Com. v. Emigh, Jr., T.

J-S30036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIMOTHY A. EMIGH, JR.

Appellant No. 1041 MDA 2013

Appeal from the Judgment of Sentence May 9, 2013

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000954-2012

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES R. STAHL

Appellant No. 1611 MDA 2013

Appeal from the Judgment of Sentence April 16, 2013

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0000680-2011

BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED AUGUST 26, 2014

Appellants Timothy A. Emigh, Jr. and James R. Stahl (collectively

from their judgments of sentence. We reverse.

J-S30036-14

Appellants were convicted of violating 75 Pa.C.S. § 3802(a)(1) 1 and

(c).2

in actual physical control of the movement of a vehicle after imbibing a

sufficient amount of alcohol such that the alcohol concentration in the

individual's blood or breath is 0.16% or higher within two hours after the

individual has driven, operated or been in actual physical control of the

movement of the vehicle

Commonwealth must establish the defendant had a blood alcohol content of

0.16% or higher. Id. This Court has found that the blood alcohol content

See, e.g., Commonwealth

v. Wanner

Commonwealth v. Bartolacci, 598 A.2d 287, 288

whole blood, the fact finder must be informed of this and must be provided

____________________________________________

1

in actual physical control of the movement of a vehicle after imbibing a

sufficient amount of alcohol such that the individual is rendered incapable of

safely driving, operating or being in actual physical control of the movement

2

Although the cases have been consolidated on appeal, the facts resulting in

the convictions did not arise from the same circumstances and Appellants

were not co-defendants.

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Commonwealth tests any other blood aspect, including serum, 3 plasma,4 or

supernatant,5 the Commonwealth must present evidence of a conversion

ratio to establish the blood alcohol content. Commonwealth v.

Renninger, 682 A.2d 356, 362 (Pa.Super.1996) (finding, as with serum and

plasma, supernatant testing is invalid unless the Commonwealth provides

converting evidence to establish the alcohol content of whole blood).

I. Commonwealth v. Daughenbaugh

On October 1, 2012, the Honorable Bradley P. Lunsford of the Court of

Common Pleas of Centre County issued an opinion and order in seven

separate cases. Commonwealth v. Daughenbaugh, No. CP-14-CR-1311-

2010 (C.P. Centre, Oct. 1, 2012). The Commonwealth had filed a motion in

limine seeking to introduce evidence of the blood alcohol content test results

obtained for the seven defendants at Mount Nittany Medical Center in State

College, Pennsylvania. Mount Nittany performed the testing for the blood

____________________________________________

3

Serum is acquired after a whole blood sample is centrifuged, which

separates the [ ] blood cells and fibrin, the blood's clotting agent, from the

plasma- Commonwealth v. Karns,

50 A.3d 158, 161-62 (Pa.Super.2012) (quoting Commonwealth v.

Hutchins, 42 A.2d 302, 310 (Pa.Super.2012)).

4

Plasma defined

Commonwealth v. Wanner, 605 A.2d 805,

807-08 (Pa.Super.1992).

5

supernat

Renninger,

682 A.2d at 362 n. 4 (citation omitted).

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alcohol content on supernatant using the Dimension RXL Clinical Chemistry

Analyzer built by the Siemens Corporation.

In Daughenbaugh, the court heard testimony from experts and

concluded the results obtained using a Siemens Dimension on supernatant

are comparable to the results obtained using headspace gas

chromatography.6

a conversion factor was not needed and finding the Commonwealth could

meet the converting requirement of Renninger, 682 A.2d 356, and its

progeny by presenting evidence of a 1:1 conversion ratio.

II. Factual Background for Stahl and Emigh

A. James R. Stahl

On December 29, 2010, Stahl was stopped for suspicion of drunken

driving. On January 5, 2011, he was charged with violating 75 Pa.C.S. §

3802 (a)(1) and (c).

the Admission of Evidence (Lab Technician Testimony Concerning

reasoning of Daughenbaugh and order that a conversion factor of 1:1

____________________________________________

6

Gas chromatography gold

standard

Coombs, United States v. Blazier: So Exactly Who Needs An Invitation

to the Dance?, 2010-JUL Army Law. 15, 19 (Army Lawyer, July 2010).

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to the conversion ratio.7 On February 12, 2013, without a hearing,8 the

Commonwealth v. Stahl, No. CP-14-CR-680-2011 (C.P. Centre Feb. 12,

2013). The court stated:

The issue raised in this Motion is nearly identical to those

issues raised in several cases heard by the Honorable

Bradley P. Lunsford over a period of several months. The

Court hereby adopts the sound reason and conclusion of

the Honorable Bradley P. Lunsford in his October 1, 2012,

Opinion in [Daughenbaugh]. At the trial in the present

case, the Commonwealth shall be permitted to meet the

requirements of [Renninger] with evidence of a 1:1

conversion ratio for the alcohol concentration result from

the chemical test run on a

blood.

Prior to trial, the court stated:

My ruling is that we're not going to -- in Mr. Stahl's case

and every other case, we're not going to reinvent the

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7

Stahl filed the following motions: (1) Motion to Preclude Commonwealth

From Arguing That Conversion is Not Necessary Per the Doctrine of Stare

Decisis; (2) Motion to Dismiss Any Commonwealth Motion in Limine Should

They Ask This Court to Allow Them to Not Convert Supernatant Test Results

to a Whole Blood Equivalent Because It Asks For This Court to Commit an

Abuse of Discretion; (3) Motion For This Court to Apply Frye Law to Any

Claim the Commonwealth May Make to Either No-Conversion is Necessary or

to Any Conversion Factor They May Claim at Trial; and (4) Motion to

Preclude Any Hearing on a Motion in Limine That the Commonwealth May

File to Have This Court Decide Conversion Is Not Necessary.

8

court could

consider as evidence the notes of testimony from the Daughenbaugh

proceedings. Motion in Limine for the Admission of Evidence (Lab

dispute this.

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scientific record that was created in front of Lunsford, and

so I am adopting the scientific foundation of that and I'm

adopting those numbers. Once I do that, the question is

who is qualified to introduce it. If the two of you stipulate

that it's a one-to-one, then we don't have to worry about

it, same as if you stipulate that the BAC is .248 or

whatever it was. I forget. Then we don't even need a lab

tech. For the purpose of today I'm going to permit, and

you will put your objection on the record -- I'm going to

permit the lab technician to say that I'm trained in the use

of this machine. There is no conversion factor. The

conversion factor that we use is essentially one-to-one. I'm

going to permit that testimony to come in from that

person, and you will have your issue preserved, and I will

read this instruction.

N.T., 2/14/2013, at 8-9.

At trial, the lab technician testified that the conversation ratio was 1:1

and the 1:1 ratio was generally accepted in the scientific community. N.T.,

2/14/2013, at 24. Stahl attempted to cross-examine the lab technician

regarding how he conducted the test and the conversion factor. N.T.

2/14/2013, at 21, 30, 57. For example, Stahl questioned the technician as

follows:

it now. On this document it says testing performed on

whole-

A. It's performed on the supernatant of whole blood after

Q. Whole blood is defined medically and in the scientific

realm as blood to which none of the elements have been

removed, correct?

A. Correct.

Q. Briefly, to go over the process, your procedures are to

take half a milliliter/50 microliters, correct?

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A. Correct.

Q. Of trichioroacetic acid?

A. Correct.

Q. Mix it with a half a milliliter of the original whole blood

sample?

A. Correct.

Q. All right. And then you centrifuge it?

A. Correct.

Q. And then after centrifugation -- I'm going to show you

what is listed as Defense Exhibit 7. This is --

...

Q. After all that, is this what the test tube looks like after

treated with TCA and after you centrifuge the blood?

A. Yes.

Q. Okay. I showed you this earlier and you have seen it.

Now, this dark spot on the bottom -- sorry it's black-and-

white -- it is called the precipitate, right?

A. Correct.

Q. Looks like -- so right here, this is the precipitate. It's

like a red bullet at the bottom of the test tube?

A. Correct.

Q. And on the top, that's what you referred to a

supernatant?

A. Correct.

Q. Supernatant is nothing more than the generic term for

the liquid on top of the solids after centrifugation?

A. You're asking me that?

Q. Yes.

A. Yes.

Q. And it has to be clear to go into the machine.

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A. (No response)

Q. For the analysis of this supernatant?

A. Yes.

...

Q. Okay. Now, you were asked earlier about did you do

any conversion. You stated it's your opinion that it's the

same stuff. Whatever goes into this machine and you get a

result is equal to what a whole-blood sample result would

be. They're the same thing, in your opinion?

A. Correct.

MR. MCGRAW: Objection. That question is misleading,

Your Honor.

MR. MANCHESTER: How?

MR. MCGRAW: It was not cast in terms of an opinion. The

rule provides that an expert, a person with specialized

knowledge, may testify in the form of an opinion or

otherwise, and it was the "or otherwise" that I had him

testify to. I did not elicit an opinion from him. There's a

difference between the two.

MR. MANCHESTER: So he's not an expert now, is what the

Commonwealth is saying?

THE COURT: He's an expert witness, but he said it was in

response to a fact question and not an expert question.

MR. MANCHESTER: The fact -- I'm sorry. I didn't mean to

cut you off.

THE COURT: No. Go ahead.

BY MR. MANCHESTER:

Q. Factually, you consider the results from this machine to

be the same as from a machine that tests whole blood

without removing the solids, yes or no?

A. Yes.

Q. Okay. This one-to-one number that was mentioned by

the Commonwealth, that is just -- that makes no sense,

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because if something is the same, you don't need to

convert it, correct?

A. Correct.

Q. All right. If you have a watermelon and a watermelon,

you're not going to change one watermelon to another

watermelon, because it's already a watermelon?

A. Correct.

Q. So one-to-one doesn't really exist, because you don't

convert if something is the same, true?

A. True.

N.T. 2-14-2013, at 30-34, 57-59.

On February 14, 2013, a jury found Stahl guilty and, on April 16,

2013, the trial court sentenced him. Stahl filed post-sentence motions,

which the court denied. On September 4, 2013, Stahl filed a notice of

appeal and a concise statement of matters complained of on appeal. The

court issued a 1925(a) opinion.

B. Timothy R. Emigh, Jr.

On April 14, 2012, Emigh was stopped for suspicion of drunken

driving. On April 17, 2012, the Commonwealth charged Emigh with violating

75 Pa.C.S. § 3802(a)(1) and (c). On February 21, 2013, the Commonwealth

filed a Motion in Limine for the Admission of Evidence (Lab Technician

motions related to converting evidence.9 The Honorable Jonathan D. Grine

____________________________________________

9

Emigh filed the following motions: (1) Motion to Preclude Commonwealth

From Arguing That Conversion is Not Necessary Per the Doctrine of Stare

(Footnote Continued Next Page)

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held a hearing on February 25, 2013. Emigh agreed that the court could

consider the transcript from the Daughenbaugh hearing. N.T., 2/25/2014,

at 6. The trial court found:

[T]he issue raised in these Motions is nearly identical to

those issues raised in several cases heard by the

Honorable Bradley P. Lunsford over a period of several

months . . . . . Therefore, the Court hereby adopts the

sound reasoning and conclusions of the Honorable Bradley

P. Lunsford in his October 1, 2012 Opinion in

[Daughenbaugh].

At trial in the present case, the Commonwealth shall be

permitted to meet the requirements of [Renninger] with

evidence of a 1:1 conversion ratio for the alcohol

concentration result from the chemical test run on a

Order, 2/27/2013.

-examine the

ratio used and the methodology used to determine the ratio. The

Commonwealth, however, stated it was not presenting an expert as to the

_______________________

(Footnote Continued)

Decisis; (2) Motion to Dismiss Any Commonwealth Motion in Limine Should

They Ask This Court to Allow Them to Not Convert Supernatant Test Results

to a Whole Blood Equivalent Because It Asks For This Court To Commit An

Abuse of Discretion; (3) Motion to Preclude Any Testimony As to No

Conversion Is Necessary For Supernatant Tests or That Said Conversion Rate

Is 1:1; (4) Motion to Preclude Any Hearing on a Motion in Limine That the

Commonwealth May File To Have This Court Decide Conversion Is Not

Necessary; and (5) Motion For Court to Provide Defendant With a Written

Opinion That Includes Case Law Analysis of Any Decision This Court Makes

on the Instant Motion or Any Motion the Commonwealth Files Regarding

Conversion Not Being Necessary.

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conversion ratio, and repeatedly objected to defense questions that allegedly

sought expert opinion. See, e.g., id., at 72-73 (objecting because

technician was not a medical or scientific expert); 91-92 (objections to

questions regarding the conversion ratio and methodology used to obtain the

ratio). The court sustained the objections. Id. The following exchange

occurred during cross-examination of the lab technician:

Q. All right. You did not test whole blood in that machine?

A. We started with whole blood.

Q. You started with it. Okay. Would you agree with me

that the medical and scientific definition of whole blood is

blood to which none of the elements have been removed?

MS. GILLETTE-WALKER: Objection, Judge. She's not a

medical expert nor is she a scientific expert. He's asking

her for an opinion that's outside of the scope of her

testimony today.

THE COURT: Sustained.

BY MR. MANCHESTER:

Q. Now, blood comes out of your body. You have seen

blood that actually comes out of a person's body?

A. Yes.

Q. All right. It has blood cells in it, platelets? You have to

say yes.

A. Yes.

Q. Platelets?

A. Yes.

Q. Clotting factors?

A. Yes.

Q. A whole bunch of other solid material?

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A. Yes.

Q. All right. As a medical technologist, are you told or

trained on what the definition of whole blood is?

A. Yes.

Q. What is whole blood?

A. It's, it has the red cells still in it. It has all of the things

that you just mentioned in it. It also has plasma, serum in

it.

Q. Plasma and serum are the liquids portions of one's

blood?

A. Yes.

Q. Without the solids in it?

A. Correct.

Q. Plasma actually, just to be correct, has the fibrinogen

and the clotting factor?

A. Yes.

Q. The plasma and serum are really no different?

A. Correct.

Q. All right. So you did not test whole blood to determine

the whole content of my client's sample?

A. We

Q. Yes or no?

A. Yes.

Q. You did?

A. We started with the whole blood.

Q. But you took out the solids before it went into the

machine, right?

A. Yes.

Q. What went in the machine was not whole blood,

correct?

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A. Correct.

...

Q. All right. You have no scientific training on the issues of

conversion; do you not?

MS. GILLETTE-WALKER: Objection. It's irrelevant.

THE COURT: Sustained.

MR. MANCHESTER: Your Honor, I'm going towards the

foundation of her to say a conversion factor of one to one.

MS. GILLETTE-WALKER: And, Judge, you already ruled

that she's permitted to say that and she has.

THE COURT: Sustained.

BY MR. MANCHESTER:

Q. The number one conversion, you are just saying that --

you're just using a number to say that it doesn't require a

conversion, right? Apples and apples. You don't convert an

apple to an apple, do you?

A. No.

Q. The necessity of conversion is to take, in this case, is to

take less than whole blood sample results to bring it down

to whole blood and grams per deciliter equivalent; is it

not? That's the basis of the necessity for conversion?

A. Correct.

Q. Okay. What study did you get the one-to-one

conversion rate from?

MS. GILLETTE-WALKER: Objection.

THE COURT: Sustained.

BY MR. MANCHESTER:

Q. What was the methodology for you to determine --

MS. GILLETTE-WALKER: Objection.

THE COURT: Sustained.

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MR. MANCHESTER: -- a one-to-one conversion rate?

BY MR. MANCHESTER:

Q. Who told you to say one-to-one conversion rate?

MS. GILLETTE-WALKER: Objection.

THE COURT: Sustained. Mr. Manchester, that's the last

one, okay.

MR. MANCHESTER: I am just making a record, Your Honor.

THE COURT: Okay.

BY MR. MANCHESTER:

Q. So when you test the less than whole blood sample, you

don't do any type of conversion on it?

MS. GILLETTE-WALKER: Objection.

THE COURT: Sustained.

BY MR. MANCHESTER:

Q. The results you get from the machine, all you do is

multiply them by two?

A. Correct.

Q. Now, when we went over centrifugation; do you recall

that?

A. Yes.

Q. The precipitate is the solids at the bottom?

A. Correct.

Q. You do not test them for the alcohol content, do you?

A. No.

Q. You just test the clear liquid?

A. Correct.

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N.T., 2/28/2013, at 72-76, 91-93, 118. Further, it appears the court did not

permit Emigh to obtain an expert to rebut the 1:1 conversion ratio. N.T.,

2/25/2013, at 13 (noting the court denied a defense request for a

continuance to obtain an expert).

On February 28, 2013, a jury convicted Emigh of violating 75 §§

3802(a)(1) and (c). On May 9, 2013, the court sentenced him. Emigh filed

post-sentence motions, which the court denied on May 23, 2013. On June

4, 2013, Emigh filed an untitled document and, on June 11, 2013, he filed a

timely notice of appeal. The court issued a 1925(a) opinion.10

III. Question Presented

Appellants raise the following question on appeal:

The trial court erred as a matter of law in allowing a

the Commonwealth asked the trial court to rule that the

Commonwealth did not have to convert a less than whole

blood test result to a whole blood equivalent (in essence to

allow a 1:1 conversion factor) at trial in each and every

case in Centre County where the blood was tested using a

10% solution of TCA to precipitate out the solids and then

testing the resulting supernatant. In essence the

Commonwealth asked the court through a motion in limine

to create an irrebutable presumption in the instant cases

and all future cases that a conversion factor of 1:1 shall be

used and it is a conversion factor that is generally

accepted in the scientific community which takes a fact

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10

In its 1925(a) opinion, the trial court found Emigh failed to file a timely

notice of appeal. Opinion and Order, 6/5/2013. However, although the

original document filed on June 4, 2013 was unclear, Emigh filed a notice of

appeal on June 11, 2013, within the thirty-day time period for filing an

appeal.

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that the Commonwealth must prove to a fact finder

beyond a reasonable doubt out of the hands of the fact

finder and makes it an irrebutable presumption.

IV. Standard of Review

The admissibility of evidence is a matter solely within the discretion of

the trial court, and we will reverse an evidentiary ruling only when an abuse

of discretion has occurred. See Commonwealth v. Dillon, 925 A.2d 131,

abuse of discretion may not be found merely because

an appellate court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support so as to be clearly Id. (quoting Grady

v. Frito Lay, Inc., 839 A.2d 1038, 1046 (Pa.2003)).

V. Legal Analysis

In Renninger, this Court found supernatant testing invalid unless the

2d at 362. Conversion factors may vary by

case, but they must be generally accepted within the scientific community.

See Commonwealth v. Kohlie, 811 A.2d 1010, 1015 (Pa.Super.2002).

The conversion factor may be challenged by the defense through cross-

exami

rebuttal witness; however, only the jury makes the credibility determination

that controls the outcome of the case. See id., at 1016.

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In Commonwealth v. Haight, the Commonwealth presented expert

evidence that the blood alcohol content in the supernatant sample did not

significantly differ from the blood alcohol content in the whole blood sample.

50 A.3d 137, 142-43 (Pa.Super.2012). The defendant offered expert

Id. at 143. The defense expert opined that supernatant

results of .181% could be converted to a gas test on whole blood of .166%.

Id. For a second sample tested, the expert did not give a definitive

conversion. Id. The trial court, following a bench trial, accepted the

supernatant sampled. Id. The court concluded that, based on the

testimony of the defense expert, the blood alcohol content after conversion

to whole blood was sufficient to sustain a conviction under § 3802(b). Id.

In Commonwealth v. Karns, the Commonwealth presented the

testimony of the lab technician who prepared and analyzed the blood

sampled. 50 A.3d 158 (Pa.Super.2012). The technician testified that a

machine performed the conversion, she did not know how the machine

performed the conversion, and the calculation performed on the raw results

did not address conversion. Id. at 164-65. This court found the evidence

Id. at 165.

In Commonwealth v. Brugger, the trial court denied the

-trial hearing on the

admissibility of blood alcohol content test results. 88 A.3d 1026

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(Pa.Super.2014). When denying the motion for a hearing, the trial court

referenced an en banc opinion of the Lebanon County Court of Common

Pleas. Id. at 1030. That en banc

omnibus pre-trial motion in limine seeking a hearing and order concerning

the admissibility of supernatant blood alcohol content in driving under the

influence cases for eight separate defendants. Id. at 1030-31. The en banc

court denied the motion, reasoning the omnibus motion could run afoul of

rules for consolidation of criminal trial and noting logistical concerns. Id. at

1031. The court then addressed the case law relied on by the

Id. at 1032.

This Court found the trial court erred in denying the motion for a

hearing. Brugger, 88 A.3d at 1034-

en banc decision inappropriate, as the en banc decision rested on a

procedural issue. Id. at 1034. Further, the Court noted that, although the

law requires a reliable conversion factor to determine the blood alcohol

content of whole-

testimony remains less th Id. at 1035. The Court reasoned that,

if the Commonwealth is denied the opportunity to present evidence and to

obtain a ruling on the admissibility of the results, this Court and the

Supreme Court will not have an opportunity to determine what evidence is

sufficient. Id.

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Here, the trial court found the Commonwealth could meet its burden of

proof of a conversion from a supernatant test to a whole blood test through

the testimony of a lab technician that the conversion ratio was 1:1. At trial,

it did not require the Commonwealth to present expert testimony regarding

the 1:1 ratio.

It was not error for the trial court to hold a hearing11 on the motion in

limine to determine whether the Commonwealth could present evidence that

the conversion factor was 1:1. See Brugger, 88 A.3d at 1035. As the

court in Brugger

Id. The court,

however, erred when it allowed the Commonwealth to present evidence of a

1:1 conversion ratio to the jury without expert testimony and prevented

Appellants from presenting expert testimony at trial. The lack of expert

testimony prevented Appellants from meaningfully cross-examining the

witnesses regarding the conversion factor

blood alcohol content met the statutory limit was for the jury, after

consideration of all evidence, including converting evidence and any

challenges thereto. See Kohlie, 811 A.2d at 1016; see also Karns, 50

A.3d at 165 (testimony of lab technician insufficient to sustain conviction).

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11

Although it appears no hearing occurred in Stahl, the parties agreed the

court could rely on the notes of testimony from Daughenbaugh.

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that the Commonwealth was required to prove, i.e., the blood alcohol

content of whole blood was greater than 0.16%. This included a

determination of any applicable conversion factor from supernatant to whole

blood.

Judgments of sentence reversed. The cases are remanded to the trial

courts for proceedings consistent with this memorandum. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/26/2014

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