Com. v. Metzer

• Decision Date: 24 November 1993
• Citation: 430 Pa.Super. 217,634 A.2d 228
• Parties: COMMONWEALTH of Pennsylvania v. John Alan METZER, Appellant.
• Court: Pennsylvania Superior Court

Page 228

634 A.2d 228

430 Pa.Super. 217

COMMONWEALTH of Pennsylvania v. John Alan METZER, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 5, 1993.

Filed Nov. 24, 1993.

[430 Pa.Super. 221] Nathan Criste, Doylestown, for appellant.

Troy Leitzel, Asst. Dist. Atty., Doylestown, for Com., appellee.

Before CIRILLO, BECK and KELLY, JJ.

KELLY, Judge.

In this appeal we are called upon to determine whether the trial court erred in its sua sponte reconsideration of its decision to grant appellant's motion in limine to exclude the results of a breathalyzer test after appellant's counsel made his opening statement to the jury in reliance upon the initial ruling. We reverse judgment of sentence and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

On October 6, 1991, at approximately 3:35 a.m., appellant struck the rear of an automobile stopped for a red light at the intersection of Oxford Valley Road and Trenton Road in Falls Township. Officer Henry P. Ward of the Falls Township Police Department responded to the report of the traffic accident. Upon arriving at the accident scene, Officer Ward observed appellant walking back from a nearby 7-11 store. Officer Ward approached appellant and directed him back to his car in order to obtain appellant's driver's license, vehicle registration and automobile insurance. While speaking to appellant, Officer Based upon his observations, Officer Ward placed appellant under arrest and secured him in his patrol car. Officer Ward then transported appellant to the hospital for a blood test; however, appellant expressed a fear of needles. Therefore, he was taken back to the Falls Township Police Station for a breathalyzer test. The breathalyzer test was administered to appellant at 5:14 a.m., approximately one hour and forty minutes after the accident occurred. The breathalyzer test recorded appellant's blood alcohol content to be 0.12%.

Ward noted that appellant's eyes were [430 Pa.Super. 222] bloodshot and glassy. Officer Ward also detected an odor of alcohol around appellant. However, Officer Ward also noticed that appellant had no difficulty speaking or producing his driver's license and other relevant documents.

Appellant was subsequently charged with driving a motor vehicle while under the influence of alcohol to such a degree as to render him incapable of safe driving pursuant to 75 Pa.C.S.A. § 3731(a)(1) ¹ and driving a motor vehicle while having a blood alcohol content (BAC) of 0.10% or greater pursuant to 75 Pa.C.S.A. § 3731(a)(4). ²

Shortly before trial, appellant filed an omnibus pre-trial motion. In Part I of this omnibus pre-trial motion, appellant argued that he had been improperly charged with violating two subsections of the same statute, 75 Pa.C.S.A. § 3731 et seq., in one criminal information even though each subsection alleges a different manner and standard for violating the statute. In Part II of his omnibus pre-trial motion, appellant alleged that Officer Ward had failed to properly apprise him of his Miranda rights; thus, any statement that he made to Officer Ward must be suppressed. Appellant further alleged in Part II of his omnibus pre-trial motion that the breathalyzer equipment used to administer his breathalyzer test was improperly calibrated under the applicable rules and regulations of the Department of Transportation. Oral argument was held on appellant's omnibus pre-trial motion. As a result of oral argument, appellant's statements to Officer Ward were suppressed. However, the results of the breathalyzer test were not suppressed.

On the day of trial, appellant filed a motion in limine alleging that because the breathalyzer test was taken one hour and forty minutes after his arrest and the Commonwealth possessed no admissible evidence regarding the time at which he consumed his last alcoholic beverage on the morning of the accident, the Commonwealth was unable to relate back the results of the breathalyzer test to the time of the accident as required by recent Supreme Court cases, Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992) and Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992). Thus, appellant maintained, the results of the breathalyzer test were inadmissible at appellant's trial for violating of 75 Pa.C.S.A. § 3731(a)(1) and 75 Pa.C.S.A. § 3731(a)(4).

After oral argument was held on appellant's motion in limine, the trial court reviewed the relevant case law and directed that the results of the breathalyzer test be excluded from evidence. The trial court then ordered the case to proceed to trial. The Commonwealth did not choose to appeal this ruling as it is permitted to do when it certifies that the exclusion of evidence substantially handicaps the prosecution. See Commonwealth v. Steding, 480 Pa. 485, 391 A.2d 989 (1978); Commonwealth v. Parrella, 416 Pa.Super. 131, 610 A.2d 1006 (1992); Pa.R.App.P. 311(d). A jury was then selected and the trial began.

In his opening statement to the jury, defense counsel stated that the Commonwealth's evidence of appellant's alleged intoxication consisted exclusively of the testimony The jury returned from lunch and the trial court opened the proceedings with a curative instruction regarding the admission of some evidence that was not referred to in counsel's opening statements. (N.T. 2/6/92 at 55-57). At the close of the Commonwealth's case in which it presented the breathalyzer results together with the testimony of Ms. Rolland and Officer Ward, the trial court sustained appellant's demurrer to the portion of the charge which stated that appellant had violated 75 Pa.C.S.A. § 3731(a)(4) by driving while having a BAC. of 0.10% or greater. Appellant was subsequently convicted of § 3731(a)(1), driving while under the influence of alcohol to such a degree as to render him incapable of safe driving, 75 Pa.C.S.A. § 3731(a)(1). Appellant filed timely post-trial motions which were denied. Appellant was sentenced to serve not less than forty hours nor more than one year in the county prison. Appellant was also fined three hundred dollars. The trial court stayed imposition of sentence pending the filing of an appeal. This timely appeal followed.

of the driver of the other car, Charlene D. Rolland, and the testimony of the arresting officer, Henry P. Ward. After counsel had made their opening statements, the trial court called a recess, [430 Pa.Super. 224] excused the jury for lunch and called counsel into his chambers. At this chambers conference, the trial court stated it was reversing its earlier ruling excluding the results of the breathalyzer test and directed that the breathalyzer results be admitted into evidence. At this point, appellant motioned for a mistrial. This motion was denied by the trial court. Instead, the trial court gave appellant the alternatives for dissipating any prejudice, which might have accrued to appellant, of either selecting a curative instruction or making another opening statement. Appellant selected the curative instruction alternative.

Appellant presents the following issues for our consideration.

A. DID THE COURT ERR BY ADMITTING INTO EVIDENCE THE RESULTS OF A BREATHALYZER TEST TAKEN ONE HOUR AND FORTY MINUTES AFTER ARREST WITHOUT PRESENTATION OF EXPERT TESTIMONY TO RELATE BACK THE RESULTS OF THE TEST TO THE TIME OF THE ACCIDENT?

B. DID THE COURT ERR IN ITS INSTRUCTIONS TO THE JURY REGARDING THE MEANING OR SIGNIFICANCE OF THE BREATHALYZER EVIDENCE FROM A SCIENTIFIC AND A LEGAL STANDPOINT?

C. DID THE COURT ERR BY REFUSING A DEFENSE REQUEST FOR A MISTRIAL FOLLOWING OPENING STATEMENTS AFTER REVERSAL OF A PRE-TRIAL RULING THAT NO BREATHALYZER EVIDENCE WOULD BE ADMISSIBLE?

D. WAS THE EVIDENCE PRESENTED SUFFICIENT TO SUSTAIN A VERDICT AS A MATTER OF LAW; AND WAS THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE.

Appellant's Brief at 3.

For the purposes of clarity, we begin by addressing appellant's third issue raised in this appeal. Appellant's third issue concerns whether the trial court erred in failing to grant appellant's motion for mistrial where the court sua sponte reversed its ruling granting appellant's motion in limine to exclude the breathalyzer results after appellant's counsel had relied upon the earlier ruling when commenting upon the evidence to be presented in his opening statement to the jury.

II. STANDARD OF REVIEW

At the outset, we note that an appellate court's review of the grant or denial of a new trial is limited to determining whether the trial court abused its discretion or committed an error of law which controlled the outcome of the case. Commonwealth v. Morris, 513 Pa. 169, 175, 519 A.2d 374, 376 (1986). "The general conduct of a trial is committed to the broad discretion of the trial judge." Commonwealth v. Thomas, 346 Pa.Super. 11, 20, 498 A.2d 1345, 1349 (1985) (citations omitted). A reviewing court Courts are hesitant "to grant a motion for a mistrial when the conduct complained of was not the product of the court, counsel, or the parties." Tribblett, supra 242 Pa.Super. at 169, 363 A.2d at 1214, citing Commonwealth v. Gwyn, 441 Pa. 546, 272 A.2d 891 (1971); Commonwealth v. Garrison, 443 Pa. 220, 279 A.2d 750 (1971). "However, a new criminal trial is required when a judge's remark is prejudicial; that is, when it is of such nature or substance or delivered in such a manner that it may reasonably be said to have deprived defendant of a fair and impartial trial." Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985). "The presence or occurrence of certain errors at trial, including ... bias on the part of the judge ... requires automatic reversal." Commonwealth v. Cherry, 474 Pa. 295, 307, 378 A.2d 800, 806 (1977), citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705, 710 (1967). Additionally, "evidentiary rulings are committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion." Commonwealth v. Apollo ...