Appeal from the Judgment of Sentence February 15, 2011, Court of Common Pleas, Bedford County, Criminal Division at No. CP-05-CR-0000342-2009
The opinion of the court was delivered by: Donohue, J.
BEFORE: DONOHUE, LAZARUS and OTT, JJ.
Charles Karns ("Karns") appeals from the judgment of sentence entered on February 15, 2011, by the Court of Common Pleas, Bedford County, following his convictions of two counts of Driving Under the Influence ("DUI")--general impairment and DUI--highest rate of alcohol.*fn1 After careful review, we vacate the judgment of sentence for DUI--highest rate of alcohol and remand for resentencing.
The events giving rise to this appeal began on the evening of April 9, 2009. That night, Officer Patterson of the Bedford Borough Police Department was on general patrol during the 11:00 p.m. to 7:00 a.m. shift. N.T., 10/27/2010, at 61. Officer Patterson received a report of a vehicle nearly hitting two women in the area of the PennWest Bar. Id. at 61-62.
After speaking with the women regarding the incident and obtaining a description of the vehicle in question, Officer Patterson began to search for a large gold or tan Chevrolet SUV with mud and grass protruding from the undercarriage. Id. at 63-65. Officer Patterson found a vehicle matching this description parked near a bar located within three to four blocks of where the women reported last seeing the vehicle. Id. at 64-65. Officer Patterson turned his vehicle around and saw a man, later identified as Karns, get into the vehicle and drive away. Id. at 65-66.
Officer Patterson followed Karns and initiated a stop after observing Karns' failure to use his turn signal, followed by watching Karns' vehicle cross over the centerline twice within a short distance. Id. at 66. Officer Patterson approached the vehicle and noted the smell of alcohol emanating from within. Id. at 67. He also observed that Karns' eyes were bloodshot and his speech was slurred. Id. Officer Patterson instructed Karns to exit the vehicle to conduct field sobriety tests, which Karns failed. Id. 67-68. For these reasons, Officer Patterson concluded that Karns was intoxicated and unable to safely operate a motor vehicle. Id. at 71. Karns submitted to blood testing at UPMC Bedford Memorial Hospital, where his blood alcohol content ("BAC") was determined to be 189 mg/dl or .189%. Id. at 71-72, 170, 242.
During its case in chief, the Commonwealth called the following witnesses: Officer Patterson; Harry Evans, the laboratory phlebotomist who drew the blood sample from Karns at UPMC Bedford Memorial Hospital; and Christine Ickes ("Ickes"), the medical lab scientist at UPMC Bedford Memorial Hospital who prepared and analyzed Karns' blood sample. Id. at 42, 25; 60-61, 66; 164, 168. At the conclusion of the Commonwealth's evidence, Karns moved for a judgment of acquittal on both counts of DUI, which the trial court denied. Id. at 262. Karns then presented the testimony of Dr. Joseph Citron, an expert in analytical chemistry and toxicology as well as standardized field sobriety testing. Id. at 285-86.
At the conclusion of the non-jury trial, the trial court found Karns guilty of the above referenced crimes and imposed a sentence of six to twenty-three and one half months of imprisonment in the Bedford County Jail for his conviction of DUI--highest rate of alcohol. The trial court found that the conviction for DUI--general impairment merged with the DUI-- highest rate of alcohol conviction for sentencing purposes. Judgment of Sentence, 2/15/2011. Karns filed a post-sentence motion, which the trial court denied on June 27, 2011. Karns thereafter filed a timely notice of appeal followed by a Rule 1925(b) statement.
On appeal, Karns raises the following three issues for our review:
. When testing non whole blood, the
Commonwealth must present evidence that a conversion factor accepted by the scientific community was used. The Commonwealth did not present any evidence whatsoever that a conversion factor relied upon by the scientific community was used. Did the trial court commit an error of law in finding [Karns] guilty?
. Exculpatory materials must be turned over to the defendant even when they are potentially inadmissible. The District Attorney knew that the hospital that tested [Karns'] blood was changing its alcohol blood testing procedures following [Karns'] alcohol blood test, but elected not to disclose that information to [Karns]. Did the Commonwealth violate the Brady rule?
. Where a defendant meets the statutory eligibility requirements for the Intermediate
Punishment Program ['IPP'], a county cannot condition acceptance upon additional eligibility requirements. The trial court made a finding of fact that [Karns] met the statutory eligibility requirements, but denied him pursuant to county requirements. Did the trial court err?
Appellant's Brief at 1.*fn2
In his first issue on appeal, Karns challenges the sufficiency of the evidence presented by the Commonwealth to sustain his conviction for DUI-- highest rate of alcohol. When reviewing a sufficiency of the evidence claim, our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.
The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011).
To be convicted of DUI--highest rate of alcohol,*fn3 an individual's BAC must be .16% or higher. See 75 Pa.C.S.A. § 3802(c). Here, Ickes testified to a BAC of .189%, but Karns contends her testimony was insufficient as a matter of law because the Commonwealth failed to produce evidence of a conversion factor that is generally accepted in the scientific community. Appellant's Brief at 32.
With respect to the BAC requirements, this Court recently stated:
The general rule for alcohol related DUIs is that only tests performed on whole blood will sustain a conviction under Section 3802. Thus, evidence of blood serum, plasma or supernatant*fn4 testing, without conversion, will not suffice. See e.g., Commonwealth v. Renninger,  682 A.2d 356 (Pa. Super. 1996); Commonwealth v. Michuck,  686 A.2d 403 (Pa. Super. 1996); [Commonwealth v. Wanner, 605 A.2d 805, 808 (Pa. Super. 1992) ]; Commonwealth v. Bartolacci,  598 A.2d 287 (Pa. Super. 1991). The reasoning for this rule rests on the distinction between whole blood and blood serum:
The distinction between whole blood and blood serum is significant.
Serum is acquired after a whole blood sample is centrifuged, which
separates the  blood cells and fibrin, the blood's clotting
agent, from the plasma-the clear liquid i[n] the blood serum. When
blood serum is tested the results will show a blood alcohol
content which can range from between 10 to 20 percent higher than
a test performed on whole blood. The reason for this is
because the denser components of whole blood, the fibrin and
corpuscles, have been separated and removed from the whole blood,
leaving the less dense serum upon which the alcohol level test
is performed. The value of the blood alcohol content in the serum
is then determined. Because the
serum is less dense than whole blood, the weight per volume of
the alcohol in the serum will be greater than the weight per volume in
the whole blood. Thus, an appropriate conversion factor is required
to calculate the corresponding alcohol content in the original
whole blood sample. Michuck, 686 A.2d at 405-406
(internal citations [and
Commonwealth v. Hutchins, 42 A.3d 302, 309-10 (Pa. Super. 2012) (footnote added).
In his appellate brief, Karns argues that because his BAC result was based upon testing supernatant, the Commonwealth was required to present evidence of a conversion factor that is reliable in the scientific community. Id. at 30-31 (citing Commonwealth v. Kohlie, 811 A.2d 1010, 1015 (Pa. Super. 2002)). Karns contends that the Commonwealth failed to do so, as Ickes, the medical lab scientist that prepared and analyzed Karns' blood sample, failed to offer testimony sufficient to satisfy the Commonwealth's burden of proof. We agree.
In Renninger, this Court held that blood testing performed on supernatant, like blood testing performed on plasma and serum, requires conversion evidence that establishes whole blood alcohol content.
Renninger, 682 A.2d 356, 362 (Pa. Super. 1996). With respect to conversion evidence, this Court has required evidence of a conversion factor*fn5 to calculate the whole blood alcohol content of the original whole blood sample from the non-whole blood result. Commonwealth v. Newsome, 787 A.2d 1045, 1049 (Pa. Super. 2001). "The Commonwealth may apply different conversion factors in different cases, as long as they are generally accepted within the scientific community." Kohlie, 811 A.2d at 1015. In Newsome, for example, we held that the Commonwealth's evidence was sufficient to sustain the appellant's DUI conviction where the Commonwealth introduced the testimony of a lab manager and an expert in toxicology. Newsome, 787 A.2d at 1049. The lab manager testified that in converting the result to a whole blood BAC, she relied on conversion factors (1.10 and 1.35) identified in studies on converting serum to whole blood levels. Id. 787 at 1046-47. The expert testified that the conversion factors were widely accepted in the field of toxicology. Id. at 1047. In Michuck, this Court found similar testimony from a lab technician and lab director, regarding a conversion factor of 1.18, to be sufficient. Michuck, 686 A.2d at 406-07. The lab technician testified that 1.18 was an average within an acceptable range and used in reputable medical literature. Id. at 406. The lab director also testified that the conversion factor of 1.18 was generally accepted within the scientific community. Id.
In the instant case, Ickes testified that she prepared and analyzed Karns' blood sample for BAC analysis. Specifically, Ickes reduced the whole blood sample to supernatant and placed it into a machine for analysis. Id. at 165-66, 205, 207. With respect to her testimony relating to a conversion factor, the Commonwealth questioned Ickes as follows:
Q. Does the machine convert the result to a whole blood test result?
Q. All right. And ultimately what you get is a result. Is that representative of the person's blood alcohol content in whole blood?
A. We run it in duplicate. And then we, we take both results. We add them, and we divide by two, and we multiple it by three. That will give you the result.
Q. Okay. Why are you multiplying by three?
Q. Well, ultimately when you do that, when you do that analysis what is the end result? What is the end result you're getting? What is the, in what terms is your answer going to be?
A. It's going to be in milligrams per deciliters.