Com. v. Marshall

• Decision Date: 12 May 2003
• Citation: 824 A.2d 323
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brandon K. MARSHALL, Appellant.
• Court: Pennsylvania Superior Court

824 A.2d 323

COMMONWEALTH of Pennsylvania, Appellee, v. Brandon K. MARSHALL, Appellant.

Superior Court of Pennsylvania.

Submitted August 12, 2002.

Filed May 12, 2003.

Scott A. White, Public Defender, Clarion, for appellant.

Mark T. Aaron, Asst. Dist. Atty., Clarion, for Com., appellee.

BEFORE: STEVENS, BOWES, and OLSZEWSKI, JJ.

OPINION BY STEVENS, J.:

¶ 1 Brandon Marshall, Appellant, appeals from the judgment of sentence entered after a jury convicted him of two counts of driving under the influence of alcohol (DUI).¹ Appellant challenges trial court rulings that permitted the admission of preliminary breath test evidence, and that sequestered Appellant's scientific expert. We find that the Commonwealth's repeated and extensive use of inadmissible preliminary breath test evidence prejudiced Appellant, thus entitling him to a new trial.

¶ 2 This case arises from a late night vehicular stop after Appellant temporarily lost control of his car on a snow-covered road. Officer Neil Kemmer of the Clarion Borough Police Department arrested Appellant following field sobriety tests, and transported him for a hospital-drawn blood alcohol content test (BAC), which was performed forty-two minutes after the stop. The results of Appellant's BAC test were.10%. Therefore, the Commonwealth charged Appellant with two counts of DUI and presented its case at Appellant's June 28, 2001 trial.²

¶ 3 Testimony at trial established that Appellant and two friends left a popular Clarion college bar just after its 2:00 a.m., Saturday morning closing. As Appellant drove west on South Street in snowy, slushy conditions, Officer Kemmer drove his cruiser approximately one block's distance behind. From that vantage point, Officer Kemmer watched the back end of Appellant's car slide out almost ninety degrees in excess of an intended ninety-degree left-hand turn. N.T. 6/28/01 at 23-25, 40-42. As a result of the slide, Appellant's car came to a stop facing east in the eastbound lane of South Street, just short of a parked car. Appellant reversed his car to correct its angle, and then proceeded up the side street before Officer Kemmer stopped him. N.T. at 42. Officer Kemmer testified that Appellant was stopped for the slide, and not for speeding or any other motor vehicle violation. N.T. at 43, 49.

¶ 4 Once stopped, Appellant rolled down his driver's side window and readily produced his driving papers. N.T. at 43-44. With the window down, Officer Kemmer noticed that Appellant smelled of alcohol and had bloodshot, watery eyes. N.T. at 44. Addressing neither of Appellant's two passengers, Officer Kemmer ordered Appellant out of the car for sobriety field tests. N.T. at 45. Appellant exited without staggering and responded at all times without slurring his speech. Id.

¶ 5 In recounting the field tests for the jury, Officer Kemmer explained that the first one he administered was the finger-to-nose test. Officer Kemmer determined that Appellant failed by prematurely starting the test and by touching above the tip of his nose. N.T. at 46. Officer Kemmer testified that light snow was falling at the time of the test, and that at least one, and probably both, patrol cars at the scene had their overhead lights flashing. N.T. at 47.

¶ 6 The second field test was the heel-to-toe walk, where Appellant had to walk with heel touching toe for nine steps, turn around, and walk nine steps back to the starting point. Appellant failed this test as well because two of his eighteen steps were an inch apart or a little off-center. N.T. at 47. Officer Kemmer could not remember if he had first cleared a path for Appellant, who was wearing sneakers that evening. N.T. at 46-47.

¶ 7 The final field test was the single leg stand, where Appellant had to raise one leg six inches off the ground and count from one-thousand one to one-thousand thirty while standing on the remaining leg. Failure usually occurs if a person loses balance or miscounts. N.T. at 49. According to Officer Kemmer, Appellant passed this test.

¶ 8 At that point in Officer Kemmer's testimony, the Commonwealth asked him if he administered any other field tests. Officer Kemmer told the jury that he also gave Appellant a portable breath test (PBT). When the Commonwealth asked Officer Kemmer to explain a PBT for the jury, defense counsel reissued an earlier objection—overruled during opening statements—that PBT evidence is inadmissible at trial. N.T. at 31. After removing the jury to allow for open discussion on the objection, the court ruled that PBT evidence was admissible to prove probable cause for Appellant's arrest on DUI charges. N.T. at 32.

¶ 9 The jury returned and, uninstructed on the court's ruling as to the limited purpose of PBT evidence, heard extensive discussion about the PBT given to Appellant:

Commonwealth (Q): Now, can you describe for the members of the jury exactly what a portable breath test device is?

Officer Kemmer (A): Portable breath test device is a device that is a little black box, has a hollow tube on the top. I had Mr. Marshall blow through the tube. I could feel air coming through. Once he give his breath test I stop it and it shows me a reading of what his breath test was.

Q: Okay. Now, does this give a figure at that time, read out, or does it give simply a reading of pass, fail?

A: It's a digital read out.

...

Q: Is the PBT a calibrated or non-calibrated device?

A: It's a calibrated device.

Q: And what is a calibrated device?

A: It's a device that is calibrated every sixty days. It makes sure it's accurate. They test it every sixty days to make sure it's accurate.

Q: Much the same that radar is tested periodically to make sure that its accurate?

A: Yes.

Q: Intoxilyzers in the station, the large units, are a calibrated device?

A: Yes.

Q: So, solely to insure it's accuracy if it's going to be used?

A: Yes.

Q: The device that you used that night, was it a calibrated or non-calibrated device?

A: It was calibrated.

Q: Okay. And do you recall what the reading was on that calibrated device when it was administered to the defendant?

A: Point one zero.

Q: Point one zero?

A: Point one zero.

Q: Now, from the time you stopped the vehicle until the PBT was administered, what period of time elapsed?

A:...nine minutes.

Q: Within nine minutes?

A: Within nine minutes.

Q: So I understand, the PBT would have been administered before being placed into custody?

A: Yes.

Q: Now, what is the PBT used for?

A: Probable cause.

Q: Probable cause?

A: Yes.

Q: So, in other words, if an individual read point one zero that is not the end of the case right there, there's additional testing?

A: Yes.

...(discussion regarding Appellant's blood test drawn at hospital).

Q: And were you supplied with a copy of the Clarion Hospital Blood Alcohol Test Report...?

A: Yes. On December 14 I received that which showed a result of point one zero percent.

Q: Okay. So the blood test that you received from the hospital was in fact consistent with the PBT test in terms of alcohol reading?

A: Yes, it was.

Q: And one was breath and one was blood?

A: Yes, it was.

Q: And are those both approved methods of testing?

A: Yes, they are.

...

Q: When you blow into it I take it from your testimony that it starts on zero zero and then gradually climbs until it reaches what the machine reads as the then blood alcohol reading and stops at this point?

A: Yes.

N.T. at 32-36, 52.

¶ 10 Finally, the Commonwealth argued to the jury in closing that Appellant's relation-back expert may have been specific about Appellant's consumption and absorption of alcohol,

[b]ut the one thing that you [the jury] have to consider, the one thing that [the expert] never attacked or [had] anything to testify to was the point one zero reading on the calibrated point [sic] or PBT given by Officer Kemmer or that point one zero [hospital blood test].... So when you get to the jury room consider these factors. We have an undisputed test from the hospital showing point one zero, we have a calibrated PBT not attacked by the defense showing a point one zero, we have discrepancies in [Appellant's expert's] report on the numbers.... ....So keep that in mind, and please bring back a conviction on both counts.

N.T. at 163.

¶ 11 The jury received standard instructions on the two DUI charges, but again received no corresponding limiting instruction for PBT evidence. N.T. 163-177. Moreover, included in the Section 3731(a)(4) DUI-BAC instruction was statutory language that a prima facie case may be based on "a chemical test [ ] performed on a sample of that person's breath, blood, or urine provided the sample is taken from the defendant within three hours of driving[,]" but without explanation that a PBT is not a qualifying chemical test on breath.³ N.T. at 173. ¶ 12 The jury took the case at 3:53 p.m. N.T. at 177. During its deliberations, the jury asked the court on two occasions to clarify the Section 3731(a)(1) DUI-Incapable of Safe Driving charge. At 7:00 p.m., the jury returned verdicts of guilt on both charges.

¶ 13 On September 5, 2001, the trial court set a sentence of incarceration of not less than forty-eight hours or more than two years less one day in the Clarion County Prison, with automatic parole under county supervision commencing after the completion of the forty-eight hour minimum sentence. The trial court postponed sentence pending post-sentence motions, where Appellant requested a new trial because of, inter alia, admission of PBT evidence. The trial court agreed that PBT evidence was in fact inadmissible, but it nevertheless found that no prejudice befell Appellant in a case of otherwise "substantial" independent evidence of guilt. The trial court denied Appellant's post-sentence motions and ordered Appellant to serve his sentence beginning on January 18, 2002. This appeal followed.

¶ 14 It is well-settled that a trial court's rulings on evidentiary questions are controlled by the discretion of the trial court, and this Court will...