*1 Pennsylvania COMMONWEALTH GAROFALO, Appellant. Giuseppe Pennsylvania. Superior Court of Argued March Aug. 3, 1989. Filed *2 York, Harris, appellant. W. James York, for Com. Dist. Atty., Asst. Flinchbaugh, John OLSZEWSKI, JJ. WIEAND, McEWEN and Before OLSZEWSKI, Judge: after of sentence from a judgment appeal
This is an *3 pursu influence of alcohol the driving under conviction rais 3731(a)(4). appellant appeal, On to 75 Pa.C.S.A. ant § following For the review.1 for our arguments es several sentence. of reasons, judgment affirm the following argues issues: Appellant the 1. contrary weight of the evidence. guilty the is to The verdict of 1. at contrary introduced guilty to the evidence of is 2. The verdict of the defendant. the trial contrary guilty to law. of 3. The verdict permitting of the Judge the results err Did the learned Trial 4. strength of the on the into evidence test to be admitted testimony Charlene McGrath? of rights under the constitutional denied his Was the defendant 5. by the admission of the Sixth Amendment [C]lause [C]onfrontation technician, presence the lab of results without of the blood test Carlene DeLuca? convicted, 75 was which the defendant Was the Act under 3731(a)(4), is irreconcilable because it unconstitutional Pa.C.S.A. [§] 1547(d)(3)? with 75 Pa.C.S.A. [§] defen- prove alcohol in the the level of 7. Did the Commonwealth stop? of the at the time dant’s blood showed by [sic] offered the [C]ommonwealth the evidence 8. Did driving? the time of and not at time of the test result at the beyond doubt prove a reasonable not did 9. The Commonwealth Influence, while Driving The guilty Under of the defendant was that greater. was .10% alcohol in his blood the level of p. appellant of at
Brief 22, 1987, a.m., On approximately June 2:48 appellant from stopped by was two officers the Northern York Coun- ty Department Police after officers that noted the rear lights appellant’s on vehicle were not operational. Upon vehicle, approaching one the officers noted a strong odor of Suspecting alcohol. was under the influence, requested appellant per- one officers form field tests. sobriety failing several After two of the tests, appellant three placed was under arrest and taken to performed where blood test was at approxi- a.m. mately 3:35 The results indicated that appellant had a of .12 percent. blood-alcohol content
Appellant charged was driving with under the influence 3731(a)(1) (4) of the Motor Vehicle Code.2 § by After a trial jury, appellant was convicted of operating a vehicle his while blood-alcohol level in excess of .10 3731(a)(4). percent, a violation of Post-trial motions were denied, filed and and appellant was sentenced to a term of imprisonment totaling plus 48 hours one a fine year Appellant then filed the instant appeal. $500. Appellant’s first contention relates to the admission of the results of his arguments blood-alcohol test. Two are through being despite Issues 1 addressed trial court in the sufficiency argument, nature clearly of a of the evidence are boiler- such, plate. specific arguments preserve As these appel- no issue for review; therefore, they late are waived. See Commonwealth (1988); MacSherry, A.2d 871 Commonwealth v. Gregory, (1983) (boilerplate issues preserved by the mere fact that trial court addressed them in event, opinion). light disposition its In remaining our
issues, specific completely it is our determination that these are issues *4 Therefore, reason, they rejected. meritless. be either must 3731(a) pertinent parts provide 2. The of § as follows: Driving § 3731. under influence of alcohol or controlled substance drive, (a) person operate Offense defined. —A shall not or be in physical actual control of the movement vehicle while: (1) degree influence of alcohol to a which renders the person incapable driving; of safe 75 Pa.C.S.A. § 0.10% or (4) the amount of alcohol greater. 3731(a). [******] weight in the person
867 first, advanced: that the introduction of the results violated rule; alternative, hearsay and the introduction of of the United the results violated the Confrontation Clause States Constitution. claims,
Before
address the merits of these
we
we
this Court.
they
properly
must decide whether
are
before
appellate
It
is well-settled that
issue for
preserve an
review,
first,
requirements
litigant
two
must be met:
second,
specific
must make a
he must
timely
objection;
motion. Common
argue the
error on
alleged
post-trial
DeBooth,
wealth v.
522,
(1988);
Pa.Super.
379
Our of waiver would not affect the outcome of this case arguments were these properly preserved for our Rather, review. these arguments identical were addressed and rejected by panel a recent Common- this Court wealth v. case, In that we held that blood-alcohol test results
may be admitted properly into evidence without the pres- ence of the technician performed who the test. rea-We soned that said results fall within the business records exception to the rule and do not hearsay offend a defen- right dant’s doing, confrontation. In so reliance was Karch, Commonwealth v. placed on (1986), 502 in which we stated: It is well established that records are admissible to show hospitalization, prescribed, the facts of treatment
368 In Common- present
and symptoms omitted]. [citations 587, Seville, Pa.Super. v. wealth [266 judice, with the one sub on directly point (1979)], a case proper- results were held that blood-alcohol the Court presence into evidence without admitted ly reasoned the test. The Court performed technician who hospital under the admissible results were the test rule: since blood-alco- hearsay to the exception records and thus routine, highly it is reliable and hol test is basic conclusion to the level or opinion rises a mere beyond accu- reliability to “No such doubts as fact. medical merely to record is offered when a are entertained racy ascer- readily some or the existence prove facts ... Id. 266 body.” within the or chemical tained substance added). (Emphasis 592, 405 A.2d at at Pa.Super. the ele- hearsay, “... records are if the Even in of the safe- place trustworthiness ments of serv[e] cross-ex- confrontation and by afforded ordinarily guards writing amination, admission justifies which who calling persons all necessity record without it.” Commonwealth in preparing had a hand may have A.2d at 1265. Seville, at 405 v. Pa.Super. citing 558 A.2d at at A.2d at Karch, Commonwealth regarding right argument In of his support in on the dissent confrontation, solely relies in which Karch, Judge Spaeth, then President by authored perspective. a constitutional examined from the issue is Karch, majority argument, rejected This identical analysis by an exhaustive after rejected was likewise analysis find this latter Because we Court Kravontka. Karch to the dissent adherence appellant’s persuasive, of no avail. would be claim appellant’s find merit
Nor do we properly admitted test results were Business Records as Evidence Act or the Motor Vehicle bar, In *6 Code4. the case at Charlene McGrath testified that she was the of the laboratory’s custodian records. As part of her testimony, she identified the record of laboratory appellant, taking which showed the date and time of the the sample performance and of the test. She verified the record printed contemporaneously with transac- tion to capture time, the exact date and and that this was operating procedure. standard also She testified con- cerning the time at which sample the blood was taken and Moreover, eventual time at which it was tested. trial court judicial took notice that hospital which the test was taken was an approved laboratory purposes for performing such blood tests appellant’s at the time test was See Pennsylvania Bulletin, performed. Vol. No. such, October 1987. As equipment, all personnel, and procedures qualified used are approved and in accordance with 75 1547(c)(2) Pa.C.S.A. to allow admission of the § Appellant claims that lay the Commonwealth proper failed to a prior foundation testifying argues admittance of the test results. He that the witness, McGrath, identify any Charlene did not testify keeping practices record or about record at the where such, the test was taken. As he contends that the Commonwealth did requirements not meet the provides of 42 Pa.C.S.A. 6108 which § pertinent part: (b) act, shall, General Rule.—A record of an condition or event relevant, insofar competent as be evidence if the custodian or qualified identity otherwise its witness testifies to its and the mode of preparation, regular and if it was made in the course of business act, event, if, at or near the time of the condition or in the tribunal, opinion information, the sources of method and preparation time of justify were such as to its admission. 6108(b). 42 Pa.C.S.A.§ Appellant claims that the Commonwealth failed to show that his by qualified test was person conducted as set forth in 75 1547(c) Pa.C.S.A.§ as follows: (c) Test any summary results admissible in evidence.—In or crimi- proceeding nal charged in which the defendant is with a violation of section 3731 or arising other violation of this title out of the action, same the amount of alcohol or controlled substance in the blood, by testing defendant’s person’s as shown chemical breath, urine, blood or qualified which tests were conducted persons using approved equipment, shall be admissible in evidence. 1547(c). 75 Pa.C.S.A. § conclude, as in Under these circumstances
record. mere Ms. did that the fact that McGrath not the fact testing appellant’s actual blood and see the did an to cross-examine the opportunity not have appellant that the test taker would conclusion actual warrant test results. by admitting trial court erred the blood Next, 3731(a)(4), claims that 75 Pa.C.S.A. convicted, unconstitutionally he was is the act which 1547(d)(3).5 Appellant irreconcilable with Pa.C.S.A. § former contends that the statute mandates conviction greater percent, than .10 percentage whereas blood-alcohol statute, “may,” implies which the word the latter uses disagree. only. We permissive conviction *7 constitutionality a the reviewing challenge When statutes, of strong is a in favor a presumption of there finding constitutionality. Assembly of An Act of will not it clearly, palpably, declared unconstitutional unless be All are to be plainly violates the Constitution. doubts legislation. in of the sustaining Pennsylva resolved favor Teachers Philadel nia Federation v. School District of of 196, 200, 751, (1984); Pa. 484 754 Common phia, 52, 964, Robinson, 49, 438 A.2d wealth v. Pa. (1981); Erie 493 Pa. Hayes Exchange, Insurance case, present appel 425 A.2d In the of statutes in language lant has misconstrued 3731(a)(4) person mandates that a shall question. Section .10 per a vehicle when his level is drive blood-alcohol greater. evidentiary hand an cent or On other § a test of or states that chemical the blood urine provision, as evidence a conviction may seeking be introduced when 3731; punishment provide it does not mandate under § Therefore, find that statutes proof. we the two burden 1547(d)(3)states as follows: 5. Section breath, testing person’s of a blood or urine shows that If chemical by weight person the amount alcohol in the blood of the tested greater, may if is this fact be introduced into evidence .10% person charged violating with section 3731. Pa.C.S.A.§ are wholly consistent with each other. Accordingly, reject this claim.
Finally, appellant contends that the Commonwealth that, prove arrest, unable to at the time of his blood percent alcohol content was .10 or greater. argues He since the blood sample was taken at 3:35 a.m. while analysis a.m., actual was performed at 11:20 a delay of hours, approximately eight the Commonwealth failed to prove beyond a reasonable doubt that he was intoxicated driving while as required by 3731(a)(4). 75 Pa.C.S.A. We disagree.
Appellant is apparently laboring under misguided notion that the results of the pertain to his blood a.m., alcohol level at 11:20 rather than the time the actual sample was taken. To the contrary, Charlene McGrath, testifying as an expert the field of blood analysis, related that shortly after a sample is re- placed moved it is preservative which will halt any chemical changes According McGrath, blood. to Ms. procedure this insures long that as as the sample is tested hours, within twenty-four it will reflect an accurate repre- sentation of the blood alcohol level at the time of the drawing of Here, the blood. appellant’s blood was drawn a.m., therefore, 3:35 the results of the analysis blood, conducted well within the twenty-four hour limita- tion, pertain to that period. time Since was ar- rested at 2:48 a.m. that same morning, the actual delay *8 between the time appellant was operating his vehicle and the time the test was taken amounted to forty-seven min- utes. circumstances,
Under these we find that the proper reso- lution of this issue is contained in the analysis of this Court in Commonwealth v. Boyd, 373 Pa.Super.
(1988) (en banc). In in Boyd, relying part on analysis the set in forth Commonwealth v. Speights, 353 Pa.Super. (1986), we determined that the Common- wealth need not to attempt offer evidence relating back to a blood alcohol test taken some time after a defendant’s decisions, Commonwealth is to both the According
arrest.6 required provide beyond to evidence reasonable merely intoxi- operating a defendant was a vehicle while doubt that may introduce the doing, In so the Commonwealth cated. guilt, and their evidence of a defendant’s results as finding guilt, espe- of compel alone not introduction does challeng- of competent there evidence record where cially Boyd, v. Commonwealth accuracy. ing their 541 A.2d at appellant upon presented evidence was Instantly, alcohol, of failed strongly smelled being stopped police tests, previously sobriety field and admitted of three two challenges to gin Appellant's four and tonics. consuming test, opinion, in do rejected previously this his alcohol results, of the nor was accuracy to the not relate suggest inaccuracy. introduced to an evidence competent circumstances, could jury we conclude that a these Under of a vehicle appellant guilty operating find properly 3731(a)(4). reject We therefore of 75 Pa.C.S.A. violation his final claim. of affirmed.
Judgment sentence McEWEN, J., concurring statement. files a McEWEN, Judge, concurring. correctly concludes majority quite
The author of the view prevailing in this principles presently application of arguments appel- require rejection Commonwealth Moreover, of expression majority, fine the lant. the challenge, upon relies care- the constitutional rejecting Judge Zoran colleague Popo- eminent rationale of our ful Commonwealth vich I, most only I to observe that A.2d 865 write colleagues that my do share the view of
respectfully, analysis alcohol does reports presentation an Confrontation rights accused not violate taking delay arrest and the breatha- Boyd, between the 6. In delay Speights, thirty between the two lyzer test minutes. In forty-five minutes. events was two hours *9 Clause the United States I forego expres- Constitution. sion of the basis for my conclusion since it major mea- sure mirrors the rationale already provided the dissenting opinion of our esteemed former colleague and President Karch, Judge Jr., Edmund B. Commonwealth v. Speath, 349 Pa.Super. REALTY, INC., Appellee,
CENTURY HERITAGE Cheek, Appellants. William BAIR and Carl Superior Pennsylvania. Court of
Argued April July
Filed