J-A01016-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LATOYA N. HICKSON                          :
                                               :
                       Appellant               :   No. 1132 EDA 2018

           Appeal from the Judgment of Sentence November 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): MC-51-CR-0030427-2016

BEFORE:      NICHOLS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                             FILED JANUARY 28, 2020

       Latoya H. Hickson (Appellant) appeals from the judgment of sentence

imposed following her conviction of driving under the influence (DUI) – highest

rate of alcohol.1 We affirm.

       The facts of this case are not in dispute. On the night of October 26,

2016, Appellant was arrested on Germantown Avenue in Philadelphia,

Pennsylvania, on suspicion of driving under the influence of alcohol. Following

transport to police headquarters, Appellant took a breathalyzer test, which

indicated that her blood alcohol content (BAC) was 0.225, well above the legal

limit. Consequently, Appellant was charged with, inter alia, DUI – highest rate

of alcohol under Section 3802(c) of the Pennsylvania Vehicle Code.

____________________________________________


*Retired   Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(c).
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       During discovery in an unrelated case, the Commonwealth learned that,

on June 4, 2016 (roughly five months before Appellant’s breathalyzer test),

the device the police used to test Appellant’s BAC had produced two results

on another individual that differed from one another by .020. Consequently,

the police took that device out of service for maintenance and accuracy

calibrations.   On July 1, 2016, Officer Mary Beth Novak (Officer Novak), a

police officer certified in the operation, maintenance, and calibration of

breathalyzers, see N.T., 6/21/17, at 28, recalibrated the device and tested it

for accuracy.     Officer Novak determined that the device complied with the

applicable regulations and that no repairs to the device were necessary.

Officer Novak therefore placed the breathalyzer back into service.

       On April 3, 2017, Appellant filed a motion to suppress the results of her

breathalyzer test.2 Specifically, Appellant alleged that the police should have

removed the breathalyzer from service and repaired it before placing the

device back into service, rather than merely recalibrating and retesting it. On

June 21, 2017, the Philadelphia Municipal Court held a hearing on Appellant’s

suppression motion. On July 6, 2017, the municipal court denied the motion.

       On October 11, 2017, the municipal court found Appellant guilty of DUI

– highest rate of alcohol.         On November 15, 2017, the municipal court


____________________________________________


2  Along with Appellant, several other criminal defendants, upon whom the
police used the breathalyzer at issue after its return to service, filed identical
suppression motions. The Philadelphia Municipal Court consolidated each of
the motions for disposition.

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sentenced Appellant to 72 hours to 6 months of incarceration. On December

6, 2017, Appellant filed a writ of certiorari to the Philadelphia County Court of

Common Pleas challenging the denial of her suppression motion. On February

16, 2018, the Philadelphia Court of Common Pleas denied Appellant’s petition

for a writ of certiorari. This timely appeal followed.

      Appellant presents the following issue for review:

      Where a breathalyzer machine produced BAC measurement
      results with such a variance between the results as to violate the
      regulations governing the use of breathalyzer machines, and
      where the Commonwealth then failed to have the machine
      serviced, repaired or adjusted as required by the regulations, did
      not the lower court err by failing to suppress breath test results
      for [] Appellant which were subsequently obtained through the
      use of that faulty breathalyzer machine?

Appellant’s Brief at 3.

      Appellant challenges the denial of her suppression motion. Our standard

of review is as follows:

      [An appellate court’s] standard of review in addressing a challenge
      to the denial of a suppression motion is limited to determining
      whether the suppression court’s factual findings are supported by
      the record and whether the legal conclusions drawn from those
      facts are correct. Because the Commonwealth prevailed before
      the suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, [the appellate court] is bound by [those]
      findings and may reverse only if the court’s legal conclusions are
      erroneous. Where . . . the appeal of the determination of the
      suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to [ ] plenary review.

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Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation

omitted).   Our scope of review from a suppression ruling is limited to the

evidentiary record that was created at the suppression hearing. In re L.J.,

79 A.3d 1073, 1087 (Pa. 2013).

      Appellant argues that the trial court erred in denying her suppression

motion.     Specifically, Appellant asserts that because the breathalyzer

produced results when the police used it on another individual that differed by

.020 prior to its use on Appellant, the applicable regulations dictate that the

police should have serviced and repaired the machine upon its removal from

service — as opposed to simply recalibrating and retesting it.         Appellant

contends that because the police did not service or repair the breathalyzer

following the deviation, the trial court erred in failing to suppress the results

of her breathalyzer test.

      The General Assembly has provided that the results of breathalyzer tests

are admissible in court under the following circumstances:

      (c) Test results admissible in evidence.--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 amount of alcohol or
      controlled substance in the defendant’s blood, as shown by
      chemical testing of the person’s breath or blood, which tests were
      conducted by qualified persons using approved equipment, shall
      be admissible in evidence.

      (1) Chemical tests of breath shall be performed on devices
      approved by the Department of Health using procedures
      prescribed jointly by regulations of the Departments of Health and
      Transportation. Devices shall have been calibrated and tested for

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      accuracy within a period of time and in a manner specified by
      regulations of the Departments of Health and Transportation. For
      purposes of breath testing, a qualified person means a person who
      has fulfilled the training requirement in the use of the equipment
      in a training program approved by the Departments of Health and
      Transportation. A certificate or log showing that a device was
      calibrated and tested for accuracy and that the device was
      accurate shall be presumptive evidence of those facts in every
      proceeding in which a violation of this title is charged.

75 Pa.C.S.A. § 1547(c)(1).

      The regulations, mentioned above, which govern the calibration and

testing of breathalyzers, state, in pertinent part as follows:

      (b) Procedures. Alcohol breath tests shall be conducted by a
      certified breath test operator. Accuracy inspection tests and
      calibrations conducted using breath test equipment shall be
      performed by a certified breath test operator, the manufacturer
      or its authorized representative or a person who has received
      comparable training or instruction. Alcohol breath tests, accuracy
      inspection tests and calibrations conducted using breath test
      equipment shall be performed in accordance with accepted
      standard procedures for operation specified by the manufacturer
      of the equipment or comparable procedures. The procedures for
      alcohol breath testing shall include, at a minimum:

         (1) Two consecutive actual breath tests, without a required
         waiting period between the two tests.

         (2) One simulator test using a simulator solution designed to
         give a reading of .10%, to be conducted immediately after the
         second actual alcohol breath test has been completed. The
         lower of the two actual breath test results will be the result
         used for prosecution. The test results will be disregarded, and
         the breath test device will be removed from service under §
         77.25(b)(4) (relating to accuracy inspection tests for Type A
         equipment) if one of the following occurs:

            (i) If the difference between the results of the two actual
            alcohol breath tests is .02 or more, for machines read to the
            second decimal place, or .020 or more for machines read to
            the third decimal place.

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             (ii) If the simulator test yields a result less than .09% or
             greater than .10% when the breath test device is read to
             the second decimal place, or if the simulator test yields a
             result less than .090% or greater than .109% when the
             breath test device can be read to the third decimal place.

      (c) Procedures for adjustment. Breath test equipment which fails
      the testing under § 77.25(b) or subsection (b) shall be placed out
      of service and shall be serviced, repaired and adjusted, as
      necessary, by the manufacturer or its authorized representative
      or a person who has received comparable training or instruction
      prior to being placed back into service. In addition, the breath
      test device shall be tested under subsection (b) prior to being
      placed back into service.

67 Pa. Code § 77.24(b)-(c).

      Appellant recognizes the authority articulated by this Court in

Commonwealth v. Demor, 691 A.2d 958 (Pa. Super. 1997).                      See

Appellant’s Brief at 28 (“Appellant concedes that if Demor controls, the denial

of suppression here is correct under that holding.”).         In Demor, we

interpreted the regulations governing the admission of breathalyzer tests. We

explained:

      We interpret the regulations to mean that pursuant to Sections
      77.24(b)(2)(i) and 77.24(c), when the results of two consecutive
      breath tests deviate from one another by .020[] or greater, the
      breathalyzer machine must be tested for accuracy and
      calibrations, and, then, if necessary, serviced, repaired or
      adjusted. After the necessary repairs or adjustments have been
      made, the machine is to be re-tested for accuracy and calibrations
      under Section 77.24(b) to ensure that any defects in the machine
      have been corrected. We explicitly find that only those machines
      which have failed accuracy and calibrations testing under Sections
      77.24(b) or 77.25(b) must be
      serviced, repaired or adjusted as needed, and then re-tested for
      accuracy and calibrations. To interpret the Code as requiring
      service, repair or adjustment of the machine before

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     determining that the machine is malfunctioning defies
     common sense.

Id. at 962 (emphasis added).

     Applying this rationale to the facts before it, the Court in Demor

explained:

     Here, it is undisputed that the breath test results of the last
     suspect who used the same machine as appellant deviated by
     .020[] or greater. It is also undisputed that the breathalyzer
     machine was placed out of service and tested for accuracy and
     calibrations on January 10, 1995, two days after the last variance
     incident prior to appellant’s test. Since the machine passed the
     accuracy and calibrations tests, Technician Richey determined
     that the machine did not need to be serviced, repaired or
     adjusted. Therefore, the breathalyzer machine was put back into
     service and, on January 28, 1995, appellant was tested on the
     machine. We find that this was not error and satisfied the Code’s
     mandates. Accordingly, the lower court did not err in failing to
     suppress the results of appellant’s breathalyzer test.

Id. (footnote omitted).

     We find this case analogous to Demor.             Here, the police —

approximately five months prior to their encounter with Appellant — used the

breathalyzer at issue to test the BAC of another individual, and the machine

produced two separate results that differed by .020. As with Demor, the

police took the device out of service, recalibrated it, and retested it for

accuracy. See N.T., 6/21/17, at 37-38. Based on the retesting, the police

determined that the breathalyzer did not need repair, and placed the machine

back into service. See N.T., 6/21/17, Commonwealth’s Exhibit 2 (Certificate

of Breathtesting Device Calibration, 7/1/16). There is no evidence that the

breathalyzer malfunctioned when the police used it on Appellant. See N.T.,

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6/21/17, at 23.   Therefore, we conclude that police actions satisfied the

mandates of the regulations and Demor. Accordingly, the trial court did not

abuse its discretion in denying Appellant’s suppression motion.

     Although Appellant recognizes the authority of Demor, she nevertheless

asserts that we should disregard that decision because it “was simply wrong.”

Appellant’s Brief at 35-36. However, Appellant does not identify any Supreme

Court precedent that calls Demor into question. See id. “It is beyond the

power of a Superior Court panel to overrule a prior decision of the Superior

Court, . . . except in circumstances where intervening authority by our

Supreme Court calls into question a previous decision of this Court.”

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (citation

omitted).

     Consistent with the foregoing, Appellant’s suppression issue lacks merit.

We therefore affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/20




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