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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

“Appellants”) appeal from their judgments of sentence. We reverse. 
J-S30036-14

- 2 - 

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

 and 

(c).2

 Section 3802(c) provides: “An individual may not drive, operate or be 

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.” To establish a conviction under § 3802(c), the 

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 

refers to a test of the defendant’s whole blood. See, e.g., Commonwealth 

v. Wanner, 605 A.2d 805 (Pa.Super.1992) (“the statute requires a ‘whole 

blood’ analysis”); Commonwealth v. Bartolacci, 598 A.2d 287, 288 

(Pa.Super.1991) (“Where a test is performed on blood serum rather than 

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

with evidence of the alcohol by weight in the defendant’s blood in order to 

properly sustain a conviction based upon a violation of § 3731”). If the 

____________________________________________ 

1 Section 3802(a)(1) provides: “An individual may not drive, operate or be 

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 

of the vehicle.”

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. 
J-S30036-14

- 3 - 

Commonwealth tests any other blood aspect, including serum,3

 plasma,4or 

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-the clear liquid i[n] the blood serum.” 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” is defined as “the fluid portion of blood in which particulate 

components are suspended.” Commonwealth v. Wanner, 605 A.2d 805, 

807-08 (Pa.Super.1992). 

5 This Court has defined “supernatant” as “the usu[ally] clear liquid overlying 

material deposited by settling, precipitation, or centrifugation.” Renninger, 

682 A.2d at 362 n. 4 (citation omitted). 
J-S30036-14

- 4 - 

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

 It granted the Commonwealth’s motion in limine, finding 

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). 

On February 7, 2013, the Commonwealth filed a “Motion in Limine for 

the Admission of Evidence (Lab Technician Testimony Concerning 

‘Converting Evidence’).” This motion requested that the trial court adopt the 

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

would satisfy the Commonwealth’s burden. Stahl also filed motions related 

____________________________________________ 

6

 “Gas chromatography/mass spectrometry is considered the “gold 

standard” of tests within the forensic drug testing field.” Major David Edward 

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

to the Dance?, 2010-JUL Army Law. 15, 19 (Army Lawyer, July 2010). 
J-S30036-14

- 5 - 

to the conversion ratio.7

 On February 12, 2013, without a hearing,8 the 

Honorable Thomas King Kistler granted the Commonwealth’s motion. Order, 

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 sample of the Defendant’s 

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 

____________________________________________ 

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 The Commonwealth’s motion states the parties agree that the court could 

consider as evidence the notes of testimony from the Daughenbaugh

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

Technician Testimony Concerning “Converting Evidence”). Stahl does not 

dispute this. 
J-S30036-14

- 6 - 

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: 

Q: Okay. I’ll come back to that in a second. Let’s go over 

it now. On this document it says testing performed on 

whole-blood specimen. That’s not correct?

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

it's been treated with trichloroacetic acid [“TCA”].

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? 
J-S30036-14

- 7 - 

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-andwhite -- 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. 
J-S30036-14

- 8 - 

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, 
J-S30036-14

- 9 - 

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 

Testimony Concerning “Converting Evidence”). Emigh also filed multiple 

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) 
J-S30036-14

- 10 - 

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 

sample of the Defendant’s blood.

Order, 2/27/2013. 

At trial, Emigh’s counsel attempted to cross-examine the 

Commonwealth’s witness regarding her knowledge of the 1:1 conversion 

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. 
J-S30036-14

- 11 - 

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? 
J-S30036-14

- 12 - 

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? 
J-S30036-14

- 13 - 

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. 
J-S30036-14

- 14 - 

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. 
J-S30036-14

- 15 - 

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 

hearing on the Commonwealth’s motion in limine where

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 

____________________________________________ 

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. 
J-S30036-14

- 16 - 

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. 

Appellants’ Brief at 1. 

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, 

136 (Pa.2007). “An 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 erroneous.” 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 

Commonwealth presented “converting evidence . . . to establish the alcohol 

content of whole blood.” 682 A.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 crossexamination of the Commonwealth’s expert witness or presentation of a 

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

that controls the outcome of the case. See id., at 1016. 
J-S30036-14

- 17 - 

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 

testimony that there was “no accepted ‘conversion range’ for supernatant to 

whole blood.” 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

defendant’s expert testimony and calculated a conversion rate for the second 

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 

insufficient to sustain the defendant’s conviction. Id. at 165. 

In Commonwealth v. Brugger, the trial court denied the 

Commonwealth’s motion in limine requesting a pre-trial hearing on the 

admissibility of blood alcohol content test results. 88 A.3d 1026 
J-S30036-14

- 18 - 

(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 decision addressed the Commonwealth’s 

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 

Commonwealth and noted there were “several areas of uncertainty relative 

to” the hospital’s testing protocol for supernatant. Id. at 1032. 

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

hearing. Brugger, 88 A.3d at 1034-35. It found the court’s reliance on the 

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-blood, “the source, content, and rigor required of such 

testimony remains less than clear.” 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.
J-S30036-14

- 19 - 

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 hearing

11 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 noted, there has been little guidance regarding “the 

source, content, and rigor required of” converting evidence. 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. The issue of whether Appellants’ 

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). 

The trial court’s in limine ruling prevented the jury from determining a fact 

____________________________________________ 

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

court could rely on the notes of testimony from Daughenbaugh. 
J-S30036-14

- 20 - 

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