Com. v. Persico, J.

J-A10028-25

                                   

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH L. PERSICO                          :
                                               :
                       Appellant               :   No. 2025 EDA 2024

       Appeal from the Judgment of Sentence Entered February 27, 2024
      In the Court of Common Pleas of Carbon County Criminal Division at
                        No(s): CP-13-CR-0000121-2020


BEFORE:      PANELLA, P.J.E., BECK, J., and FORD ELLIOTT, P.J.E. *

OPINION BY BECK, J.:                                      FILED JULY 29, 2025

       Joseph L. Persico (“Persico”) appeals from the judgment of sentence

entered by the Carbon County Court of Common Pleas (“trial court”) after a

jury convicted him of homicide by vehicle while driving under the influence

(“DUI”), homicide by vehicle, DUI – general impairment, DUI – highest rate

of alcohol, driving the wrong way, reckless driving, involuntary manslaughter,

simple assault, and recklessly endangering another person. 1           Persico

challenges the denial of his motion to suppress the results of a hospital blood

draw that occurred following a motor vehicle accident. He argues that the

Commonwealth failed to establish that hospital personnel conducted the blood

draw for independent medical purposes. Because we agree with Persico that

____________________________________________


* Retired Senior Judge assigned to the Superior Court.


1 75 Pa.C.S. §§ 3735(a), 3732(a), 3802(a)(1), 3802(c), 3308(b), 3714(b),
3736(a); 18 Pa.C.S. §§ 2504(a), 2701(a)(1), 2705.
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his blood draw was illegal, we vacate his judgment of sentence and remand

this matter to the trial court.

                        Facts and Procedural History

      We summarize the evidence presented at the suppression hearing as

follows. On the night of November 6, 2018, at approximately 11:54 p.m.,

Trooper John P. Blaski of the Pennsylvania State Police (“PSP”) received a call

reporting a three-vehicle crash in the northbound lanes of Interstate 476 (“the

Northeast Extension”) near Parryville Borough, Carbon County.        At 12:13

a.m., Trooper Blaski arrived at the scene where he observed a white Audi A4

(“Audi”) facing the wrong direction (southbound) against the median barrier.

Through his investigation of the accident, Trooper Blaski ascertained that the

driver of the Audi had been driving southbound in the northbound lanes of the

Northeast Extension when it struck, head-on, a green Honda Civic that was

driven by Paul Gerrity (“Gerrity”). The impact caused Gerrity’s vehicle to spin

into a blue Toyota Corolla, which was operated by Pan Tso (“Tso”). Carbon

County Deputy Coroner Robert Miller pronounced Gerrity dead at the scene;

Tso received medical treatment for his injuries, but ultimately survived.

      By the time Trooper Blaski had arrived at the scene, paramedics had

already transported the driver of the Audi to Lehigh Valley Hospital – Cedar

Crest (“LVHCC”).     After running the license plate of the Audi through his

computer and communicating with paramedics, Trooper Blaski was able to




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verify that Persico had been the driver of that vehicle.      Trooper Blaski

remained at the scene until his shift ended at approximately 5:00 a.m.

      Persico arrived at LVHCC at 12:32 a.m. Shortly after Persico’s arrival,

hospital personnel ordered several blood and urine tests, which included blood

and urine tests for ethanol.      Raymond Garcia (“Garcia”) of the LVHCC

laboratory drew Persico’s blood at 1:01 a.m. Chain of custody documentation

for Persico’s blood draw indicated that the blood sample for his ethanol level

was placed in grey-top vial and sent to the LVHCC toxicology laboratory at

1:28 a.m., where it was sealed and locked, remaining untested.            The

toxicology laboratory then sent this blood sample to secure storage at Health

Network Laboratory (“HNL”) at 4:10 a.m., where it was placed in long-term

storage, again untested. In fact, at no point on the night of the accident did

either LVHCC or HNL analyze Persico’s blood to determine his blood alcohol

content (“BAC”).

      As Trooper Blaski remained at the scene of the accident for the entire

night, he never went to the hospital to speak with Persico or any medical

personnel, and did not request a blood draw. Two other troopers went to the

hospital, but those troopers were unable to speak with Persico as he

underwent medical treatment. According to Trooper Blaski’s testimony, to the

best of his knowledge, neither of those two troopers requested that hospital

personnel draw Persico’s blood.




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      In the days following the crash, Trooper Blaski interviewed paramedics

Jared Yeastedt (“Yeastedt”), Casey Rich (“Rich”), and Matthew Derkosh

(“Derkosh”), each of whom treated Persico on the night of the crash. Yeastedt

told Trooper Blaski that Persico was incoherent, dazed, and confused. Rich

and Derkosh told Trooper Blaski that Persico could not remember anything

about the crash or anything else that happened that night. Rich also informed

Trooper Blaski that he smelled a faint odor of alcohol on Persico.         Both

Yeastedt and Derkosh, however, told Trooper Blaski that they did not smell

alcohol on Persico.

      On November 29, 2018, Corporal Matthew Hunter of the PSP was

conducting a search pursuant to a warrant of Persico’s Audi when he

discovered a half-full 375-milliliter bottle of vodka in the passenger

compartment. Consequently, on December 12, 2018, Trooper Blaski obtained

two search warrants—one for HNL to analyze Persico’s secured blood sample,

and another to obtain Persico’s medical records from LVHCC. On December

14, 2018, over a month after the accident, HNL analyzed Persico’s blood

sample and determined that his BAC was .22 at 1:01 a.m. on the night of

crash.

      On January 13, 2020, the Commonwealth filed a criminal information,

in which it charged Persico with the aforementioned crimes. On October 29,

2020, Persico filed a pretrial motion to suppress the results of his blood draw.

Persico alleged that his blood draw violated section 3755 of the Pennsylvania


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Vehicle Code, 75 Pa.C.S. § 3755, and his rights under the Fourth Amendment

to the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution.   See Suppression Motion, 10/29/2020, ¶¶ 13-16; Brief in

Support of Suppression Motion, 4/19/2021, at 12 (unpaginated). On March

2, 2021, the suppression court held a hearing on Persico’s motion during which

Trooper Blaski testified as the sole witness. At the conclusion of the hearing,

the suppression court allowed the parties time to submit briefs in support of

their respective arguments.

      Ultimately, on June 29, 2021, the suppression court denied Persico’s

motion. The court concluded that because the hospital, as a private actor,

drew Persico’s blood on its own initiative and not at the request of police or

any other government official, the blood draw did not implicate the Fourth

Amendment to the United States Constitution or Article I, Section 8 of the

Pennsylvania Constitution. Suppression Court Order, 6/29/2021, at 10. The

suppression court further found that Persico’s blood draw did not implicate

section 3755 because there was no evidence to suggest that the hospital drew

the blood for any reason other than independent medical purposes. Id.

      A jury convicted Persico on October 18, 2023. On February 27, 2024,

the trial court sentenced Persico to an aggregate term of three to six years in

prison.   Persico filed timely post-sentence motions that the trial court

subsequently denied. Persico then timely appealed to this Court. He presents

the following issue for review:


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      1. Did the trial court err in failing to suppress the blood sample
      taken from [Persico] and all medical records containing the results
      of chemical blood testing of the blood sample, which constituted
      fruit of the poisonous tree, where the search and seizure of
      [Persico]’s blood sample was performed without a search warrant,
      probable cause, or the consent of [Persico] in violation of the
      United States and Pennsylvania Constitutions?

            a. Did the trial court err in failing to suppress an illegally
            obtained blood sample and chemical blood test results,
            contained in the records and report generated by [HNL],
            where the Commonwealth failed to sustain its burden of
            proof at the suppression hearing by failing to establish that
            the blood draw was solely for medical purposes or in
            compliance with 75 Pa.C.S. [§] 3755?

Persico’s Brief at 3.

            Our 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, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. 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 our plenary review.

            Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre[]trial motion to suppress.

Commonwealth v. Carey, 

 (Pa. Super. 2021) (citation

omitted).

                           Persico’s Arguments


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      Persico argues that his blood draw violated his rights under both the

Fourth Amendment to the United States Constitution and Article I, Section 8

of the Pennsylvania Constitution, and the trial court therefore erred in denying

his motion to suppress the results of the blood draw. See Persico’s Brief at

14-35. Specifically, he contends that there was no evidence to support the

trial court’s conclusion that hospital personnel drew his blood for independent

medical purposes.        Id. at 30-34.   Rather, Persico maintains that all the

evidence the Commonwealth presented demonstrates that hospital personnel

conducted the blood draw for criminal prosecution purposes. Id. at 32. Thus,

he asserts that hospital personnel conducted the blood draw pursuant to

section 3755, but the Commonwealth failed to establish there was probable

cause to believe that he had operated a vehicle under the influence of alcohol

or a controlled substance such that a blood draw under section 3755 was

permissible. Id. at 32-33. Finally, Persico argues that the search warrants

Trooper Blaski later executed to obtain and test his blood sample did not cure

the fact that the blood draw itself was illegal. Id. at 34-35.

               Section 3755 and Constitutional Protections

      The Fourth Amendment to the United States Constitution and Article I,

Section   8   of   the   Pennsylvania    Constitution   protect   individuals   from




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unreasonable searches and seizures. 2 Int. of T.W., 

, 416 (Pa.

2021).    “It has long been established that a blood draw for purposes of

determining BAC constitutes a search under the Fourth Amendment.”

Commonwealth v. Bell, 

 (Pa. 2019). It is also well settled

that “[a] search or seizure conducted without a warrant is presumptively

unreasonable … subject to a few specifically established, well-delineated

exceptions.” Commonwealth v. Jones-Williams, 

, 515 (Pa.

2022) (quotation marks and citation omitted).




____________________________________________


2   The Fourth Amendment provides:

       The right of the people to be secure in their persons, houses,
       paper, and effects, against unreasonable searches and seizures,
       shall not be violated, and no Warrants shall issue, but upon
       probable cause, supported by Oath or affirmation, and
       particularity describing the place to be searched, and the persons
       or things to be seized.

U.S. CONST. amend. IV. Article I, Section 8 of the Pennsylvania Constitution

states:

       The people shall be secure in their persons, houses, papers and
       possessions from unreasonable searches and seizure, and no
       warrant to search any place or to seize any person or things shall
       issue without describing them as nearly as may be, nor without
       probable cause, supported by oath or affirmation subscribed to by
       the affiant.

PA. CONST. art. I, § 8.


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       Previously, one such exception to the warrant requirement as it pertains

to blood draws was section 3755 of the Vehicle Code, 3 which provided:

       If, as a result of a motor vehicle accident, the person who drove,
       operated or was in actual physical control of the movement of any
       involved motor vehicle requires medical treatment in an
       emergency room of a hospital and if probable cause exists to
       believe a violation of section 3802 (relating to driving under
       influence of alcohol or controlled substance) was involved, the
       emergency room physician or his designee shall promptly take
       blood samples from those persons and transmit them within 24
       hours for testing to the Department of Health or a clinical
       laboratory licensed and approved by the Department of Health
       and specifically designated for this purpose. This section shall be
       applicable to all injured occupants who were capable of motor
       vehicle operation if the operator or person in actual physical
       control of the movement of the motor vehicle cannot be
       determined. Test results shall be released upon request of the
       person tested, his attorney, his physician or governmental officials
       or agencies.

75 Pa.C.S. § 3755(a).        Section 3755 was part of Pennsylvania’s statutory

“implied consent” system that, which, together with section 1547 of the

Vehicle Code4 “comprise a statutory scheme which both implies the consent

____________________________________________


3 As discussed in greater detail infra, our Supreme Court held during the
pendency of this appeal that section 3755 is unconstitutional.       See
Commonwealth v. Hunte, ___ A.3d ___, 

 (Pa. 2025).

4   Section 1547, the implied consent provision, states:

       (a) General rule.--Any person who drives, operates or is in
       actual physical control of the movement of a vehicle in this
       Commonwealth shall be deemed to have given consent to one or
       more chemical tests of breath or blood for the purpose of
       determining the alcoholic content of blood or the presence of a
       controlled substance if a police officer has reasonable grounds to
       believe the person to have been driving, operating or in actual
(Footnote Continued Next Page)


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of a driver to undergo blood testing in certain circumstances and requires

hospital personnel to release the blood test results at the request of, among

others, a police officer.” Commonwealth v. Shaw, 

 (Pa.

2001).

       Our Supreme Court has explained that section 3755(a) required

“hospital personnel, in cases where probable cause exists to believe that an

emergency room patient has violated Pennsylvania’s DUI statute, to take

blood samples for BAC testing.” 

 There was no requirement in the statute,

however, “that the BAC testing be conducted at the request of a police officer.”

 The only condition for a legal blood draw under section 3755 was “the

abstract requirement that probable cause exists to believe” there was a

violation of the DUI statute. 

 Where such probable cause existed, section

3755 required hospital personnel to take blood samples for BAC testing. 

____________________________________________


       physical control of the movement of a vehicle in violation of
       section 1543(b)(1.1) (relating to driving while operating privilege
       is suspended or revoked), 3802 (relating to driving under
       influence of alcohol or controlled substance) or 3808(a)(2)
       (relating to illegally operating a motor vehicle not equipped with
       ignition interlock).

       (b) Civil penalties for refusal.--

          (1) If any person placed under arrest for a violation of section
          3802 is requested to submit to chemical testing and refuses to
          do so, the testing shall not be conducted but upon notice by
          the police officer, the department shall suspend the operating
          privilege of the person[.]

75 Pa.C.S. § 1547(a), (b)(1).

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The Supreme Court also noted that section 3755 was “inartfully drafted”

because it “required a probable cause determination without specifying who

is to make such determination, or how such an abstract requirement is to be

met.” Id. n.3. The Court suggested that either police or “hospital personnel

familiar with [s]ection 3755(a)” could make the probable cause determination.

Id.

      In Shaw, “it was undisputed that [the appellant]’s BAC test was

conducted for independent medical purposes[,]” as “[t]here was no request

by [police] that a BAC test be performed, nor did hospital personnel perform

the BAC test as a result of any perceived duty arising out of the abstract

probable cause requirement in [s]ection 3755.” Id. at 298-99. Our Supreme

Court held that, where hospital personnel conduct a BAC test for independent

medical purposes, i.e., not at the request of law enforcement, the blood test

did not occur pursuant to section 3755.      Id. at 299.   As such, the Court

explained, police are not statutorily authorized to obtain the results of the

blood test without a warrant and thus, the release of the results would violate

Article I, Section 8. Id.

      More recently, our Supreme Court held that in conducting a blood draw,

as opposed to a blood test, if there is no evidence that hospital personnel

acted at the direction of police or as an agent of the police, and instead,

conducted the blood draw for “independent medical purposes,” the blood draw

did not occur pursuant to section 3755 and likewise, did not trigger the


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protections of the Fourth Amendment to the United States Constitution or

Article I, Section 8 of the Pennsylvania Constitution. Jones-Williams, 279

A.3d at 515, 519-21.     In Jones-Williams, the hospital conducted a blood

draw on Jones-Williams shortly after his arrival following a motor vehicle

accident. Id. at 511. A little over an hour later, a police officer arrived at the

hospital and completed paperwork to have a hospital transfer the blood

sample to a laboratory accredited for BAC testing.          The Supreme Court

determined that the blood draw did not implicate section 3755. Id. at 520.

The Court explained that the record was silent as to why hospital personnel

drew Jones-Williams’ blood prior to the arrival of police at the hospital, but

ultimately determined that the blood draw, and the subsequent blood test, did

not occur pursuant to section 3755 because the paperwork police used to

request the testing of the blood sample stated that it was requesting the test

in accordance with section 1547. Id.

      Recently, however, as noted above, our Supreme Court ruled that

section 3755 is facially unconstitutional. See Commonwealth v. Hunte, ___

A.3d ___, 

 (Pa. 2025). In Hunte, the defendant was the

driver in a single-car accident that resulted in the death of his vehicle’s

passenger. Id. at *3. Following his transport to the hospital, the PSP trooper

who was with the defendant was unable to obtain his consent to a blood draw

because he was unconscious.        Id.   The trooper therefore requested that

hospital personnel draw the defendant’s blood pursuant to section 3755, and


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J-A10028-25


they complied without the defendant’s knowledge or consent, and without the

trooper first obtaining a warrant for the blood draw.     Id.   The PSP later

obtained search warrants to take possession of the defendant’s blood sample

and to have a laboratory test the sample to determine the defendant’s BAC.

Id. at *4. Analysis of the defendant’s blood revealed the presence of alcohol

and controlled substances. Id.

      The defendant was charged with homicide by vehicle while DUI and

related offenses. Id. He filed a motion seeking to suppress the results of the

blood draw on the basis that section 3755 was unconstitutional. Id. The trial

court granted the defendant’s suppression motion and found section 3755

unconstitutional. Id. at *5. Because of “the trial court’s declaration that a

statute of this Commonwealth is unconstitutional,” our Supreme Court

exercised “direct appellate jurisdiction under [s]ection 722(7) of the Judicial

Code.” Id.; see also 42 Pa.C.S. § 722(7).

      In analyzing section 3755, the Supreme Court stated that “[o]n its face,

[s]ection 3755 … purports to authorize the seizure of a person’s blood on the

basis of probable cause to suspect DUI, without the need for a search warrant

or the demonstration of any circumstance-specific exception to the warrant

requirements of the Fourth Amendment and Article I, Section 8.”        Hunte,

 at *2.      Thus, the Court explained, “[b]ecause [s]ection

3755 authorizes warrantless searches for an entire category of cases, its

constitutionality under the Fourth Amendment is facially suspect.” Id. at *9.


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     The Supreme Court examined whether blood draws in DUI cases fell

under any exceptions to the warrant requirement. See id. at **9-21. Relying

on recent developments in Fourth Amendment case law, our Supreme Court

determined that “statutory ‘implied consent’ cannot serve as an independent,

categorical exception to the warrant requirement.” Id. at *16. Furthermore,

the Court stated, “warrantless blood searches are not authorized by any

categorical understanding of exigent circumstances.”       Id.    The Court

concluded that “neither the exigent circumstances doctrine nor consent—

actual or ‘implied’—provides the categorical authority” to excuse the warrant

requirement when conducting a blood draw. Id. at *23.

     Therefore, the Supreme Court held that “[s]ection 3755 is clearly,

plainly, palpably, and indeed, facially unconstitutional under the Fourth

Amendment[,]” and, consequently, that it was also unconstitutional under

Article I, Section 8 of the Pennsylvania Constitution. Id. at *23. The Hunte

Court reasoned that “[a] blood draw conducted under [s]ection 3755 …

remains a warrantless search in search of an exception.” Id. at *16. The

Court thus held that section 3755 concerns the seizure of blood from a DUI

suspect, which constitutes a search under the Fourth Amendment, and that

as such, blood draws require a warrant. Id. Accordingly, the Court concluded

that “[s]ection 3755 purports to authorize warrantless searches of blood in

the absence of any legitimate exception to the Fourth Amendment’s warrant

requirement.”   Id.   Finally, with respect to the warrants law enforcement


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J-A10028-25


procured to seize and analyze the defendant’s blood sample, the Supreme

Court determined that “[a] subsequently obtained search warrant does

nothing to cure the statute’s facial authorization of a warrantless search.” Id.

at *21.

                       Independent Medical Purpose

      As Hunte struck down section 3755 as unconstitutional, section 3755

cannot serve as a legal basis for the blood draw in this case, as there is no

dispute that Persico’s blood draw occurred without a warrant. See id. at *23.

In light of the fact that hospital personnel drew his blood, the question remains

whether Persico is entitled to constitutional protections against unreasonable

search and seizure for the taking of his blood.     See Jones-Williams, 279

A.3d at 515, 519-21; see also Shaw, 

. Together, Shaw

and Jones-Williams instruct that where a hospital conducts a blood draw or

a blood test for independent medical purposes, it is not acting pursuant to

section 3755 and cannot be viewed as an instrument or agent of the

government such that the constitutional protections provided by the Fourth

Amendment and Article I, Section 8 apply.        See 

    Thus, to determine

whether the blood draw in this case was legal, we must analyze whether the

hospital conducted Persico’s blood draw pursuant to section 3755 or for

independent medical purposes. We therefore turn to two cases from this Court

that have analyzed blood draws on DUI suspects and whether they were

conducted for independent medical purposes.


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      In Commonwealth v. West, 

 (Pa. Super. 2003), the

appellant was the operator of a vehicle that collided with and killed the

occupants of another vehicle. 

. At the scene, West showed signs

of intoxication and indicated that he         had been consuming alcohol;

consequently, police placed him under arrest for DUI. 

 Police accompanied

him to Indiana Hospital for treatment for his injuries and while at the hospital,

improperly informed him that if he did not consent to blood testing to

determine his BAC, the hospital would still conduct the tests. 

 West then

consented to a blood draw. 

      After this initial blood draw, representatives from the Indiana County

District Attorney’s Office arrived at the hospital and police informed them that

they had given West inaccurate information regarding the consequences of

refusing to consent to a blood draw. 

. While the representatives

from the district attorney’s office and police discussed the matter in a hospital

hallway, an unidentified nurse informed them that the hospital was going to

conduct a second blood draw.       

   This second blood draw occurred as

hospital personnel were preparing West for transfer via Life Flight helicopter

to Allegheny General Hospital and after they had formally discharged him from

Indiana Hospital. 

. Personnel at Allegheny General conducted

a third blood draw upon West’s arrival at that facility.    

. Police

obtained a warrant for the results of each of the three blood draws. 

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        Pursuant to West’s suppression motion, the trial court suppressed the

results of the first blood draw, but permitted the Commonwealth to introduce

the results of the second and third blood draws. 

 Following trial, a jury

convicted him of homicide by vehicle while DUI and several related offenses.

. On appeal, West challenged the trial court’s decision not to

suppress the results of the second and third blood draws.         

.

Beginning with the third blood draw, we concluded that the trial court did not

err. 

. We reasoned: “It is undisputed that this draw was taken

for independent medical purposes.      No police officers or members of the

Indiana County District Attorney’s Office contacted anyone at Allegheny

General to request this testing.” 

.

        With respect to the second blood draw, this Court determined that the

trial court erred in failing to suppress the results of that blood test. 

. We explained that the second blood draw occurred at Indiana Hospital

after West’s discharge from that hospital. 

. Additionally, testimony

from the suppression hearing suggested that the second blood draw only

occurred after hospital personnel overheard law enforcement’s concerns with

the legality of the first blood draw and decided to arrange the second blood

draw.     

.   We further determined that the certified record

contained no evidence that supported the Commonwealth’s contention that

hospital personnel conducted the second blood draw for independent medical

purposes and thus, we reasoned that we could not “know for certain what


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motivated him to order this test after [West] had already been discharged

from the hospital’s care.” 

. Concluding that the Commonwealth

failed to meet “its burden of proof and persuasion[,]” we explained:

       In light of the fact that [the appellant] had already been
       discharged from Indiana Hospital when the second blood draw
       occurred, a statement that the blood test was done for medical
       purposes does not suffice. The Commonwealth should have
       produced evidence showing what the “independent medical
       purpose” was, or evidence to prove that the blood was drawn
       pursuant to a “perceived duty” by Indiana Hospital arising out of
       [s]ection 3755. Without more, we cannot say the contested
       Indiana Hospital blood draw was in compliance with the law. As
       such, the trial court should have suppressed those results.

 (citations omitted).5

       An en banc panel of this Court later applied West in determining what

evidence the Commonwealth must produce to establish that a blood draw

occurred for independent medical purposes. See Commonwealth v. Miller,

 (Pa. Super. 2010) (en banc). In Miller, when police arrived at

the scene of a single-car accident, they found Miller unconscious, detected a

strong odor of alcohol on him, and observed a case of beer in his vehicle. 

.     Following Miller’s transport to the hospital, medical personnel

conducted a blood draw, which revealed the presence of cocaine in his blood

and a BAC of .22. 

 There was no dispute that the hospital drew and tested



____________________________________________


5  This Court ultimately found that the trial court’s failure to suppress the
results of the second blood draw was harmless error based upon the trial
court’s proper admission of the results of the third blood draw. West, 

.

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Miller’s blood for independent medical purposes. Id. at 515. Police obtained

a warrant for the results of the toxicology screen and the Commonwealth later

charged the defendant with DUI and related offenses. Id. at 510. Miller filed

a motion to suppress the results of his blood draw, which the trial court

granted, concluding that the Commonwealth failed to present evidence of the

reason why the hospital conducted the blood draw. Id. at 510-11.

      On appeal, an en banc panel of this Court reversed the order granting

suppression. Id. at 515-16. We emphasized that “where a blood draw is

conducted for medical purposes, and the results of the blood test are obtained

after proper execution of a search warrant, the results of the blood draw are

admissible in the prosecution of a DUI defendant.” Id. at 513. Additionally,

relying on West, we explained:

      The circumstances of the present case are most like the third
      blood draw in West, where hospital personnel independently did
      a blood draw. There was no evidence to suggest [Miller]’s blood
      draw had been taken for any reason other than independent
      medical purposes. Absent more, the Commonwealth had no
      obligation to prove the sample was taken for independent medical
      purposes. The police obtained a valid warrant for the results of
      [the defendant]’s blood test. Because the blood draw was
      conducted for independent medical purposes, and [police]
      obtained the results of this blood draw after applying for and
      executing a valid search warrant, the court should not have
      suppressed the BAC test results.

Id. at 515.

      This Court also distinguished the blood draw in Miller from the second

blood draw in West. Id. We reasoned that, with respect to the second blood

draw in West, there were several questions as to the motivations underlying

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that blood draw, but there was no suggestion that the blood draw in Miller

occurred for any reason other than independent medical purposes. Id. Thus,

we concluded that “the Commonwealth had no need to produce additional

evidence of the specific independent medical purpose for [Miller]’s blood

tests.” Id.

                                  Analysis

      With this authority in mind, we turn our attention to the facts of this

case. The record reflects that following the crash, Persico arrived at LVHCC

at 12:32 a.m., and that shortly after his arrival, hospital personnel ordered

several blood tests, which included a test for Persico’s BAC. N.T., 3/2/2021,

Exhibit C-5. The record further reflects that Garcia drew Persico’s blood at

1:01 a.m., and that hospital personnel completed a “Chain-of-Custody” form

for a grey-top vial of his blood that HNL would later use to determine his BAC.

Id., Exhibit C-4 (Chain of Custody Form). This form indicated that at 1:28

a.m., Persico’s blood sample was locked in the LVHCC toxicology laboratory,

and that LVHCC then sent the sample to secure storage at HNL at 4:10 a.m.

Id. At no point on the night of the accident was the grey-top vial analyzed

nor was Persico’s BAC determined. On December 12, 2018, Trooper Blaski

obtained a search warrant for HNL to analyze Persico’s blood sample, and on

December 14, 2018, HNL determined Persico’s BAC was .22 at 1:01 a.m. on

the night of crash more than a month earlier. Id., Exhibits C-2, C-4 (HNL

Laboratory Analysis Form).


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       Upon the filing of a motion to suppress evidence, the Commonwealth

bears both the burden of production and the burden of persuasion that law

enforcement    did   not   unlawfully   seize   the   evidence    in   question.

Commonwealth v. Price, 

, 168 (Pa. 2022); see also

Pa.R.Crim.P. 581(H). Although we acknowledge that the Miller Court held

that the Commonwealth has no obligation to prove a blood sample was taken

for independent medical purposes where there is no evidence to suggest

otherwise, here there existed ample evidence to suggest that the blood draw

was not taken for independent medical purposes. See Miller, 

.   The Commonwealth, however, did not present any evidence at the

suppression hearing setting forth the hospital’s reasons for conducting a blood

draw, nor did any hospital personnel testify.

       As our recitation of the record reflects, the grey-top vial containing

Persico’s blood remained in storage at HNL and was not tested for more than

a month after the accident, and that testing did not occur until police obtained

a warrant for the analysis of the blood sample and the results. N.T., 3/2/2021,

Exhibits C-4, C-5. Thus, there can be no contention that the hospital utilized

the blood drawn for medical purposes.

       Further, the record reflects that LVHCC conducted a urine test to

determine Persico’s ethanol level at approximately the same time it conducted

the blood draw at issue and that it received the results of the urine test at

around 2:12 a.m. on the night of the accident. See N.T, 3/2/2021, Exhibit C-


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5. Although the urine test was insufficient to support a charge of DUI or any

DUI-related crimes,6 it would have informed LVHCC of his ethanol level if it

needed such information for medical purposes. This further underscores the

notion that Persico’s blood draw did not occur for independent medical

purposes.

       We therefore conclude that the blood draw in this case was

distinguishable from Miller and the third blood draw in West, as, unlike this

case, there was no factual basis to conclude in either of those cases that the

blood draws in question occurred for anything other than independent medical

purposes. See Miller, 

; West, 

. To the

contrary, like the second blood draw in West, the evidence presented by

Commonwealth at the suppression hearing suggests that Persico’s blood draw

occurred purely for law enforcement purposes.7 See West, 

-

39.   As no hospital personnel testified at the suppression hearing and the

Commonwealth presented no evidence that Persico’s blood draw occurred for

independent medical purposes, the Commonwealth entirely failed to meet its




____________________________________________


6 The DUI statute requires BAC to be determined by “blood or breath,” and
thus, for purposes of criminal prosecution, a urine sample cannot sustain a
DUI or DUI-related conviction. See 75 Pa.C.S. § 3802.

7  We emphasize that we are not bound by a suppression court’s legal
conclusions, nor are bound by a suppression court’s factual findings where
they are not supported by the record. See Carey, 

.

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burden of proof and persuasion to establish otherwise. See Price, 284 A.3d

at 168; see also West, 

.

      We acknowledge that in Jones-Williams, our High Court held that if

there is no evidence that hospital personnel acted at the direction of police or

as an agent of the police in conducting a blood draw, and instead, conducted

the blood draw for “independent medical purposes,” the blood draw did not

occur pursuant to section 3755. See Jones-Williams, 279 A.3d at 515, 519-

21. The Shaw Court, however, likewise made clear that a blood draw does

not need to be conducted at the request of a police officer for section 3755 to

be applicable, but need only occur because of a perceived duty arising out of

section 3755. See Shaw, 

. While there is no evidence in

this case that police directed LVHCC to draw Persico’s blood, there is ample

evidence that the hospital conducted the blood draw in this case pursuant to

a perceived duty under section 3755.

      As established above, the Commonwealth presented evidence that

LVHCC drew Persico’s blood, immediately locked a sample of it in a grey-top

vial, did not analyze it to determine his BAC, and instead sent the sample to

HNL where it remained in storage until Trooper Blaski obtained a warrant over

a month later to have HNL test the sample to determine Persico’s BAC. See

N.T, 3/2/2021, Exhibits C-2, C-4. No evidence of record indicates that LVHCC

drew Persico’s blood for independent medical purposes and all the evidence




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reflects that the blood draw occurred pursuant to the hospital’s perceived duty

under section 3755.

      Based on the foregoing, the blood draw violated Persico’s rights under

both the Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution and the trial court erred in denying

his motion to suppress the results of his blood draw. The subsequent search

warrants that permitted the seizure of Persico’s blood sample for testing did

not cure the defect of the illegal blood draw. See Hunte, 

at *21. We therefore vacate Persico’s judgment of sentence and remand this

matter to the trial court for proceedings consistent with this decision.

      Judgment of sentence vacated.           Case remanded with instructions.

Jurisdiction relinquished.




Date: 7/29/2025




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