J-A29004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ELAINE T. ACQUAVIVA                        :   No. 1366 EDA 2018

                  Appeal from the Order Entered April 3, 2018
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0006800-2017


BEFORE:      OTT, J., DUBOW, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 25, 2019

       The Commonwealth appeals1 from the order entered April 3, 2018, in

the Bucks County Court of Common Pleas, granting appellee’s, Elaine T.

Acquaviva’s, pretrial motion to suppress blood test results after she gave

consent to a blood draw during the course of a driving under the influence

(“DUI”) investigation. On appeal, the Commonwealth complains the trial court

erred and/or abused its discretion in suppressing Acquaviva’s blood alcohol

results based solely on its failure to introduce evidence of the qualifications of

the person who drew Acquaviva’s blood because (1) such qualifications are


____________________________________________


   Former Justice specially assigned to the Superior Court.

1 The Commonwealth has properly certified in its notice of appeal that the
order substantially handicaps the prosecution pursuant to Pa.R.A.P. 311(d).
Notice of Appeal, 5/3/2018.
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not specifically required under Pennsylvania law and (2) are not the basis for

pre-trial suppression but rather, is an issue subject to an evidentiary ruling to

be made at trial. See Commonwealth’s Brief at 4. For the reasons below, we

reverse the order of the trial court, and remand for further proceedings.

      The trial court set forth the factual history as follows:

            While on routine patrol, Officer Kyle Heasley (OFC Heasley)
      of the Lower Southampton Township Police Department, was
      stopped at a red light at the intersection of Street Road and
      Philmont. OFC Heasley was behind [Acquaviva] in the far right
      lane on Street Road travelling eastbound. When the signal turned
      green, OFC Heasley observed [Acquaviva] continue through the
      intersection. OFC Heasley observed [Acquaviva] swerve out of
      the right lane and almost strike the vehicles travelling in the left
      lane. OFC Heasley turned on his lights and pulled [Acquaviva]
      over to the right shoulder of Street Road.

            OFC Heasley read [Acquaviva] the DL-26B form in
      compliance with § 1547(b) of the Vehicle Code Chemical Test
      Refusal. [Acquaviva] thereafter consented to a blood test. The
      DL-26B form was signed and dated by both [Acquaviva] and OFC
      Heasley. [Acquaviva] was then transported to Bensalem Police
      Department where her blood was drawn. OFC Heasley testified
      that a Bensalem Rescue Squad member drew the blood. However,
      neither OFC Heasley, nor any other witness, testified identifying
      the Bensalem Rescue Squad who actually drew the blood or
      whether the member was qualified to draw blood.

Trial Court Opinion, 6/26/2018, at 1-2 (footnote omitted).

      On December 21, 2017, Acquaviva filed a motion to suppress the blood

results, arguing, inter alia, her constitutional rights were violated because the

Commonwealth failed to qualify the Bensalem Rescue Squad member who

drew the blood pursuant to 75 Pa.C.S. § 1547(c). A suppression hearing was

held on January 30, 2018.        On April 3, 2018, the trial court granted


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Acquaviva’s motion to suppress blood test results, providing the following

relevant conclusions of law:

     25. The blood test results must be suppressed because the
     Commonwealth failed to show that the blood was drawn by a
     qualified technician.

     26. At [the suppression hearing], the Commonwealth did not put
     forth any evidence regarding the individual who drew the blood
     from [Acquaviva].

     27. Commonwealth v. Mahaney holds that § 1547(c) and its
     corresponding regulations “focus on the person performing the
     blood testing and the equipment used, not the technician drawing
     the blood.” Commonwealth v. Mahaney, 373 Pa. Super. 129,
     133, 540 A.2d 556, 559 (1988). This holding has been interpreted
     by Commonwealth v. Allen to show that although the technician
     who draws the blood does not need to meet the requirements of
     75 Pa.C.S.A. § 1547(c)(2), the Commonwealth still must establish
     that the technician who drew the blood is also qualified to take
     blood samples. Commonwealth v Allen, 394 Pa. Super. 127,
     132-33, 575 A.2d 131, 134 (1990). Further, the issue of the
     technician who drew the blood was not at issue in Mahaney
     because the parties in Mahaney stipulated to the technician’s
     qualifications to take blood samples.       Commonwealth v.
     Mahaney, 373 Pa. Super. 129, 136, 540 A.2d 556, 559-60
     (1988).

     28. Here, there is no qualification on the record of the technician
     who drew the blood from [Acquaviva] nor is there any evidence
     to support a finding that the technician was qualified.

     29. Without the qualification, the blood should be suppressed.




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Findings of Fact, 4/3/2018, at 6-7. The Commonwealth filed a motion for

reconsideration, which was denied on May 3, 2018. The Commonwealth

then filed this appeal on the same day.2

       Based on the nature of the Commonwealth’s claims, we will address its

second issue first. The Commonwealth argues the trial court erred and/or

abused its discretion in granting suppression of Acquaviva’s blood alcohol

results based on solely on the Commonwealth’s failure to introduce evidence

at the suppression hearing of the qualifications of the person who drew

Acquaviva’s blood because “any issue involving such qualifications is not the

basis for pre-trial suppression but, rather, is, at most, an issue subject to an

evidentiary ruling to be made at trial.” Commonwealth’s Brief at 22 (some

capitalization removed). The Commonwealth states:

       [Acquaviva] failed to raise any constitutional violation in his
       motion to suppress in connection to the claim at issue in this
       appeal. The only Fourth Amendment violation raised in h[er]
       motion in connection to the blood draw was specific to h[er]
       allegation of the possibility of two blood draws being conducted.
       This issue was readily disposed of during the suppression
       testimony: that only one blood draw was conducted by one
       paramedic.       [Acquaviva]’s claim challenging the lack of
       qualifications alone, the basis upon which the suppression court
       suppressed the blood alcohol results, is not a claim that implicates
       the Fourth Amendment. See Schmerber v. California, [384
       U.S. 757 (1966)] (it is the unreasonableness of “means and
       procedures employed” in taking a DUI suspect’s blood that
       implicate the Fourth Amendment’s standard of reasonableness).
____________________________________________


2  On May 7, 2018, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth filed a concise statement on May 25, 2018. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 26, 2018.

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      See also Ove v. Gwinn, [264 F.3d 817 (9th Cir. 2001)]
      (complaint that blood samples in DUI cases were taken by persons
      not qualified to take such samples, alone, did not constitute a
      Fourth Amendment violation).

            In addition, the title of the governing subsection relied on
      by [Acquaviva], Section 1547(c), implicates the admissibility of
      the evidence and not whether it was lawfully obtained.

                                          …

             [Acquaviva]’s later averments, speculating on whether the
      paramedic used the correct vein and/or whether there were
      attempts by the paramedic to avoid contamination, are all matters
      that go to the integrity of the blood sample tested. Thus, like a
      chain-of -custody challenge, these speculations go to the weight,
      not the admissibility of the evidence. See Alerie, supra. They
      certainly do not implicate any constitutional violation, nor has
      [Acquaviva] actually avered [sic] an actual constitutional
      violation, as stated previously.

            Accordingly, insofar as the qualification of the technician
      who drew [Acquaviva]’s blood implicates the admissibility at trial
      of the blood test results, the Commonwealth should be afforded
      the opportunity to proceed to trial at which such qualifications may
      be established. Requiring the Commonwealth to present such
      evidence in order to survive a suppression motion is wholly
      without legal authority or precedent.

Id. at 22-25 (reproduced record citations omitted; italics in original).

      In rejecting the Commonwealth’s argument, the trial court found the

following:

            The issue before the Court, the consequences of the
      Commonwealth’s failure to qualify the technician who drew the
      blood, is of first impression. However, [Acquaviva]’s argument
      that the blood draw may implicate [Acquaviva]’s constitutional
      rights has reasonable merit and needs consideration. As asserted
      by [Acquaviva], the failure of the Commonwealth to develop a
      record to show that the technician was qualified may, for example,
      constitute a violation of [her] right to freedom from unreasonable


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      search and seizure under Article I, Section 8 of the Pennsylvania
      Constitution.

           Presented with a possible violation of a constitutional right,
      without precedence as guidance, the Court felt it necessary to
      safeguard [Acquaviva]’s [c]onstitutional [r]ight.

            Being that this is a case of first impression without any
      express guidance, the Court did not “ignor[e] or misappl[y] the
      law.” Further, it was not manifestly unreasonable or biased, for
      the Court, while considering this novel issue, to preserve
      [Acquaviva]’s constitutional right rather than disregard it.

Trial Court Opinion, 6/26/2018, at 5-6.

      In addressing this issue, we are guided by the following: Pennsylvania

Rule of Criminal Procedure 581 provides: “The defendant’s attorney … may

make a motion to the court to suppress any evidence alleged to have been

obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581(A). Further,

Rule 581 states: “At the conclusion of the hearing, the judge shall enter on

the record a statement of findings of fact and conclusions of law as to whether

the evidence was obtained in violation of the defendant’s rights, or in violation

of these rules or any statute, and shall make an order granting or denying the

relief sought.”   Pa.R.Crim.P. 581(I).    The comments to Rule 581 further

reveal:

      The rule is designed to provide one single procedure for the
      suppression of evidence alleged to have been obtained in violation
      of the defendant’s rights. The first revision of this rule extended
      its coverage to violation of the fourth, fifth, and sixth amendments
      of the Constitution of the United States; such as those proscribed
      by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961); Escobedo
      v. Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964); Jackson v.
      Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964); Miranda v.
      Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966); United States v.

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      Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); and Gilbert v.
      California, 388 U.S. 263, 87 S.Ct.1951 (1967).               Later
      Pennsylvania cases such as Commonwealth v. Futch, 447 Pa.
      389, 290 A.2d 417 (1972), sanctioned the use of Rule 581 to test
      certain violations of Pennsylvania Rules of Criminal Procedure;
      however, Commonwealth v. Murphy, 459 Pa. 297, 328 A.2d
      842 (1974), questioned whether the rule in its earlier form
      permitted such a challenge. The rule was therefore further revised
      in 1977 to permit use of the suppression motion to test
      admissibility of evidence where the issue is the method by
      which the evidence was obtained. The rule merely provides a
      vehicle by which the court may determine the issues involved and
      sets the time at which the application is to be made. The rule and
      the 1977 revision do not purport to define or expand the basis on
      which suppression may be had. . . . In addition, the order of the
      judge determining admissibility is to be final and binding at trial,
      absent newly discovered and hitherto undiscoverable evidence.

Pa. R. Crim. P. 581, Comment (emphasis added).

      Moreover, it merits mention the “Fourth Amendment to the [United

States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution

protect citizens from unreasonable searches and seizures.” Commonwealth

v. Evans, 153 A.3d 323, 327 (Pa. Super. Ct. 2016), quoting Commonwealth

v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal denied, 65 A.3d 413

(Pa. 2013). “The administration of a blood test, performed by an agent of, or

at the direction of the government, constitutes a search under both the United

States and Pennsylvania Constitutions.” Evans, 153 A.3d at 327-328, quoting

Commonwealth v. Kohl, 615 A.2d 308, 315 (Pa. 1992).

      In Missouri v. McNeely, 569 U.S. 141 (2013), “a plurality of the United

States Supreme Court explained that, because a blood draw unquestionably

is a search within the meaning of the Fourth Amendment, a warrant generally


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is required, unless one of the exceptions to the warrant requirement applies.”

Commonwealth v. Myers, 164 A.3d 1162, 1166 (Pa. 2017). In Birchfield

v. North Dakota, __ U.S. __, 136 S.Ct. 2160 (U.S. 2016),

       the Supreme Court addressed the constitutionality of warrantless
       searches of breath and blood under the Fourth Amendment,
       specifically with regard to the search-incident-to-arrest and
       consent exceptions to the warrant requirement.             The Court
       concluded that “the Fourth Amendment permits warrantless
       breath tests incident to arrests for drunk driving[,]” but “reach[ed]
       a different conclusion with respect to blood tests.” Id. at 2184.
       Because obtaining a blood sample is significantly more intrusive
       than a breath test, the Court determined that a blood test may
       not be administered as a search incident to arrest. Id. at 2185.

Myers, 164 A.3d at 1168.

       As such, in accordance with Rule 581 and case law, Acquaviva was

within her constitutional right and was permitted to use the suppression

motion to test the admissibility of the blood draw evidence where the issue

was the method by which the evidence was obtained – that the blood draw

was a search with constitutional protections, and the individual who drew her

blood acted improperly and was not qualified. Pa.R.Crim.P.581, Comment.3

Indeed, in her motion to suppress, Acquaviva argued:



____________________________________________


3  We liken this case to situations where defendants file motions to suppress,
arguing that officers failed to adhere to the knock and announce rule in
residential search and seizure cases – the method used by the officers was
improper and served as the basis of the defendant’s motion to suppress. See
i.e., Commonwealth v. Kane, 940 A.2d 483, 485 (Pa. Super. 2007)
(Commonwealth appeal from order which suppressed evidence where court
found knock and announce rule was violated), appeal denied, 951 A.2d 1161
(Pa. 2008).

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      While there is no legal requirement in Pennsylvania that a blood
      draw for the purpose of chemical testing of blood alcohol be
      conducted by a licensed doctor or nurse, there is no evidence that
      the individual taking the blood was qualified to do so and used
      approved equipment. In fact, the Affidavit of Probable Cause
      reflects that paramedics (i.e. plural) conducted a blood draw
      without any information as to why more than one individual drew
      blood. If more than one blood draw occurred it would be a Fourth
      Amendment violation. See McFarren vs. Commonwealth of
      Pennsylvania, DOT, 525 A.2d 1185 Pa. 1987). Also see Article
      I, Section 8 of the Pennsylvania Constitution.

Motion of Defendant, Elaine T. Acquaviva, for Suppression of Evidence,

12/21/2017, at ¶ 7.

      In Commonwealth v. Culp, 548 A.2d 578 (Pa. Super. 1988), the

Commonwealth appealed “an order by which the lower court granted [the

defendant]’s motion to suppress a hospital record containing the results of his

blood alcohol test taken immediately following his arrest for driving under the

influence of alcohol.” Id. at 579. In his motion to suppress, the defendant

“challenged the manner in which the test result was obtained and specifically

alleged that the result was obtained in violation of his rights under the statutes

and laws authorizing such tests and under the constitutions of the United

States and the Commonwealth of Pennsylvania.”          Id.   The Commonwealth

argued:

      the question of the accuracy of the blood test result and its
      admissibility under the Business Records Act were not properly
      before the suppression court and were issues to be decided at
      trial. This claim is based on its contention that only claims of
      constitutional violation in the gathering of evidence are the proper
      subject of a suppression proceeding.




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Id. at 580-581.   In applying the prior suppression rule, Pa.R.Crim.P. 323,

which is substantially similar to Rule 581 in relevant parts, a panel of this

Court held:

      This extension of the use of Rule 323 is logically consistent with
      constitutional claims as a due process claim may be proven by a
      showing that the state has failed to follow the rules of procedure
      or other statutory requirements. Commonwealth v. Povish,
      479 Pa. 179, 387 A.2d 1282 (1978); Commonwealth v.
      Simmons, 295 Pa. Super. 72, 440 A.2d 1228 (1982). Therefore,
      we find no error on the part of the lower court in
      entertaining appellee’s challenge to the method used by
      the Commonwealth in gathering the blood results in this
      case.

Culp, 548 A.2d at 581 (emphasis added).        In Culp, the facts were more

attenuated than in the present case because the challenge concerned the

admissibility of hospital records concerning the blood test whereas here, the

contention involves the actual blood draw. Accordingly, the trial court did not

err in entertaining Acquaviva’s suppression motion, challenging the method

used by the Commonwealth to gather her blood.

      Nevertheless, while it was proper for Acquaviva to raise the argument

in a motion to suppress, the success of her contention turns on the basis of

her suppression claim and the Commonwealth’s remaining assertion on

appeal. The Commonwealth contends the trial court erred and/or abused its

discretion in suppressing Acquaviva’s blood alcohol results based on a finding

that the Commonwealth failed to introduce evidence of the qualifications of

the person who drew Acquaviva’s blood because such qualifications are not

specifically required under Pennsylvania law to admit the results of a blood

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test. See Commonwealth’s Brief at 12. The Commonwealth notes that in

Acquaviva’s motion to suppress, she only sought suppression of the blood

alcohol results in connection with whether the paramedic that drew her blood

was a “qualified person” who used “approved equipment” pursuant to Section

1547(c). Relying on Commonwealth v. Allen, 575 A.2d 131 (Pa. Super.

1990), appeal denied, 594 A.2d 311 (Pa. 1990), the Commonwealth contends

the requirements set forth in Section 1547(c) do not apply to the qualifications

of the person who draws the blood sample in DUI cases, but rather only to the

individual who conducts the actual chemical testing of the blood.           See

Commonwealth’s Brief at 14. It states:

      Despite this, the suppression court found that the Commonwealth
      was otherwise required to introduce and establish at the
      suppression hearing the qualifications of the paramedic who drew
      [Acquaviva]’s blood. The suppression court relied solely on this
      Honorable Court’s isolated statement in Allen that, “[i]f a driver
      is taken to a hospital for a blood sample in a DUI case, the
      Commonwealth must show that the blood sample was withdrawn
      by a hospital employee who was qualified to take blood samples.”
      Allen, at 133. The suppression court’s reliance on same is
      misplaced.

Commonwealth’s Brief at 15-16 (some citations and emphasis removed).

Moreover, the Commonwealth alleges:

            First, this Court confirmed in Allen that the qualifications
      for a person conducting a blood draw need not be met by §
      1547(c), thus defeating [Acquaviva]’s actual suppression claim,
      as stated above.

            Second, this Court in Allen, respectfully, cited no actual
      statutory provision or other authority for the conclusion that “the
      Commonwealth must show that the blood sample was withdrawn
      by a hospital employee who was qualified to take blood samples,”

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     other than a possible reference to requirements for hospitals
     under the Clinical Laboratory Act.        Further, there is no
     Pennsylvania statute found by the Commonwealth, or identified
     by [Acquaviva] or the suppression court, which sets forth or
     requires a certain minimum qualification for each person who
     withdraws blood for DUI cases, or that requires the showing of
     such qualifications before the evidence may be admitted.

        Third, the Commonwealth ha[s] found no appellate case citing
     Allen for this specific proposition, or otherwise requiring the
     Commonwealth to prove the qualifications of the person drawing
     blood. To the contrary, this Court stated in Commonwealth v.
     Sullivan, 581 A.2d 956 (Pa. Super. 1990), decided after Allen,
     that:

        When determining whether blood alcohol test results were
        properly admitted, we are primarily concerned with the
        qualifications of the person performing the blood test and
        the equipment used []; whether the laboratory was licensed
        and approved by the Department of Health, [75 Pa.C.S.
        §1547(c)(2)]; and the chain of custody[.]

     Id. at 959. This Court further stated that “blood alcohol test
     results were properly admitted into evidence without the presence
     of the technician who performed the test.” Id. at 958 (internal
     citation omitted). “It is because a blood alcohol test is basic and
     routine and, therefore, highly reliable, that the safeguards
     ordinarily afforded by confrontation and cross-examination are not
     required.” Id. See Mahaney, at 560 (“when the police observe
     the technician drawing the blood, the Commonwealth is not
     compelled to call the technician”).

                                     …

           [Acquaviva] specifically did not challenge the qualifications
     of the laboratory or person who performed the testing.

           Further, [Acquaviva] belatedly attempted to challenge
     during suppression the chain of custody, at the prompting of the
     suppression court. However, chain of custody matters are clearly
     not subject to suppression, but are trial matters that got to the
     weight, not the admissibility, of the evidence. Commonwealth
     v. Alarie, 547 A.2d 1252, 1255 (Pa. Super.1988).


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            Fourth, this Court in Allen did not state, nor has any case
     since Allen hold, that the Commonwealth’s failure to establish the
     qualifications of the person who drew the blood for DUI testing
     was a matter subject to suppression pre-trial, or otherwise would
     preclude the admissibility of blood alcohol results.

          Finally, there is no Fourth Amendment violation implicated
     based solely on the qualifications, or lack thereof, of a person who
     draws blood from a DUI suspect.

Commonwealth’s Brief at 17-19 (reproduced record citations omitted).

     Our standard of review regarding suppression issues is well-settled:

           When the Commonwealth appeals from a suppression
        order, we follow a clearly defined standard of review and
        consider only the evidence from the defendant’s witnesses
        together with the evidence of the prosecution that, when
        read in the context of the entire record, remains
        uncontradicted. The suppression court’s findings of fact
        bind an appellate court if the record supports those findings.
        The suppression court’s conclusions of law, however, are not
        binding on an appellate court, whose duty is to determine if
        the suppression court properly applied the law to the facts.
        Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d
        1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our
        standard of review is restricted to establishing whether the
        record supports the suppression court’s factual findings;
        however, we maintain de novo review over the suppression
        court’s legal conclusions.” Commonwealth v. Brown, 606
        Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

     Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super.
     2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is
     within the suppression court’s sole province as factfinder to pass
     on the credibility of witnesses and the weight to be given to their
     testimony. The suppression court is free to believe all, some or
     none of the evidence presented at the suppression hearing.”
     Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
     2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d
     58 (2004). Nevertheless, the suppression court’s conclusions of
     law are not binding on an appellate court, and are subject to
     plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567
     (Pa. Super. 2009) (citations omitted).


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Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018).

     Section 1547 provides, in relevant part:

     (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.

                                      …

     (2)

        (i) Chemical tests of blood, if conducted by a facility located
        in this Commonwealth, 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 or by a
        Pennsylvania State Police criminal laboratory. For purposes
        of blood 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. § 1547(c).

     Here, the trial court found the following:

            This Court does not dispute that 75 Pa.C.S.A. § 1547(c)
     “...focus[es] on the person performing the blood testing and the
     equipment used, not the technician drawing the blood.”3
     _____________________

        3Commonwealth v. Mahaney, 373 Pa. Super. 129, 133,
       540 A.2d 556, 559 (1988).
     _____________________

         However, the holding in Mahaney has been clarified by
     Commonwealth v. Allen which states that although the

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     technician who draws the blood does not need to meet the
     requirements of 75 Pa.C.S.A. § 1547(c)(2), the Commonwealth
     still must establish that the technician who drew the blood is also
     qualified to take blood samples.4 Further, the qualification of the
     technician who drew the blood was not at issue in Mahaney
     because the parties in Mahaney stipulated that the technician
     who drew the blood “was qualified for his position by the
     hospital...”5
     _____________________

        4 Commonwealth v. Allen, 394 Pa. Super. 127, 132-33,
        575 A.2d 131, 134 (1990).

        5Commonwealth v. Mahaney, 373 Pa. Super. 129, 136,
       540 A.2d 556, 559-60 (1988).
     _____________________

            These cases do not provide an explanation for the
     requirement that the technician who drew the blood be properly
     qualified because the parties in these cases properly qualified the
     technician. Therefore, the technician who drew the blood must be
     qualified.

           The facts here are distinguishable from Mahaney. Here,
     there is no qualification on the record of the technician who drew
     the blood from [Acquaviva] nor is there any evidence to support
     a finding that the technician was qualified.             Thus, the
     Commonwealth failed to meet its obligation to develop a record
     qualifying the technician who drew the blood.

Trial Court Opinion, 6/26/2018, at 3-4.

     We disagree with the trial court for several reasons. First, we reiterate

as both parties and the trial court acknowledge, Section 1547(c)(2) is focused

solely on the chemical tests of the blood and speaks nothing to the actual

drawing of the blood or the qualifications of the person who draws the blood.

Accordingly, because Acquaviva based her suppression argument regarding




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the blood draw on Section 1547(c)(2), her claim cannot succeed as the statute

does not provide qualifications for that type of issue.

      Second, the trial court relies on Allen, supra, for the principle that

“although the technician who draws the blood does not need to meet the

requirements of 75 Pa.C.S.A. § 1547(c)(2), the Commonwealth still must

establish that the technician who drew the blood is also qualified to take blood

samples.”   Trial Court Opinion, 6/26/2018, at 4.         A closer review of the

language in Allen reveals that while the technician who draws the blood may

have to be qualified, the panel does not specify what type of qualification is

required. Rather, the panel states:

      In the past, this court has held that § 1547(c) and its
      corresponding regulations “focus on the person performing the
      blood testing and the equipment used, not the technician drawing
      the blood.” Commonwealth v. Mahaney, 373 Pa.Super. 129,
      136, 540 A.2d 556, 559 (1988). If a driver is taken to a hospital
      for a blood sample in a DUI case, the Commonwealth must show
      that the blood sample was withdrawn by a hospital employee who
      was qualified to take blood samples. That employee does not
      have to meet the requirements of 75 Pa.C.S.A. §
      1547(c)(2).

Allen, 575 A.2d at 134 (emphasis added).

      Therefore, without any statutory guidance or precedence regarding

what qualifications are necessary for the individual who draws a defendant’s

blood in a DUI investigation, the Commonwealth cannot be penalized for




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failing to meet an undefined burden in a suppression procedure.4 Further, it

strains the common sense application concerning the realities of drawing blood

that a Bensalem Rescue Squad member, who drew Acquaviva’s blood, was

not qualified to do so. Indeed, Acquaviva does not allege that the purported

unqualified blood draw led to incorrect results of the blood testing. See Motion

of Defendant, Elaine T. Acquaviva, for Suppression of Evidence, 12/21/2017,

at ¶ 7. Accordingly, because we conclude the trial court erred in granting

Acquaviva’s motion to suppress, we reverse the order on appeal and remand

for further proceedings.

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/19




____________________________________________


4   Moreover, it merits mention the allegations set forth in Acquaviva’s
suppression motion did not put the Commonwealth on notice that they needed
to present testimony from that specific witness.

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