Commonwealth v. Rick

366 A.2d 302, 244 Pa. Super. 33, 1976 Pa. Super. LEXIS 3006

• Court: Superior Court of Pennsylvania
• Decided: November 22, 1976
• Docket: 23
• Status: Published

Opinions

PRICE, Judge:

On the evening of April 25, 1974, Pennsylvania State Police Trooper Barry J. Kostival was sent to investigate the scene of an accident in the vicinity of Sandy Hollow Road in West Hanover Township, Dauphin County. When he arrived, he learned that the driver, appellant, had been taken to the hospital. Trooper Kostival went to the hospital intending to interview appellant, but learned that appellant was being treated for injuries and could not then be interviewed. The trooper talked to Dr. J. Stanley Smith, the attending physician, who offered Trooper Kostival a copy of a report of the blood test which had been performed on appellant at the request of appellant’s wife. After seeing the test results, Trooper Kostival instituted a complaint against appellant for driving while under the influence of intoxicating liquor. On November 22, 1974, appellant was convicted of that charge by a judge sitting without a jury. We affirm.

Appellant raises two allegations of error. The first is that the return of the district justice should have been quashed because the evidence produced at the preliminary hearing did not establish a prima facie case. At that hearing, the Commonwealth produced the testimony of Trooper Kostival and the chemist’s report which indicated that shortly after the accident, appellant’s blood-alcohol level was .18%. Appellant objected to the chemist’s report on the grounds that it was hearsay. Appellant now contends that because the only evidence of his intoxication was hearsay, the evidence was insufficient to establish a prima facie case. We disagree.

The distinction between a preliminary hearing and the trial itself is well settled. While a trial determines guilt or innocence, the “preliminary hearing is held primarily to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection.” Commonwealth v. O’Brien, 181 Pa.Super. 382, 396, 124 A.2d 666, 673 (1956). See also Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964); Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741 (1975).

The question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime. In this case, the chemist’s report, alone, would have been inadmissible at trial to prove appellant was intoxicated. However, the district justice acted correctly in admitting the report to determine that there may have been a crime committed and that appellant may have been involved. Certainly, the difference in purpose between a preliminary hearing and a trial dictates a different enforcement of the rules of evidence.¹

In Commonwealth v. Banks, 228 Pa.Super. 308, 323 A.2d 780 (1974), the defendant contended that it had been error to admit a chemist’s report at the preliminary hearing. Without reaching the hearsay question, this court held that appellant’s contention was meritless, citing Commonwealth ex rel. Maisenhelder v. Rundle, supra, and Commonwealth v. Smith, 212 Pa.Super. 403, 244 A.2d 787 (1968). Cf. Commonwealth v. Burger, 195 Pa.Super. 175, 171 A.2d 599 (1961). Therefore, the district justice did not err in considering the chemist’s report, and the Commonwealth introduced sufficient evidence to meet its burden at a preliminary hearing.

Appellant’s second contention is that the lower court erred in admitting evidence of his blood-alcohol level at trial because the “chain of custody” of the blood sample was not sufficiently established. Dr. J. Stanley Smith, chief resident in surgery at the Polyclinic Hospital, testified that on the night of the accident he admitted appellant to the hospital. The Commonwealth then introduced Commonwealth’s Exhibit No. 1, a test tube containing a partially frozen blood sample. Permanently attached to the top of the tube was a white piece of paper bearing the inscription, “Rick, Robert 4-26-74 er.” Dr. Smith testified that the writing looked like his own, but he could not be certain.

Dr. Smith testified that after taking the sample, he handed it to an unknown laboratory technician, who, he understood, was responsible for taking it to the laboratory. Dr. Griswold, the hospital’s clinical chemist, identified the tube as the one that he received on April 26, 1974. Dr. Griswold testified that one of the lab technicians placed the sample in the section of the lab refrigerator reserved for toxicology. At that time, it was the only tube in the section.

Appellant contends that the chain of custody was not established because the lab technician did not testify and because many people had access to the refrigerator. However, it is well established that the Commonwealth need not produce every individual who came into contact with an item of evidence, nor need it eliminate all possibilities of tampering. The Commonwealth need only establish a “reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court.” Commonwealth v. Miller, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975). See also Commonwealth v. Jenkins, 231 Pa.Super. 266, 332 A.2d 490 (1974). In this case, the Commonwealth has met that burden.

The judgment of sentence of the lower court is affirmed.

SPAETH, J., files a dissenting opinion.

1 . If, at the preliminary hearing, it had been clearly established that the Commonwealth would be able to produce only hearsay evidence at trial, the result in this case might be different. Under those circumstances a district justice could justifiably conclude that submitting the case to the grand jury would be a-waste of time. Here, however, there was nothing to indicate to the district justice that the Commonwealth would not be able to produce the chemist himself at trial. The Commonwealth explained to the district justice that the chemist, Dr. Griswold, was out of town for the week. Dr. Griswold was available for appellant’s trial and did in fact testify.