After being treated at the scene of a two-car accident in the City of Allentown, the defendant has been charged with driving under the influence of a controlled substance
At an evidentiary hearing on defendant’s motion, the Commonwealth presented the testimony of Michael Matchette, a seven-year member of the Allentown Emergency Medical Service, Dr. Dean Fritch, a forensic toxicologist, and Officer Michael Billera, a six-year member of the Allentown Police Department. Based on this testimony, the transcript of the preliminary hearing,
On August 18, 2001, at approximately 10:23 p.m., Officers Kristopher Vogt and Michael Billera responded to the scene of a two vehicle accident at 40th and Tilghman Street in the City of Allentown.
After Emergency Medical Technician Michael Matchette treated the defendant, stabilized her, and placed her in a cervical collar, he asked if she had consumed any alcohol.
“[Pjolice detentions become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of arrest.” Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999). The standard for determining whether a suspect
“The factors that the court considers to determine whether there has been a custodial interrogation include: the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.” 772 A.2d 970, 973 (Pa. Super. 2001).
Although the defendant was strapped to a backboard and suffering from accident-related injuries, she was not in custody when Officer Billera asked her if she had consumed any alcohol or drugs. In Commonwealth v. Perry, 710 A.2d 1183, 1186 (Pa. Super. 1998), the court found that questioning by a police officer of the defendant, who was intoxicated, injured and awaiting treatment in a hospital emergency room, was proper where the questioning was the result of proper police investigative procedure. The court held that the questioning was not lengthy and the defendant’s presence in an emergency room did not de facto place him in custody. Id.
In Commonwealth v. Fento, 363 Pa. Super. 488, 494, 526 A.2d 784, 787 (1987), the court also held that the defendant was not in custody during his interview with a police officer in his hospital room. The court focused on the fact that “the only restraints placed on appellee
At the pretrial motions hearing, the Commonwealth presented evidence that the defendant’s blood tested positive for heroin, yielding a result of 325 nanograms per milliliter total morphine.
We agree with the defense that there is no standard in Pennsylvania for the level of a controlled substance in the blood that would render a person incapable of safely operating her vehicle.
We note that the standard by which we are measuring the admissibility of this expert testimony is different at this preliminary proceeding than it will be at trial. At a preliminary hearing, the Commonwealth need not prove its case beyond a reasonable doubt, but must only present a prima facie case. Commonwealth v. Saunders, 456 Pa. Super. 741, 745, 691 A.2d 946, 948 (1997), appeal denied, 550 Pa. 703, 705 A.2d 1307 (1997). Therefore, at this stage the mere introduction of the blood test is enough to prove a prima facie case, see Commonwealth v. Rick, 244 Pa. Super. 33, 366 A.2d 302 (1976) (chemist’s report which would have been inadmissible on its own at trial was sufficient for a prima
ORDER
And now, May 22, 2002, upon consideration of the omnibus pretrial motion of defendant Christine Hausman, and after a hearing on the motion, for the reasons stated in the accompanying memorandum opinion;
It is hereby ordered that the motion to suppress statements is denied;
It is further ordered that the motion to suppress physical evidence is denied;
It is further ordered that the motion to preclude expert testimony is denied without prejudice subject to a full Frye hearing;
It is further ordered that the petition for writ of habeas corpus is denied.
.75Pa.C.S. §3731(a)(2).
.35 P.S. §780-113(a)(32).
. Commonwealth’s exhibit 4.
. Notes of testimony^ preliminary hearing, October 18,2001 (N.T.) at 3.
. Id. at 30.
. Id. at 3.
. Id. at 15.
. Id. at 15-16.
. Id.
. N.T. at 27.
.74 at 17.
.74 at 17-18.
.74 at4,8.
. We also note that the defendant’s initial admission to EMT Matchette that she had used heroin was not in response to a custodial interrogation. Spontaneous, volunteered statements which are not the result of custodial interrogation are not subject to suppression. Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (2001). “When a defendant gives a statement without police interrogation, we consider the statement to be ‘volunteered’ and not subject to suppression for lack of Miranda warnings. . . . Interrogation is police conduct ‘calculated to, expected to, or likely to evoke admission.’ ” Commonwealth v. Brown, 551 Pa. 465, 481, 711 A.2d 444, 451 (1998) (citations omitted). See also, Commonwealth v. Gibson, 553 Pa. 648, 720 A.2d 473 (1998), cert. denied, 528 U.S. 852, 120 S.Ct. 132, 145 L.Ed.2d 819 (2000); Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711 (1998), cert denied, 528 U.S. 827, 120 S.Ct. 78, 145 L.Ed.2d 66 (1998). The defendant initially told Mr. Matchette that she had used heroin in response to his question, “Have you consumed any alcohol?” She was neither in custody nor subject to interrogation, but rather volunteered the information.
. We also find that the question asked of the defendant, “Have you had any drags or alcohol?” was not designed to elicit an incriminating remark, and therefore did not constitute interrogation. See Commonwealth v. Thompson, 778 A.2d 1215 (Pa. Super. 2001); Commonwealth v. Turner, 772 A.2d 970, 974 (Pa. Super. 2001); Commonwealth v. Whitehead, 427 Pa. Super. 362, 368, 629 A.2d 142 (1993). In order for Miranda warnings to be required in a custodial setting, the person detained must be subjected to questioning that is reasonably likely to elicit an incriminating response. Thompson, supra at 1221; Turner, supra at 974; Commonwealth v. Whitehead, 427 Pa. Super. 362, 368, 629 A.2d at 145. Specifically, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perception of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. ” Id. (emphasis added)
When Officer Billera asked the defendant if she had consumed alcohol or drags, he was conducting an investigation, not interrogating the
. Mat 4,8.
. Nevada is the only state in this country that has adopted a standard for the level of a controlled substance in the blood which would render one incapable of safe driving. See Nev. Rev. Stat. 484.379(3):
“It is unlawful for any person to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access with an amount of a prohibited substance in his blood or urine that is equal to or greater than:
Prohibited substance Urine Blood
Nanograms per Nanograms per milliliter milliliter
(a) Amphetamine 500 100
(b) Cocaine 150 50
(c) Cocaine metabolite 150 50
(d) Heroin 2,000 50
(e) Heroin metabolite:
(1) Morphine 2,000 50
(2) 60 monoacetyl morphine 10 10
(f) Lysergic acid diethylamide 25 ' 10
(g) Marijuana 10 2
(h) Marijuana metabolite 15 5
(i) Methamphetamine 500 100
(j) Phencyclidine 25 10”
We must also note that this statute has been criticized because “the low drug thresholds included in the legislation would result in DUI convictions for people who were not impaired.” See Peter O’Connell, Impairment Statute Useless, Attorney Says, Las Vegas Review-Journal, October 19, 2000 available at http://www.lvrj.com/lvrj_home/2000/ Oct-19-Thu-2000/news/14639211.html. Additionally, in the Nevada case of Statev. Williams, 50P.3d1116(2002)thedefendantwas found guilty based on the level of marijuana found in her blood, which exceeded the
. See Commonwealth’s exhibit 2.
. Dr. Fritch testified at the pretrial motions hearing that he based his expert opinion on several studies conducted in Belgium, Germany and Sweden. He also testified that based on his own familiarity with the drug, the defendant’s judgment would be impaired at 200 nanograms per milliliter. However, he also testified that heroin is rapidly broken down first into six monoacydl morphine (“six mam”) and then into morphine in a time period that can be as short as two hours, so he could not testify as to the level of morphine in the defendant’s blood at the time of the accident.
. Pennsylvania Rule of Evidence 702 governs expert testimony on scientific matters and reads as follows:
“Rule 702. Testimony by experts
“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Pa. R.E. 702.
However, the “[a]doption of Pa. R.E. 702 did not alter Pennsylvania’s adoption of the standard in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), which requires scientific evidence to have ‘general acceptance’ in the relevant scientific community.” Comment to Pa. R.E. 702. The test for the admissibility of expert opinions on scientific matters was originally set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and was adopted in Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). The court in Topa held that “[the admissibility of the [scientific] evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 231, 369 A.2d at 1281. The general consensus in Pennsylvania appellate case law is that the scientific methodology used and the conclusions reached by the expert must both be generally accepted in the scientific community. See Thomas v. West Bend Co., 760 A.2d 1174, 1179 (Pa. Super. 2000) (“Frye applies to scientific evidence itself, not merely to the methodology underlying such evidence.”); Commonwealths Blasioli, 552 Pa. 149, 153, 713 A.2d 1117, 1119 (1998)(“both the theory and technique underlying novel scientific evidence must be generally accepted.”); Blum v. Merrell Dow Pharmaceuticals Inc., 705 A.2d 1314, 1322 (Pa. Super. 1997) (Scientific methodology and conclusions must mutually be scrutinized by the court to ensure that what might appear to the jury to be science is not in fact speculation in disguise.). See also, Thomas v. West Bend, supra, 760 A.2d at 1179 n.3. But, see Trach v. Thrift Drug Inc., 46 D.&C.4th 231, 248 (2000) (holding that either the methods or conclusions reached by the expert must pass the Frye test).