Com. v. Loeper

• Decision Date: 23 June 1995
• Citation: 663 A.2d 669,541 Pa. 393
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Todd A. LOEPER, Appellant.
• Court: Pennsylvania Supreme Court

Page 669

663 A.2d 669

541 Pa. 393

COMMONWEALTH of Pennsylvania, Appellee, v. Todd A. LOEPER, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 6, 1994.

Decided June 23, 1995.

[541 Pa. 395] Lawrence J. Hracho, Reading, for T.A. Loeper.

Mark C. Baldwin, Kimberly A. Miles, M. Theresa Johnson, Reading, for Com.

Before: NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

The question before this Court is whether the Superior Court erred in determining that the Commonwealth presented sufficient evidence to support Appellant's conviction of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4) (operation of a motor vehicle while the amount of alcohol by weight in the blood of the person is 0.10% or greater). Upon review of the record we conclude that the evidence was insufficient to establish that Appellant possessed a blood alcohol level of .10% or greater at the time he operated a motor vehicle. Therefore, we reverse the decision of the Superior Court.

In reviewing a challenge to the sufficiency of the evidence we must determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as verdict winner, the jury could have found that each element of the charged offense was proved beyond a reasonable doubt. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989).

On September 28, 1990 a police officer was engaged in an unrelated traffic stop when a portion of Appellant's motor vehicle struck the police officer as Appellant passed the police officer. The police officer radioed for assistance, commenced pursuit, and subsequently stopped Appellant. At this time Appellant's speech was slurred, his eyes were bloodshot and watery, and he emitted an odor of alcohol. Appellant refused field sobriety tests and demanded a blood test. He was immediately arrested. A blood alcohol content ("BAC") test performed at a local hospital approximately two hours later provided a BAC of .141%. Appellant was subsequently charged with reckless driving, ¹ disorderly conduct, ² and two counts of driving under the influence of alcohol. ³ The charge of disorderly conduct and one count of driving under the influence of alcohol (75 Pa.C.S. § 3731(a)(1)) were subsequently dismissed at Appellant's preliminary hearing. A jury trial commenced on November 13, 1991, and Appellant was found guilty of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4).

On appeal to the Superior Court, Appellant argued that the evidence presented was insufficient to support his conviction because it failed to establish that he had operated his vehicle while possessing a BAC of .10% or greater in accordance with this Court's decisions in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992).

In Jarman and Modaffare, this Court reversed the judgments of sentence arising out of drunk driving convictions pursuant to 75 Pa.C.S. § 3731(a)(4), because the BAC evidence introduced by the Commonwealth did not sufficiently establish that the BAC of the defendants exceeded permissible limits at the time the defendants were driving. We reached this conclusion because the offense defined by Section 3731(a)(4) is to drive a vehicle while one's blood alcohol content is .10% or greater, and delay in BAC testing in those cases could have reflected BAC results that were significantly higher than those possessed while the defendants were operating their motor vehicles. In other words, the defendants' BAC could have been below the .10% threshold at the time they were stopped and could have simply risen above the .10% threshold as a result of alcohol being absorbed into the defendants' blood during the delay prior to BAC testing. ⁴

Based upon the lapse of time between driving and BAC testing; the BAC test results that narrowly exceeded the .10% threshold; a ten percent margin of error associated with BAC testing; and the expert testimony provided by the Commonwealth that the BAC of the defendants could have been below .10% while they were driving, we concluded that the jury was permitted to engage in unbridled speculation as to whether the BAC of the defendants were at or above .10% at the critical time of operation. The majority thereafter went on to recognize a strong inference that an accused's BAC would be in the prohibited range while driving where he possesses a BAC significantly above .10% and where BAC testing occurred soon after driving terminates. However, it did not specifically define what blood alcohol level is significantly above .10% or a temporal cut off for the lapse of time between driving and BAC testing.

In the matter sub judice, the Superior Court correctly interpreted our decisions in Jarman and Modaffare through its reliance on Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), allocatur denied, 531 Pa. 660, 613 A.2d 1209 (1992), which provides:

In our view, and in accordance with the dual standards set by our supreme court in Jarman and Modaffare, the stronger the inference of guilt, the less significant is the necessity for evidence of relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused's BAC test result to the time of driving.

Id. at 128, 606 A.2d at 531.

Based upon application of these factors, the Superior Court herein concluded that the trial court had erred in failing to properly apply Jarman and Modaffare, and that Appellant's BAC test results of .141% obtained after a two hour delay did not give rise to a sufficiently strong inference that Appellant possessed a BAC of .10% at the time he drove. We agree with the Superior Court that because Appellant's BAC did not represent a substantial departure from the permissible limit, and his BAC may have been below .10% at the time he was stopped and risen above this limit during the substantial delay prior to testing, the inference of guilt was too weak to support Appellant's conviction in the absence of evidence relating his BAC test results back to the time of driving.

Nevertheless, the Superior Court then went on to determine that there existed additional evidence from which the jury could infer that Appellant's BAC was in excess of .10% at the time when he was stopped, and that Appellant's BAC did not rise between the time he was stopped and the time the BAC test was performed. In other words, the Superior Court determined that other evidence existed which would fulfill the "relation back" requirements of Jarman and Modaffare. This evidence consisted of the testimony of two police officers during the Commonwealth's case in chief that upon being stopped Appellant slurred his speech, which served as the basis for an opinion of Appellant's own expert on cross-examination that most people do not begin to exhibit visible signs of intoxication until they achieve a BAC of approximately .15%. ⁵ On this basis, the Superior Court determined that the jury's finding that Appellant possessed a BAC of .10% or greater while operating his motor vehicle was not based solely on "unbridled speculation" as in Jarman and Modaffare.

Before us, Appellant contends that the Superior Court erred in determining that the existence of this additional evidence sufficiently related Appellant's BAC test results back to the time when he was driving, because such evidence was irrelevant, and thus, could not serve to remedy BAC test results that were found to be insufficient under Jarman and Modaffare. We agree.

The offense of driving under the influence of alcohol or controlled substance is set forth at 75 Pa.C.S. § 3731. ⁶ Based upon this provision, in charging Appellant with the unlawful operation of a motor vehicle while under the influence of alcohol, the Commonwealth was authorized by the Legislature to proceed on either or both of two theories. It could allege that Appellant was under the influence of alcohol to a degree which rendered him incapable of safe driving pursuant to subsection (a)(1). It also could allege that the amount of alcohol by weight in Appellant's blood was .10% or greater pursuant to subsection (a)(4). In fact, Appellant was initially charged with violating both of these provisions. However, at Appellant's preliminary hearing the charge alleging a violation of subsection (a)(1) was dismissed. Therefore, the Commonwealth proceeded to trial only on the charge alleging a violation of subsection (a)(4), which limited the inquiry to whether Appellant operated a motor vehicle while the amount of alcohol by weight in his blood was .10% or greater. 75 Pa.C.S. § 3731(a)(4).

Appellant contends that the manner in which the Commonwealth may prove a violation of subsection (a)(4) is limited by the nature of the inquiry to scientific BAC testing evidence, since it is the only manner in which a BAC of .10% or greater may be established. Thus, if scientific BAC testing is the only evidence that may used to support a conviction pursuant to subsection (a)(4) then where such evidence is insufficient, a conviction pursuant to subsection (a)(4) cannot be upheld based upon additional evidence that an accused manifested symptoms of intoxication. In support of this proposition Appellant cites to the decision of the Superior Court in Commonwealth v. Kemble, 413 Pa.Super. 521, 605 A.2d 1240 (1992), allocatur denied, 532 Pa. 651, 615 A.2d 340 (1992).

In Kemble the question presented was whether the trial court erred in admitting, and/or in instructing the jury with regard to, evidence provided by a police officer in the Commonwealth's case in chief concerning the defendant's impaired physical condition. Specifically, a police officer testified that he observed the defendant make an extremely wide turn, nearly proceed down a one-way...