J-S68011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEITH ALLEN EBERT,

                            Appellant                 No. 2594 EDA 2013


          Appeal from the Judgment of Sentence entered July 5, 2013,
                in the Court of Common Pleas of Lehigh County,
             Criminal Division, at No(s): CP-39-CR-0004816-2012


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED OCTOBER 24, 2014

        Keith Allen Ebert (“Appellant”) appeals from the judgment of sentence

entered after a jury found him guilty of two counts of driving under the

influence (“DUI”), and the trial court found him guilty of summary careless

driving and disorderly conduct.1

        The trial court summarized the pertinent facts as follows:

              [B]etween 3:30 PM and 4:00 PM on March 20, 2012, Jose
        Cruz was at 201 North 2nd Street, sitting on a third floor
        apartment balcony.      Cruz’s 99 Chevy Silverado was parked
        outside in the 200 block of North 2nd Street. Cruz observed a
        blue minivan run a stop sign and hit his truck. Cruz yelled to the
        driver that he was coming downstairs.           When Cruz got
        downstairs, the driver and van were gone. A neighbor called the
        police.   Approximately 5-10 minutes later, while Cruz was
        waiting for the police to come, he saw the same van come back
____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1), 3802(c), 3714(a), and 5503(a)(4).
J-S68011-14


     to the area and park behind his truck on an angle. Cruz
     approached the passenger side of the van to speak with the
     driver, later identified as [Appellant], but the driver exited the
     van and walked away. [Appellant] left the van running, so Cruz
     turned the ignition off and kept the keys until the police arrived.
     Cruz watched [Appellant] walk east towards a church on Turner
     Street, and observed [Appellant] urinate next to the church.

           Officer Michael Beidelman, of the Allentown Police
     Department was dispatched to the area of the 200 block of North
     2nd Street for a motor vehicle accident. When he arrived [in] the
     area, Officer Beidelman saw a blue Mercury Villager minivan
     parked at an angle with its rear end sticking out into the
     roadway. The van had damage to the left headlight/turn signal
     area. Beidelman also saw a Chevy Silverado with minor damage
     to the rear, driver’s side bumper. Beidelman spoke to Mr. Cruz
     and [Appellant], and observed approximately 10-15 other adults
     and children in the area. [Appellant] claimed the group stole his
     wallet, but after looking inside the van, Beidelman discovered
     the wallet under the passenger seat.

           Officer Beidelman noticed [Appellant] was acting nervous,
     had glossy [sic] eyes, and was unsteady on his feet. Beidelman
     called for back-up. Officer Bull arrived and had [Appellant]
     perform standardized field sobriety tests, including a Nystagmus
     test, walk-and-turn, and one-leg stand. Biedleman observed the
     walk-and-turn and one-leg stand tests and determined [that
     Appellant] was under the influence and incapable of safe driving.
     While handcuffing [Appellant], Beidelman detected a moderate
     odor of alcohol. [Appellant] was taken to the booking center.
     Beidelman observed [Appellant’s] blood [being] drawn and saw
     the tubes sealed in an evidence bag.             The blood was
     subsequently sent to Health Network Laboratories for testing.

           Nadine Koenig, a leading technologist in toxicology for
     Health Network Laboratories testified as an expert in the field of
     Forensic Toxicology.       Ms. Koenig certified the results of
     [Appellant’s] blood sample. Koenig noted the tubes in this case
     were not sealed, but the evidence bag they were contained in
     was sealed, and stated the sample would have been rejected by
     the lab if it arrived with no seals on the tube or on the bag.
     Additionally, Koenig described the steps taken with the sample
     from its arrival at the lab through the testing procedure. Testing


                                    -2-
J-S68011-14


      showed that [Appellant’s] blood alcohol concentration was .16
      percent.

            On June 5, 2013, following a jury trial, [Appellant] was
      found guilty of two counts of driving under the influence.
      Additionally, [the trial court] found him guilty of summary
      careless driving and disorderly conduct.         A presentence
      investigation was prepared, and on July 5, 2013, [the trial court]
      sentenced [Appellant] to an aggregate term of imprisonment of
      1 year and 45 days to 5 years and 45 days in a State
      Correctional Institution.

Trial Court Opinion, 2/26/13, at 1-3 (footnotes omitted).

       Appellant filed a motion for reconsideration on July 15, 2012, which

the trial court denied on August 1, 2013.    On August 30, 2013, Appellant

filed notice of appeal and the trial court directed him to comply with

Pa.R.A.P. 1925(b).    Appellant however failed to comply and the trial court

transmitted the record to this Court.     On January 10, 2014, this Court

remanded the case for Appellant to file a Pa.R.A.P. 1925(b) concise

statement within twenty-one days. Appellant complied on January 27, 2014,

and on February 26, 2014, the trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant presents one issue for our review:

      DID THE TRIAL COURT ERR WHEN IT DENIED [APPELLANT’S]
      MOTION IN LIMINE WHICH REQUESTED THE SUPPRESSION OF
      THE BLOOD TESTS BASED UPON [APPELLANT’S] CONTENTION
      THAT THE TUBES CONTAINING [APPELLANT’S] BLOOD SAMPLE
      WERE NOT SEALED WHEN DELIVERED TO THE TESTING
      AGENCY    AND     THEREFORE    WERE     SUBJECT   TO
      CONTAMINATION?

Appellant’s Brief at 9.


                                    -3-
J-S68011-14


      Preliminarily, we note that chain-of-custody is an evidentiary principle

that “refers to the manner in which evidence was maintained from the time

it was collected to its submission at trial.”   In re D.Y., 34 A.3d 177, 185

(Pa. Super. 2011) (citations omitted).      Therefore, where chain of custody

violations are alleged, suppression is not the appropriate remedy for such an

evidentiary challenge. Rather, as with the admission of any other evidence,

“[t]he admission of demonstrative evidence is a matter committed to the

discretion of the trial court”, and where there has been an improper chain of

custody, the trial court may make an evidentiary ruling that such evidence is

inadmissible.   Commonwealth v. Hudson, 414 A.2d 1381, 1387 (Pa.

1980). See Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa. Super.

2011) (“Admission of evidence is within the sound discretion of the trial

court, and this Court will find the trial court abused its discretion only where

it is revealed in the record that the court did not apply the law in reaching its

judgment or exercised manifestly unreasonable judgment or judgment that

is the result of partiality, prejudice, bias, or ill will. In addition, it is the

exclusive province of the finder of fact to determine the weight of relevant

evidence.”).

      The standard for establishing a chain of custody for admission of

physical evidence has been stated by our Courts as follows:

            The admission of demonstrative evidence is a matter
            committed to the discretion of the court ... Furthermore,
            there is no requirement that the Commonwealth establish
            the sanctity of its exhibits beyond a moral certainty ...

                                      -4-
J-S68011-14


           Every hypothetical possibility of tampering need not be
           eliminated; it is sufficient that the evidence, direct or
           circumstantial, establishes a reasonable inference that the
           identity and condition of the exhibit remained unimpaired
           until it was surrendered to the trial court ... Finally,
           physical evidence may be properly admitted despite gaps
           in testimony regarding its custody....

Commonwealth          v. Bartley, 576 A.2d 1082, 1085 (Pa. Super. 1990)

quoting Commonwealth v. Bruner, 564 A.2d 1277, 1285 (Pa. Super.

1989) and Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980).

     Here, Appellant argues that the vials containing his blood were

unsealed when they arrived for testing at Health Network Laboratories.

Appellant’s Brief at 11-12.     Appellant contends that Ms. Koenig, the

Commonwealth’s forensic toxicology expert, acknowledged that normal

protocol for the transportation and delivery of blood required the individual

vials to be sealed, marked with evidence tape, and then placed in a sealed

evidence bag.   Id.    Because the vials were not sealed and marked with

evidence tape when delivered to the laboratory, Appellant contends that the

vials may have been contaminated or tampered with (even though the

evidence bag that they arrived in was sealed) and that the blood samples

were therefore unreliable and should have been excluded. Id.

     “When determining whether blood alcohol test results were properly

admitted, we are primarily concerned with [1] the qualifications of the

person performing the blood test and the equipment used; [2] whether the

laboratory was licensed and approved by the Department of Health, and [3]


                                    -5-
J-S68011-14


the chain of custody.”       Commonwealth v. Sullivan, 581 A.2d 956, 959

(Pa. Super. 1990).

       Appellant does not contest the qualifications of the persons performing

the blood test, the equipment used, or whether the facility was approved by

the Department of Health.          Nor does Appellant dispute the testimony of

Officer Beidelman, who observed Appellant’s blood being drawn and placed

in a sealed package2, together with the testimony of Ms. Koenig, the

Commonwealth’s forensic toxicology expert, who attested to an unbroken

chain of custody, testifying that after Officer Beidelman personally observed

Appellant’s blood being drawn at the Lehigh Valley Booking Center, the blood

samples were transmitted to the Health Network Laboratory by a courier

who picked up the blood samples and transported them to the laboratory.

N.T., 6/4/13, at 62; N.T., 6/5/13, at 17-18.

       With regard to Appellant’s assertion that the blood vials were not

individually sealed, “[a]llegations of problems in the chain of custody go to

the weight of the evidence, and it is [the fact-finder’s] duty to balance these

allegations against the reasonable inference of an unaltered chain of

custody.”     Commonwealth v. Alarie, 547 A.2d 1252, 1255 (Pa. Super.

1988).      Moreover, “[t]here is no need for the Commonwealth to prove

____________________________________________


2
  See Commonwealth v. Mahaney, 540 A.2d 556, 560 (Pa. Super. 1988)
(“when the police observe the technician drawing the blood, the
Commonwealth is not compelled to call the technician”).



                                           -6-
J-S68011-14


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. Allen, 575 A.2d 131, 134 (Pa. Super. 1990) (citations

omitted).     Here, there is no evidence in the record to support Appellant’s

claim that the blood samples were tampered with or contaminated. The trial

court correctly stated that “any gaps in the chain of custody go towards the

weight of the evidence, not its admissibility.” Trial Court Opinion, 2/26/13,

at 4.     Clearly the jury in this case found credible the testimony of Officer

Beidelman and Ms. Koenig that the vials were in a sealed evidence bag

which had not been disturbed, and concluded that the failure to seal the

individual vials did not undermine the reliability of the results of the blood

alcohol test. We will not disturb such determinations on appeal.

        For the foregoing reasons, we affirm the judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




                                      -7-
