Commonwealth v. Allen

575 A.2d 131, 394 Pa. Super. 127, 1990 Pa. Super. LEXIS 950
CourtSupreme Court of Pennsylvania
DecidedMay 15, 1990
Docket593
StatusPublished
Cited by13 cases

This text of 575 A.2d 131 (Commonwealth v. Allen) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Allen, 575 A.2d 131, 394 Pa. Super. 127, 1990 Pa. Super. LEXIS 950 (Pa. 1990).

Opinions

[129]*129DEL SOLE, Judge:

Daniel Allen, Appellant, was convicted of Driving Under the Influence (DUI), 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). Post-verdict motions were denied and Allen was sentenced. On appeal he raises five issues. Because all of the issues are meritless, we affirm the trial court’s judgment of sentence.

Allen’s conviction for DUI was the culmination of a complicated procedural process. Allen was arrested for DUI under 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). Police took him to Ellwood City Hospital where a blood sample was taken. The sample was given to the arresting officer who took it back to the Ellwood City Police Station and placed it in a refrigerator. The following day another officer took the only blood sample in the police station refrigerator to St. Francis Hospital for chemical testing. The hospital reported that the blood alcohol level in the sample was 0.16%.

At a preliminary hearing, the arresting officer attempted to introduce the blood test results into evidence. Allen’s attorney objected, asserting that the officer did not lay a proper foundation to establish that St. Francis was an approved laboratory for chemical testing in DUI cases. The District Justice sustained the objection and the blood test results were not admitted into evidence.

The arresting officer then moved to withdraw the complaint against Allen which was granted. All of the charges against Allen were withdrawn and he was discharged. Notice of the withdrawal was sent to Allen and he was informed that the complaint against him would be re-filed. Three days later a second complaint was filed against Allen and he received service of both the new complaint and a summons. Despite defense counsel objections, a second preliminary hearing was held at which a prima facie case against Allen was established. He was bound over to court.

Allen filed a pre-trial omnibus motion challenging the Commonwealth’s procedures regarding the filing of the [130]*130second complaint. The trial court ordered the case dismissed. Twenty-two days later the court amended its order, withdrew the dismissal of the case against Allen and dismissed the omnibus motion. Allen filed a petition for a writ of habeas corpus and/or a motion to dismiss and/or strike the order of court, arguing that the court lacked authority to issue the second order withdrawing the dismissal of the case without prior notice to the parties. The basis for this argument was 42 Pa.C.S.A. § 5505. A hearing was held, and although the Commonwealth agreed with Allen’s position, the trial court denied his petition.

At a non-jury trial, Allen argued that no evidence was presented to show that Ellwood City Hospital was an approved laboratory for withdrawing blood samples, the blood withdrawal was not properly supervised, the procedures used for withdrawal and transportation of the blood were improper, the laboratory technician was not supervised or qualified to draw blood and the chain of custody of the blood sample was broken. Despite his arguments, the blood sample was admitted into evidence and Allen was found guilty of both charges of DUI.

The first issue raised by Allen on appeal is whether he was entitled to have the charges against him dismissed because the initial charges against him were withdrawn and the second complaint was filed without a re-arrest. We hold that there was no need for the Commonwealth to re-arrest Allen.

In a court case, the issuing authority may, in its discretion, issue a summons or a warrant of arrest if the offense charged is punishable by a sentence of more than one year and less than five years in prison. Pa.Rules of Crim.Proc., Rule 102(c). Driving under the influence is a misdemeanor of the second degree. It is punishable by a sentence of not more than two years in prison. 18 Pa.C.S.A. § 106(b)(7). Consequently, the service of a summons on Allen was a proper method to reinstitute the charges against him. The fact that this service was enough to make Allen appear at the subsequent preliminary hearing belies the argument [131]*131that a second arrest was required. There is no authority which requires the Commonwealth to re-arrest a person in order to begin a subsequent prosecution for the charge of DUI.

The second issue is whether the trial court lacked the authority to reinstate the charges and withdraw the court ordered dismissal within thirty days of the initial order, without prior notice to the parties. This issue is also meritless. The statute Allen bases his argument on is 42 Pa.C.S.A. § 5505. This statute reads:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within thirty days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or filed.
42 Pa.C.S.A. § 5505

The statute contains no requirement that the court give the parties prior notice before modifying or withdrawing an order. Allen has presented us with no authority which would require such a reading of the statute. According to the statute, a court must notify the parties when it modifies or rescinds an order, but this notice does not have to be prior to the modification.

The third issue raised by Allen is whether the trial court erred in introducing evidence of the blood test at trial because the chain of custody was broken. We say no. The Commonwealth presented testimony which showed who had possession and control of the blood sample from the time it was withdrawn from Allen to the time it was tested and brought to court. There is no need for the Commonwealth to prove beyond a doubt the sanctity of a blood sample after it is withdrawn from a driver. The Commonwealth must simply establish a reasonable inference that the sample was unimpaired until it was brought to court. Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975).

The fourth issue raised by Allen is whether the trial court erred in introducing the blood test results because the blood sample was not withdrawn at an approved clinical [132]*132laboratory, the blood test was not properly supervised and the test was not administered by a laboratory technician. Again, we hold that the trial court did not err.

Allen was convicted of 75 Pa.C.S.A. § 3731(a)(1), driving or being in the actual physical control of a vehicle while “under the influence of alcohol to a degree which renders the person incapable of safe driving;” and 75 Pa.C.S.A. § 3731(a)(4), driving or being in actual physical control of a vehicle while “the amount of alcohol by weight in the blood of the person is 0.10% or greater.” In order to support a conviction under 3731(a)(4), the Commonwealth may present tests performed on a defendant’s blood or breath if the “tests were conducted by qualified persons using approved equipment____” 75 Pa.C.S.A. § 1547(c). Specifically,

Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as “The Clinical Laboratory Act.” 75 Pa.C.S.A. § 1547(c)(2).

The trial court wrote that:

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Commonwealth v. Allen
575 A.2d 131 (Supreme Court of Pennsylvania, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
575 A.2d 131, 394 Pa. Super. 127, 1990 Pa. Super. LEXIS 950, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-allen-pa-1990.