Com. v. Alterio, C.

• Court: Superior Court of Pennsylvania
• Decided: August 29, 2014
• Docket: 2147 MDA 2013
• Status: Unpublished

Opinion

J-A18023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CODY ELLEN ALTERIO

Appellant No. 2147 MDA 2013

Appeal from the Judgment of Sentence of November 12, 2013 In the Court of Common Pleas of Centre County Criminal Division at No.: CP-14-CR-0001903-2012

BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.: FILED AUGUST 29, 2014

Cody Alterio appeals her November 12, 2013 judgment of sentence.

We affirm.

On September 10, 2012, Margie Schreffler called the Bellefonte Police

ving around snorting bath salts[1]

and saying something about not letting the bitch out of her trunk until she

eventually spotted her exiting a silver Nissan Altima, which was parked in

____________________________________________

contain synthetic cathinones such as mephedrone. See 35 P.S. §§ 780 104(1)(iii)(17) (25), (vii)(1) (8), (viii)(1) (9). J-A18023-14

Id. at 9. Alterio admitted to

Officer A

this encounter, that she had recently tried bath salts. Alterio stated that her

estranged boyfriend had been sneaking another woman into the trunk of her

vehicle. Convinced that someone was hiding in her vehicle, Alterio

requested that Corporal Igoe search her trunk.

Berry, found two small clear plastic bags that are commonly used to package

illegal drugs. Thereafter, Alterio consented to a search of her entire vehicle.

During that search, Officer Berry and Corporal Igoe discovered fifty-seven

vehicle. Six of those stamp bags contained residue that tested positive for

heroin. Additionally, Officer Berry and Corporal Igoe found a small zip-top

Alterio failed a standard field sobriety test and subsequently was

arrested and charged with two counts of driving under the influence of a

controlled substance and one count of possession of drug paraphernalia. 2 A

drug recognition expert evaluated Alterio and concluded that she was under

the influence of bath salts and heroin. Alterio also consented to a blood test,

2 75 Pa.C.S. §§ 3802(D)(1)(iii), 3802(D)(2), and 35 P.S. § 780- 113(A)(32), respectively.

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which revealed the presence of morphine3

forty-eight nanograms per milliliter.

Alterio proceeded to a non-jury trial on June 17, 2013. During that

toxicology report, which

she contended was inadmissible pursuant to 75 Pa.C.S. § 1547(c)(4). N.T.

at 45. Specifically, Alterio argued that the report was inadmissible because

4 he Id. The trial court admitted the toxicology report into ____________________________________________

3 Morphine is both a schedule II controlled substance and a metabolite of heroin, which is a schedule I controlled substance. See 35 P.S. §§ 780- 101, et seq. 4

-related DUI context as follows:

[Blood s]erum is acquired after a whole blood sample is centrifuged, which separates the blood cells and fibrin, the the clear liquid is the blood serum. When blood serum is tested the results will show a blood alcohol content which can range from between [ten] to [twenty] 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 cal[c]ulate the corresponding alcohol content in the original whole blood sample.

Commonwealth v. Michuck, 686 A.2d 403, 405 06 (Pa. Super. 1996) (internal citations, quotation marks, and footnotes omitted).

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two counts of driving under the influence of a controlled substance and one

count of possession of drug paraphernalia.5 On September 6, 2013, the trial

On November 27, 2013, Alterio filed a timely notice of appeal. 6 On

December 2, 2013, Alterio filed a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). On January 15, 2014, the trial

court issued an opinion pursuant to Rule. 1925(a).

Alterio presents the following issue for our consideration:

Because 75 Pa.C.S. §1547(c)(4) specifically requires the Department of Health to establish minimum levels of a schedule I, non-prescribed schedule II, and non-prescribed schedule III substances or their metabolites in blood in order for the test results to be admissible, and case law clearly defines blood as whole blood, the trial court erred as a matter of law in admitting

m the testimony clearly showed what went into the chromatograph for testing was not whole blood, and no conversion factor was testified to that gave a whole blood equivalent test result.

5 On June 17, 2013, the Commonwealth withdrew one count of DUI (75 Pa.C.S. § 3802(d)(2)), and replaced it with a charge under a different subsection (75 Pa.C.S. § 3802(d)(1)(ii)). 6 On September 13, 2013, Alterio timely filed a motion to modify her sentence, which the trial court granted on November 7, 2013. On November e to run concurrently to

27, 2013 notice of appeal was timely filed. See Pa.R.A.P. 903.

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Brief for Alterio at 1 (minor modifications for clarity).

Alterio principally argues that the trial court erred in admitting the

results of her blood test because the Commonwealth conducted that test on

e. The admission

of evidence is within the sound discretion of the trial court and will not be

reversed absent an abuse of discretion. Commonwealth v. Priest, 18 A.3d

1235, 1240 41 (Pa. Super. 2011). An abuse of discretion occurs when the

trial court mi

unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown

Commonwealth v. Borovichka, 18 A.3d

1242, 1253 (Pa. Super. 2011) (citation omitted).

Alterio was convicted under DUI subsections 3802(d)(1)(iii) and

3802(d)(1)(ii), which provide as follows:

An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1) any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) or (ii).

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75 Pa.C.S. § 3802(d) (footnote omitted; emphasis added).

The admissibility of chemical testing in DUI cases is governed by 75

Pa.C.S. § 1547(c). In pertinent part, that provision states:

In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the

blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.

***

(4) For purposes of blood testing to determine the amount of a Schedule I or nonprescribed Schedule II or III controlled substance or a metabolite of such a substance, the Department of Health shall prescribe minimum levels of

blood in order for the test results to be admissible in a prosecution for a violation of [sub]section 1543(b)(1.1), 3802(d)(1), (2) or (3) or 3808(a)(2).

75 Pa.C.S. § 1547(c) (footnote omitted). Pursuant to subsection

1547(c)(4), the Pennsylvania Department of Health has set the minimum

detection level for morphine at five nanograms per milliliter.7 See 42 Pa.

Bull. 110 (Jan. 7, 2012).

report indicated that her blood

contained forty-eight nanograms per milliliter of morphine, a level well ____________________________________________

7 In 2014, the Department of Health decreased the threshold amount of morphine required to be present in an admissible blood sample to two nanograms per milliliter. See 44 Pa. Bull. 132 (Jan. 4, 2014). Nevertheless,

was five nanograms per milliliter.

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however, takes issue with the fact that only her blood serum, rather than

her w

subsection 1547(c)(4) requires that the Commonwealth establish that the

(rather than blood serum) exceeded the Department

detection level. Hence, we must determine whether section 1547 imposes

such a requirement.

The interpretation of a statute presents a question of law, as to which

our standard of review is de novo. Commonwealth v. Van Aulen, 952

A.2d 1183, 1184 (Pa. Super. 2008).

Our task in construing a statute is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions. When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

Commonwealth v. Steffy, 36 A.3d 1109, 1111 (Pa. Super. 2012) (quoting

Commonwealth v. Sarapa, 13 A.3d 961, 964 (Pa. Super. 2011)).

Although 75 Pa.C.S. § 1547(c) indicates that the results of blood tests

are admissible in DUI proceedings, and grants to the Department of Health

the authority to regulate the procedures and equipment used to conduct

those tests, the statute does not dictate any particular form of blood that

must be tested. Instead, the statute merely refers to the generic term

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Vehicle Code.8

component parts, we find the term to be ambiguous. See Commonwealth

v. Dagnon

question that both whole blood and blood serum may be utilized to analyze a

In Commonwealth v. Dagnon, 605 A.2d 360 (Pa. Super. 1992), we

case, Dagnon, a motorist who had been involved in a fatal vehicle accident,

was charged with, inter alia, DUI. In its prosecution, the Commonwealth

-accident blood alcohol test,

8 The General Assembly has defined other related phrases that are

[a]nalysis performed on a biological material, including but not limited to breath, blood or urine, to determine the identity or concentration or both of particular constituents such as alcohol or controlled substances. Test procedures may rely on one or more physical or chemical properties of the constituent and utilize instrumental or chemical analysis techniques to accomplish the determination.

75 Pa.C.S. § 102 (emphasis added). Similarly, our Motor Vehicle Code

intended to be used and is maintained or operated for the purpose of transporting blood or blood products Id. (emphasis added). The language used by the General Assembly in defining these terms does not demonstrate any clear intent to distinguish between whole blood and blood serum.

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Dagnon filed a pretrial motion to suppress the blood serum test

results, arguing that they were inadmissible pursuant to subsection 1547(c).

See

blood alcohol tests to be conducted on whole blood in order to be admissible

in DUI prosecutions.

the Department, in performance of its regulatory function under 75 Pa.C.S. § 1547(c), published a list covering the year in which the within incident occurred that approved various laboratories to conduct blood alcohol tests utilizing both whole blood and blood serum. See 20 Pa.Bull. 306. Consequently, it has interpreted the term to include blood in either of those forms. Since the interpretation that an administrative agency gives to a statutory provision that it is charged with applying is entitled to deference, see Masland v. Bachman, 374 A.2d 517 (Pa. 1977), and since we find the Department reasonable, we adopt it as being in conformity with legislative intent.

Dagnon, 605 A.2d at 362 (citations modified).

Since our decision in Dagnon, the General Assembly has made

substantive amendments to section 1547, including the addition of

subsection 1547(c)(4), which directs the Department of Health to establish

minimum levels of controlled substances required to be present in admissible

test results. Moreover, our DUI statute has also undergone major revisions

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post-Dagnon. See 75 Pa.C.S. § 3731 (repealed by 2003, Sept. 30, P.L.

to re-examine section 1547.

It is well-settled that our task in construing a statute is to ascertain

and effectuate the intent of the General Assembly. Steffy, supra. In order

examine: (1) the occasion and necessity for the statute; (2) the

circumstances under which it was enacted; (3) the mischief to be remedied;

(4) the object to be attained; (5) the former law, if any, including other

statutes upon the same or similar subjects; (6) the consequences of a

particular interpretation; (7) the contemporaneous legislative history; and

(8) legislative and administrative interpretations of such statute. 1 Pa.C.S.

§ 1921(c). In this instance, we base our analysis primarily upon the

ation of section 1547 as demonstrated by

the pervasive regulatory framework that the Department has set forth.

As we noted in Dagnon, the Department of Health, as is required by

section 1547, has issued extensive regulations relating to the screening of

blood for the presence of alcohol and controlled substances and the

procedures and equipment to be used to conduct such tests. See e.g., 28

Pa. Code 5.1 5.104. For example, the Department has complied with the

dictates of subsection 1547(c)(2)(ii), which provides as follows:

(ii) For purposes of blood and urine testing to determine blood alcohol or controlled substance content levels, the procedures and equipment prescribed by the Department of

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Health shall be reviewed within 120 days of the effective date of this subparagraph and at least every two years thereafter to ensure that consideration is given to scientific and technological advances so that testing conducted in accordance with the prescribed procedures utilizing the prescribed equipment will be as accurate and reliable as science and technology permit.

75 Pa.C.S. § 1547(c)(2)(ii).

Pursuant to subsection 1547(c)(2)(ii), the Department has published a

list of laboratories that are approved to conduct testing for alcohol and/or

controlled substances. See 42 Pa. Bull. 86 (Jan. 7, 2012). That bulletin is

Blood and/or

Serum Id.

(emphasis added). Therein, the Department clearly states that some

9 Id. Again, subsection 1547(c)(2)(ii)

gives the Department of Health the authority to prescribe the procedures

whole blood or blood serum. It is well-settled that great weight and

deference should be afforded to the interpretation of a statute by an

9 It is undisputed that the Department of Health has licensed NMS Labs,

serum. 42 Pa. Bull. 86 (Jan. 7, 2012).

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administrative agency that is charged with executing and applying it.

Dagnon, 605 A.2d at 362 (citing Masland v. Bachman, 374 A.2d 517 (Pa.

1977)); 1 Pa.C.S. § 1921(c)(8).

Alterio also argues that the Department of Health, in setting minimum

quantitation limits for various controlled substances, necessarily intended

that blood testing be conducted only on whole blood. Brief for Alterio at 13-

s January 7, 2012 bulletin,

which sets the minimum detection levels for controlled substances, describes

the purpose of such minimum levels as follows:

The minimum quantitation limits listed for each controlled substance or metabolite are the lowest concentrations that one or more of the laboratories with the least sensitive procedures in

testing services specified they can reliably determine. . . . Confirmatory analyses employed to substantiate the presence of a drug or drug metabolite generally focus on identifying and quantitatively determining the concentration of the parent drug or a primary metabolite if extensive biotransformation occurs. The detection limits listed were developed by reviewing the minimum reportable concentrations for confirmatory analyses

they could measure. The concentrations listed are the highest [limits of quantitation] that any of the laboratories approved by the Department to test blood for controlled substance content specify they can reliably determine.

42 Pa. Bull. 110 (Jan. 7, 2012).

quantitation limits are to ensure the reliability of blood testing for

controlled substances. The Department sets these minimum quantitation

limits based upon the equipment and procedures, which are used at the

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least sensitive laboratory licensed to conduct such testing. At the time that

s blood was analyzed, the least sensitive laboratory licensed by the

Department of Health was capable of reliably detecting blood levels of

effort to distinguish between whole blood and blood serum, in this context, is

could reliably detect five nanograms of morphine per milliliter of whole

blood, so too could the laboratory reliably detect five nanograms of

morphine per milliliter of blood serum.

Finally, Alterio relies upon Commonwealth v. Wanner, 605 A.2d 805

or

Alterio at 10. In Wanner

sufficiency of the evidence supporting his conviction for an alcohol related

DUI. 605 A.2d at 807. Alterio misunderstands our holding in Wanner,

e our statutes do not dictate in what form

blood must be tested, only evidence of the amount of alcohol by weight in

Wanner, 605 A.2d at 808 (citing Commonwealth v.

Bartolacci, 598 A.2d 287, 288 (Pa. Super. 1991)). Indeed, it is well-settled

that evidence of blood serum or plasma testing, without conversion to a

whole blood result, is insufficient to sustain a conviction for an alcohol-

related DUI. See Wanner, 605 A.2d at 809; Bartolacci, 598 A.2d at 288.

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The whole blood requirement espoused in Wanner was not based 10 Rather, our holding

-related offenses, which

require

percentage range. Wanner, 605 A.2d at 809; see 75 Pa.C.S. §§ 3802(a)-

(c). Unlike alcohol-related offenses, the DUI controlled substance subsection

at issue in the case sub judice, prohibits any amount of a controlled

3802(d)(1). For this

reason, the distinction between whole blood and blood serum is immaterial

for purposes of a conviction under subsection 3802(d)(1). Commonwealth

v. Hutchins

of non-whole blood to whole blood test results is unnecessary because

-alcohol related

DUI cases). Alterio was not charged with an alcohol-related DUI, nor does

she present a challenge to the sufficiency of the evidence. Therefore,

Wanner is misplaced.

For the foregoing reasons, we are unconvinced that either the General

Assembly or the Department of Health

strictly confined to whole blood without any of its constituent parts removed.

10 In fact, one month after our decision in Wanner as used in a prior version of section 1547, encompassed both whole blood and blood serum. Dagnon, 605 A.2d at 362.

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blood test into evidence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/29/2014

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