The Pennsylvania Superior Court vacated the conviction of former Luzerne County attorney Joseph L. Persico in a fatal 2018 wrong-way crash on Interstate 476, finding that the blood draw at the center of the case violated constitutional protections against unlawful searches.

In a 29-page opinion filed Tuesday, a three-judge panel ruled that the prosecution failed to show Persico’s blood was taken for independent medical purposes and concluded that the sample was drawn under a now-invalidated section of Pennsylvania’s Vehicle Code.

“Because we agree with Persico that his blood draw was illegal, we vacate his judgment of sentence and remand this matter to the trial court,” Superior Court Judge Jill Beck wrote for the panel.

The decision sends the case back to Carbon County Court of Common Pleas, where Persico had been sentenced in February to three to six years in state prison.

“This office is reviewing the Superior Court’s ruling to evaluate an appeal to the Pennsylvania Supreme Court,” Carbon County District Attorney Mike Greek said on Thursday.

Fatal crash in 2018

The charges stemmed from a late-night crash on Nov. 6, 2018, near the Mahoning Valley interchange of the Pennsylvania Turnpike’s Northeast Extension. According to testimony at trial, Pennsylvania State Police Trooper John P. Blaski responded around 11:54 p.m. to a report of a multi-vehicle accident in the northbound lanes. When he arrived, he found a white Audi A4 facing southbound against the median barrier.

Investigators determined Persico’s Audi had been traveling the wrong way when it collided head-on with a green Honda Civic driven by 50-year-old Paul Gerrity. The impact pushed Gerrity’s car into a blue Toyota Corolla operated by Pan Tso. Carbon County Deputy Coroner Robert Miller pronounced Gerrity dead at the scene from multiple blunt-force injuries. Tso was hospitalized but survived.

Paramedics transported Persico to Lehigh Valley Hospital-Cedar Crest. Hospital records show that at 1:01 a.m., technician Raymond Garcia drew a blood sample. A chain-of-custody form indicated the sample was sealed in a gray-top vial and sent to long-term storage at Health Network Laboratories by 4:10 a.m. It was not tested that night, according to Persico’s appeal. More than a month later, on Dec. 12, 2018, Trooper Blaski obtained a search warrant for analysis. The test performed on Dec. 14 measured Persico’s blood alcohol content at 0.22, more than twice the legal limit.

Court’s reasoning

The Superior Court decision turned on whether the blood draw was conducted for a legitimate medical reason or for law enforcement purposes without a warrant. The panel noted that no hospital staff testified at the suppression hearing and that the commonwealth offered no evidence explaining why the sample was taken. The fact that the sample was locked, never analyzed by the hospital, and only tested after a police warrant, the court said, “underscores the notion that Persico’s blood draw did not occur for independent medical purposes.”

The judges compared the case to prior rulings requiring the commonwealth to show a medical justification when blood is drawn absent police involvement.

“All the evidence reflects that the blood draw occurred pursuant to the hospital’s perceived duty under Section 3755,” the opinion stated.

Section 3755 of the Pennsylvania Vehicle Code mandated that hospitals take blood samples from drivers in suspected DUI crashes. But during Persico’s appeal, the Pennsylvania Supreme Court struck down that law in Commonwealth v. Hunte, declaring it “facially unconstitutional” because it authorized warrantless blood seizures without an applicable exception to the Fourth Amendment. Citing that precedent, the Superior Court ruled that “subsequent search warrants that permitted the seizure of Persico’s blood sample for testing did not cure the defect of the illegal blood draw.”

Sentencing and background

Persico, 74, of Shavertown, was convicted in October 2023 on multiple counts, including homicide by vehicle while DUI, homicide by vehicle, involuntary manslaughter, and DUI-highest rate of alcohol. At his February 2024 sentencing, Judge Joseph Matika referenced a presentence report containing 37 letters of support and described the case as unlike any he had seen.

“I’ve never had to sentence an individual where there was so much support,” Matika said from the bench. “But there was an evil lurking within that man and that evil was alcoholism. I think you downplayed the extent to which alcoholism had consumed you and, sadly, you realized that too late.”

Following the crash, Persico suffered a fall at home that left him paralyzed and using to a motorized wheelchair.

“Of all the things I have asked of God in my life, the thing I ask the most is to turn back the hands of time and eliminate the tragedy of that day,” Persico said at his sentencing. “For about three years I’ve been confined to a wheelchair and imprisoned in my shell of a body, and if this is God’s response to the tragedy of that day, so be it.”

Carbon County Assistant District Attorney Kara Beck, who prosecuted the case, told the court the sentencing marked a milestone for Gerrity’s family after years of waiting.

“Today is about the victims,” she said at the time. “No sentence that any judge could fashion will turn back the hands of time and bring Paul back for his family.”

In a letter to the court, Gerrity’s sister Donna wrote: “It was totally within someone’s control not to get behind the wheel of a car and drive drunk. My brother didn’t have to die.”