Commonwealth v. BOROVICHKA
18 A.3d 1242
| Pa. Super. Ct. | 2011Background
- Borovichka was convicted by a Greene County jury of DUI—highest rate (0.195 BAC) following a stop near a McDonald’s in Franklin Township; suppression challenges were litigated regarding MPJA-exceeding stop, destruction of blood evidence, and the admissibility of lab testimony.
- Sentencing occurred October 2009: 90 days to 12 months’ incarceration, $2,000 fine, community service, and a requirement to obtain a drug/alcohol evaluation.
- The court later sentenced without the results of the required evaluation, contrary to 75 Pa.C.S.A. § 3814, prompting post‑verdict filings and the Commonwealth’s assertion of an illegal sentence.
- Borovichka raised suppression issues (vehicle stop, destruction of blood, and lab testimony) and challenged the sentence as illegal; the Superior Court addressed waiver issues and the merits of the suppression claims.
- The court ultimately vacated the judgment of sentence and remanded for sentencing consistent with the required 3814/3804 framework, including determining whether the assessment was initial or full and whether the 3804(d) maximum applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the vehicle stop illegal under MPJA requiring suppression? | Borovichka argues Nichols exceeded jurisdiction and the stop was unlawful. | Commonwealth contends MPJA permits extra-jurisdictional detention for exigent safety reasons. | No automatic suppression; stop authorized under MPJA (Lehman rationale) given safety exigency. |
| Was the blood evidence suppression warranted due to destruction before arrest? | Borovichka asserts destruction denied him independent testing and cross-examination rights. | Commonwealth relies on Fisher/Snyder; destruction was not in bad faith and evidence was only potentially useful. | No due process violation; no bad faith shown; suppression not required. |
| Was Samber’s testimony properly admitted given lack of recollection and hearsay concerns? | Samber could not recall testing Borovichka’s blood; defense cites lack of independent recollection and hearsay. | Memorandum admissible under Butts with proper foundation; lab procedures authenticated. | Admissible; proper foundation and Butts-Levanduski basis supported admission. |
| Is the sentence illegal for failure to conduct initial/full 3814 assessment before sentencing; impact of 3804(d) maximum? | Sentence violated §3814 and §3804(d); the court must impose max if in need of treatment after full assessment. | Record lacking post-sentencing evaluation; 3804(d) applicability unclear without showing full assessment. | Judgment of sentence vacated; remand for proper evaluation timing and individualized sentencing; potential application of §3804(d) after full assessment. |
Key Cases Cited
- Commonwealth v. Lehman, 870 A.2d 818 (Pa. 2005) (MPJA and exigent circumstances support outside-jurisdiction stops; public safety purpose emphasized)
- Commonwealth v. O'Shea, 567 A.2d 1023 (Pa. 1989) (MPJA violations not per se suppressive; totality of circumstances governs)
- Illinois v. Fisher, 540 U.S. 544 (U.S. 2004) (destruction of potentially useful evidence requires bad faith for due process claim)
- Commonwealth v. Snyder, 963 A.2d 396 (Pa. 2009) (Fisher standard adopted for destruction of potentially useful evidence; bad faith required)
- Commonwealth v. Butts, 204 A.2d 481 (Pa. Super. 1964) (writings memorandum admissible to refresh recollection when proper foundation)
- Commonwealth v. Levanduski, 907 A.2d 3 (Pa. Super. 2006) (admissibility review—relevance and probative value; discretion standard)