Com. v. Phillips

• Decision Date: 29 October 1997
• Citation: 700 A.2d 1281
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Peter A. PHILLIPS, Appellee.
• Court: Pennsylvania Superior Court

Page 1281

700 A.2d 1281

COMMONWEALTH of Pennsylvania, Appellant, v. Peter A. PHILLIPS, Appellee.

Superior Court of Pennsylvania.

Submitted May 12, 1997.

Filed Aug. 19, 1997.

Reargument Denied Oct. 29, 1997.

Christopher M. McElynn, Assistant District Attorney, Erie, for Commonwealth, appellant.

James A. Pitonyak, Erie, for appellee.

Before KELLY, J., CERCONE, President Judge Emeritus, and OLSZEWSKI, J.

OLSZEWSKI, Judge.

This case calls upon us to explain the current status of the law concerning the admittance of blood alcohol content (BAC) test results and evidence of impairment in a trial for Driving Under the Influence of Alcohol (DUI) under 75 Pa.C.S.A. §§ 3731(a)(1), (a)(4).

The record reveals the following facts: At 2:45 A.M. on June 6, 1995, appellant Peter A. Phillips was driving a black Jeep when he traveled through a red light at the intersection of West 26th Street and Powell Avenue in Millcreek Township, Erie County. Consequently, Phillips collided with an automobile driven by Kale Schwartz. After Phillips and Schwartz exchanged driver's information, Schwartz watched as Phillips drove his car from the accident scene and parked in the driveway of a house in the 3900 block of West 26th Street. Phillips did not live at the house. Subsequently, Schwartz and his father, Richard, contacted the authorities and accompanied Patrolman Richard Skonieczka, of the Millcreek Police Department, to the accident scene. ¹ The trio arrived at the scene at approximately 5:00 A.M. and Schwartz identified Phillips's vehicle still parked in the driveway with Phillips passed out behind the wheel.

The patrolman roused Phillips and immediately detected that appellant was emitting a strong order of alcohol. The officer also observed that Phillips had glassy, bloodshot eyes and could not maintain his balance. Based upon these observations, Patrolman Skonieczka administered the "one legged stand" and "heel to toe" field sobriety tests to appellant. Phillips failed both and was promptly placed under arrest for DUI. The arrest occurred at approximately 5:35 A.M. After being transported to the Millcreek Police Station for processing, Phillips was videotaped as he again failed the "one legged stand" test. He refused to retake the "heel to toe" test. At 6:22 and 6:24 A.M., Phillips was given breathalyzer tests for which he registered .148% and .146% BAC readings respectively.

On September 22, 1995, an information was filed charging Phillips with Driving Under the Influence of Alcohol pursuant to 75 Pa.C.S.A §§ 3731(a)(1),(a)(4) and (a)(5). ² After numerous continuances, Phillips was scheduled for trial on October 7, 1996. On the date of trial, however, Phillips filed a motion in limine seeking to exclude any evidence of his breath test results and any testimony concerning his behavior and/or physical appearances at the time of his arrest. Phillips argued, in part, that since his BAC did not represent a significant departure from .10% and a significant period of time elapsed between when he last drove and when he was tested, the Commonwealth was required to present expert testimony relating the test results back to the time he was driving before he could be convicted of DUI. Since the Commonwealth did not intend to produce any such relation back evidence, Phillips alleged that the BAC test results were irrelevant and overly prejudicial. The trial court granted the motion in limine the same day it was filed. ³ The instant appeal follows.

Our standard of review when the trial court has granted a motion in limine against the Commonwealth is as follows:

"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, 269 582 A.2d 336, 337 (1990), aff'd, 534 Pa. 51, 626 A.2d 514 (1993) ]. Our Court reviews the grant of such motion "by applying the [standard] of review appropriate to the particular evidentiary matter at issue." Id. We note that this Court may reverse rulings on the admissibility of evidence only if it is shown that the trial court abused its discretion. See Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). Further, if in reaching a conclusion the trial court overrides or misapplies the law, "discretion is then abused and it is the duty of the appellate court to correct the error." Commonwealth v. Bellini, 333 Pa.Super. 526, 532, 482 A.2d 997, 999 (1984), quoting Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 125 (1981).

Commonwealth v. Surina, 438 Pa.Super. 333, 337-38, 652 A.2d 400, 402 (1995).

Instantly, the trial court rationalized that "[t]he circumstances of this case illustrate the necessity of producing evidence relating back the BAC test result to the time when [Phillips] was driving to sustain the Commonwealth's burden of proving beyond a reasonable doubt that [Phillips] drove while the amount of alcohol by weight in his blood was .10% or greater." Opinion, 1/6/97 at 4. Consequently, "given the lack of any relation back evidence to establish [Phillips's] BAC at the time he operated his vehicle, [the trial court] granted the ... [m]otion in [l]imine." Id. We believe that the trial court misapplied the relevant law in certain respects and, accordingly, abused its discretion in ordering that the evidence be excluded from trial. Consequently, we reverse, in part, the order of October 7, 1995.

In certain respects, the trial court's analysis is accurate. The offense of DUI is set forth, in relevant part, as follows:

§ 3731. Driving under the influence of alcohol or controlled substance

(a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle:

(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving;

* * * *

(4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater; ...

75 Pa.C.S.A. § 3731(a).

In a recent line of cases, our Supreme Court has sought to clarify the sufficiency of evidence needed to convict a suspect of violating § 3731(a)(4). In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), our Supreme Court vacated judgments of sentence on the basis that 75 Pa.C.S.A. § 3731(a)(4) requires the relation back of a BAC test result to the time when the accused was driving. In so holding, the court explained that § 3731(a)(4) is "limited in its focus" as "[i]t makes one's blood alcohol content while driving the pivotal issue." Modaffare, supra at 104, 601 A.2d at 1235(emphasis original); Jarman, supra at 94-96, 601 A.2d at 1230 (emphasis original). The Court focused upon the testimony of the Commonwealth's experts who stated, in each case, that "a person's blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly one hour after the drinking has ceased, and that, thereafter, the level declines." Modaffare, supra at 105, 601 A.2d at 1235. See Jarman, supra at 96-98, 601 A.2d at 1231. The Court reasoned:

The legislature has provided that blood tests conducted after suspected drunk drivers have been stopped will be used as evidence of the suspects' blood alcohol contents while driving. See generally 75 Pa.C.S. § 1547 (chemical testing to determine amount of alcohol). In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been driving, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, where, as in the present case, the blood alcohol test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was significant, the inference is weakened.

Modaffare, supra at 105, 601 A.2d at 1235. See Jarman, supra at 94-97, 601 A.2d at 1230-31. ⁴ The Supreme Court concluded that, in cases where the inference is weak, the Commonwealth must present expert testimony relating the BAC test result back to the time at which the suspect was actually driving. Without this testimony, the suspect's BAC could have been below 0.10% when he/she was driving and could have simply increased above the 0.10% threshold because of alcohol being absorbed into the suspect's blood during the delay prior to testing. Consequently, the BAC test result alone would only enable the jury to "engage in unbridled speculation as to whether appellant's blood alcohol level was at or above 0.10% at the critical time." Jarman, supra at 97, 601 A.2d at 1231. See Modaffare, supra at 106-07, 601 A.2d at 1236.

Recently, the Supreme Court has expanded upon its decisions in Jarman and Modaffare. In Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994), Yarger's BAC test resulted in a reading of 0.18%. The Court found that, because the test result was "significantly above the 0.10% threshold" and the test had been conducted only forty minutes subsequent to his stop for speeding, there was "no reason to require the Commonwealth to present expert testimony" relating the BAC test result back to the time Mr. Yarger was driving. Id. at 334, 648 A.2d at 531. Accordingly, the Commonwealth had "made a prima facie case under 75 Pa.C.S.A. § 3731(a)(4)." Id.

The following year, the Court explained what had become obvious, i.e., that "the weaker the inference of guilt, the more vital is the necessity for evidence relating back an accused's BAC test result to the time of driving." Commonwealth v. Loeper, 541 Pa. 393, 398, 663 A.2d 669, 671 (1995)(quoting Commonwealth v. Osborne, 414 Pa.Super. 124, 128, 606 A.2d 529, 531, alloc. denied, 531 Pa. 660, 613 A.2d 1209 (1992)). More importantly, however, the Court also spoke as to whether the...