Com. v. Freidl

• Decision Date: 10 October 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Frank T. FREIDL, Jr., Appellant.
• Court: Pennsylvania Superior Court

834 A.2d 638

COMMONWEALTH of Pennsylvania, Appellee, v. Frank T. FREIDL, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted June 30, 2003.

Filed October 10, 2003.

Christopher M. Shipman, Easton, for appellant.

James B. Martin, Asst. Dist. Atty., Allentown, for Com., appellee.

BEFORE: FORD ELLIOTT, GRACI, and POPOVICH, JJ.

OPINION BY GRACI, J.:

¶ 1 Appellant, Frank T. Freidl, Jr. ("Freidl"), appeals from a judgment of sentence entered October 30, 2002, in the Court of Common Pleas of Lehigh County. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 The facts of record establish that on July 15, 2001, at approximately 1:23 a.m., Freidl was operating his vehicle in the city of Allentown when he was stopped by Officer Michael Kenderski at a DUI checkpoint. Freidl admitted to the officer that he had consumed two beers that evening. Field sobriety tests were conducted and Freidl was placed under arrest before being transported to a DUI processing center, where he submitted to a blood test. The test, administered at 1:42 a.m., indicated a blood alcohol content ("BAC") of 116 milligrams per deciliter, or .116%. Freidl was charged by Information with violating 75 Pa.C.S.A. § 3731(a)(1) (driving while under the influence and incapable of safe driving) and § 3731(a)(4)(i) (driving with a BAC of .10% or greater).

¶ 3 In a motion in limine filed August 5, 2002, the Commonwealth notified the trial court of its intent to proceed only on count two of the information charging Freidl under § 3731(a)(4)(i). In light of its withdrawal of the § 3731(a)(1) charge, the Commonwealth requested the court to preclude Freidl from offering any evidence related to the impairment of his driving ability, including, but not limited to, a videotaped recording of Freidl's field sobriety tests.

¶ 4 Freidl proceeded to a bench trial on August 12, 2002. As a preliminary matter, the trial court granted the Commonwealth's motion in limine and dismissed count one of the information. Testifying for the Commonwealth were Officer Kenderski and Joanne Sell, the technician responsible for testing Freidl's blood sample. Freidl testified on his own behalf and, in addition, offered the testimony of Dr. Isidore Mihalakis, who the parties stipulated was an expert in the field of forensic toxicology. The trial court found Freidl guilty of driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(4), and sentenced him to a term of imprisonment of thirty days to eighteen months, with immediate work release granted. Freidl now appeals directly from his judgment of sentence.

¶ 5 In his statement of questions presented, Freidl identifies the following issues for our consideration:

I. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION, THEREBY COMMITTING REVERSIBLE ERROR, BY GRANTING THE COMMONWEALTH'S MOTION TO PRECLUDE [FREIDL] FROM INTRODUCING VIDEOTAPE EVIDENCE DEPICTING [FRIEDL] PERFORMING FIELD SOBRIETY TESTS AFTER HIS ARREST WHERE THE COMMONWEALTH PROCEEDED AT TRIAL ON 75 Pa.C.S.A. § 3731(a)(4), WHICH PERTAINS TO DRIVING UNDER THE INFLUENCE OF ALCOHOL WHILE THE AMOUNT OF ALCOHOL BY WEIGHT IN THE DEFENDANT'S BLOOD WAS 0.10% OR GREATER.

...

II. WHETHER THE TRIAL COURT IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF IN THE COMMONWEALTH'S PROSECUTION TO THE DEFENDANT TO PROVE THAT HIS BLOOD ALCOHOL LEVEL WAS NOT IN EXCESS OF THE LEGAL LIMIT WHERE THE TRIAL COURT RELIED UPON A PERMISSIVE INFERENCE AS TO THE DEFENDANT'S BLOOD ALCOHOL CONCENTRATION WHERE THERE WAS EXPERT TESTIMONY PRESENTED BY [FREIDL] THAT HIS BLOOD ALCOHOL LEVEL COULD NOT BE RELIABLY ASCERTAINED

TO BE IN EXCESS OF THE LEGAL LIMIT.

...

Brief of the Appellant, at 6.

II. DISCUSSION

¶ 6 In his first issue, Freidl argues that the trial court erred in granting the Commonwealth's motion in limine, thereby precluding Freidl from introducing into evidence a videotaped recording of his field sobriety tests. Freidl concedes that the Commonwealth, by electing to proceed only under 75 Pa.C.S.A. § 3731(a)(4), was barred from presenting evidence related to impairment of his driving ability ("impairment evidence"). Freidl argues, however, that this evidentiary bar does not, and should not, apply to the defendant in a DUI case. We disagree.

¶ 7 "A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered." Commonwealth v. Johnson, 399 Pa.Super. 266, 582 A.2d 336, 337 (1990), affirmed, 534 Pa. 51, 626 A.2d 514 (1993) (citation omitted). Our Court reviews the grant of such a motion "by applying the scope of review appropriate to the particular evidentiary matter at issue." Id. (citation omitted).

¶ 8 Here, the trial court, in granting the Commonwealth's motion in limine, relied upon this Court's decision in Commonwealth v. Kemble, 413 Pa.Super. 521, 605 A.2d 1240 (1992), appeal denied, 532 Pa. 651, 615 A.2d 340 (1992). In Kemble, as in the case sub judice, appellant was originally charged with both 75 Pa.C.S.A. § 3731(a)(1) and § 3731(a)(4), however the former charge was dismissed prior to trial. On appeal, Kemble argued that the trial court erred in admitting evidence regarding her alleged impaired ability to operate her automobile. The Kemble court began its analysis with a discussion of its standard of review and the evidentiary concept of relevance, all of which are applicable in the instant case:

Questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. The basic requisite for the admissibility of any evidence in a case is that it be competent and relevant. Though `relevance' has not been precisely or universally defined, the courts of this Commonwealth have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.

Kemble, 605 A.2d at 1241-42 (quoting Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416, 428 (1991)). The Court then compared the two statutory provisions, noting that whereas § 3731(a)(1) requires proof that a defendant was, in fact, incapable of safe driving, § 3731(a)(4) "simply creates a presumption that a person is unfit to drive if the Commonwealth demonstrates, via, inter alia, an intoxilyzer test, that her blood alcohol level was .10% or greater." Id. (footnote omitted). Therefore, the Court reasoned,

[i]f an (a)(4) charge was, as in the instant case, unaccompanied by an (a)(1) charge, then the only relevant evidence that would prove the fact that a defendant violated § 3731(a)(4) would relate to the existence of an intoxilyzer test, the results of the test, the reliability of the intoxilyzer machine, the qualifications of the person who administered the test, the procedures utilized in conducting the test and the methods employed in arriving at the test results.

Id. (footnote omitted). Relevant impairment evidence, the Kemble court noted, would be admissible in a § 3731(a)(1) prosecution, or in a prosecution that involves §§ 3731(a)(1) and (a)(4). Id.

However, a § 3731(a)(4) charge, when unaccompanied by a § 3731(a)(1) charge, involves a narrowly focused inquiry that is solely concerned with a determination of whether a defendant had a .10% or greater blood alcohol level at the time that she drove her automobile. During such an inquiry impairment evidence is not relevant since it does not logically or reasonably tend to prove or disprove that a defendant's blood alcohol level was .10% or greater at the time that she drove her automobile, it does not tend to make such a fact more or less probable and it does not afford a basis for or support a reasonable inference or presumption regarding whether a defendant's blood alcohol level was .10% or greater.

Id. at 1242-43 (footnote omitted) (citation omitted). This Court concluded that the impairment evidence offered against Kemble was not relevant and that the trial court had improperly admitted that evidence. Id. See also Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669, 673 (1995)

(agreeing with Kemble decision and holding that "given the framework of Section 3731, evidence beyond that provided by a scientific BAC testing is not relevant to a determination of whether an accused violated subsection (a)(4).").

¶ 9 Instantly, Freidl's contention that he, as the defendant, is entitled to introduce impairment evidence to defend a § 3731(a)(4) charge is unavailing. While it may be true that Kemble (and Loeper ) bar the Commonwealth from using impairment evidence, those decisions were in no way limited to prosecutors of § 3731(a)(4) cases. In fact, the express language of Kemble suggests otherwise: "During [a § 3731(a)(4) ] inquiry impairment evidence is not relevant since it does not logically or reasonably tend to prove or disprove that a defendant's blood alcohol level was .10% or greater at the time that she drove her automobile, [and] it does not tend to make such a fact more or less probable...." Kemble, 605 A.2d at 1243 (emphasis added) (footnote omitted). Kemble's broad proscription on impairment evidence was, in our view, intended to apply to either party in a § 3731(a)(4) case.

¶ 10 Section 1547(f) of the Vehicle Code on which Freidl places substantial reliance does not yield a contrary result. That section provides:

Subsections (a) through (i) [of section 1547] shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of alcohol.

75 Pa.C.S.A. § 1547(f) (emphasis added). This provision allows for the introduction of all competent evidence on the question of whether or not a defendant was under the influence of alcohol. Section 3731...