 A.M. The blood alcohol levels for these two tests were determined to be .203% and .195%, respectively.*fn1

At approximately 3:00 A.M., Trooper Petrik came to the hospital. He requested, and received, permission from the hospital staff to interview Smith. Smith had not been placed under arrest and was not arrested at that time. The trooper identified himself and told Smith that he was investigating the accident in which Smith was involved. According to the testimony of Trooper Petrik, Smith was not arrested at this time because the investigation was ongoing. Trooper Petrik further testified that Smith was not taken into custody and his movement was not restricted in any way. The trooper then asked Smith if Smith recalled his refusal to waive his constitutional right to remain silent and if Smith was willing to talk. According to the trooper, Smith then willingly began to answer questions about the circumstances of the accident.

[ 382 Pa. Super. Page 293]

Trooper Petrik came back to the hospital on August 6, 1986, and advised Smith of his right to remain silent. After signing a waiver of this right, Smith discussed the accident with Trooper Petrik. Smith was arrested on August 9, 1986, after his release from the hospital. He was charged with Driving Under the Influence of Alcohol, 75 Pa.Cons.Stat.Ann. Section 3731(a)(1), Homicide by Vehicle, 75 Pa.Cons.Stat.Ann. Section 3732, Homicide by Vehicle While Driving Under the Influence, 75 Pa.Cons.Stat.Ann. Section 3735, and a summary offense.

Thereafter, an omnibus pre-trial motion to suppress was filed on behalf of Smith requesting suppression of the blood test results and the statements given to Trooper Petrik. A hearing was held before the Honorable Charles H. Loughran, and after receipt of the briefs of the parties, the court denied Smith's motion. A jury trial was then held before the Honorable Bernard F. Scherer. Smith was found guilty of all charges.

Subsequently, Smith filed a motion for a new trial and/or in arrest of judgment. After briefs and argument, the motion was denied by the trial court. On February 16, 1988, Smith was sentenced to a term of imprisonment of three and one-half (3 1/2) to seven (7) years, a Three Hundred dollar ($300) fine and court costs. This appeal followed.

Smith presents six issues on appeal, presented in his brief as follows:

I. Whether the suppression court erred in not suppressing the results of the appellant's blood tests since the withdrawals of the appellant's blood were searches conducted without a warrant at a time when the appellant was not under arrest and the appellant had not given actual consent nor was implied consent applicable.

II. Whether the suppression court erred in not suppressing appellant [sic] oral statement. Said oral statement having been transcribed into notes by Trooper Petrick [sic] on August 4, 1986. This being error since appellant's Miranda rights had not been read to

[ 382 Pa. Super. Page 294]

    him prior to the statements, and, further, Trooper Petrick [sic] relied on Trooper Weaver's prior recitation of Miranda rights which waiver of rights was refused by the appellant.

III. Whether the trial court erred in denying appellant's request for voir dire questions, 22 thru 27, which denied the appellant the opportunity of a jury of his peers and was prejudicial.

IV. Whether the trial court erred in introducing the Monsour Hospital records reading of .195% since the blood alcohol content reading was remote in time and a violation of the doctor/patient privilege since the appellant was not aware the blood alcohol content reading was to be used for prosecutorial purposes.

V. Whether the trial court erred in not granting a mistrial since the Monsour Hospital reading of .195% was introduced as evidence when the Commonwealth did not inform the defense prior to the trial that it intended to introduce the .195% blood alcohol reading.

VI. Whether the trial court erred in not permitting the defense counsel to argue portions of the appellant's medical records which were introduced into evidence, in their entirety, without objection, in his closing arguments to the jury.

Brief for appellant at 1-2.

[ 382 Pa. Super. Page 295]

Smith's first two issues allege erroneous rulings by the suppression court. When the Superior Court is called upon to review the ruling of a suppression court, our initial task is to determine whether the factual findings are supported by the record. In making this determination, if the suppression court held for the prosecution, the Superior Court must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986). Accordingly, if the suppression court's findings of fact are supported by the record we are bound by the suppression court's factual findings. Commonwealth v. Page 295} Stein, 369 Pa. Super. 409, 535 A.2d 616 (1987). It is for the suppression court as the trier of fact, rather than the ...


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