Com. v. Slingerland

Decision Date15 December 1986
Citation518 A.2d 266,358 Pa.Super. 531
PartiesCOMMONWEALTH of Pennsylvania v. Brian SLINGERLAND, Appellant.
CourtPennsylvania Superior Court

Robert J. Magee, Allentown, for appellant.

Henry Perkin, Asst. Dist. Atty., Allentown, for Com.

Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.

WIEAND, Judge.

The principal issue in this appeal is whether the criminal offenses defined in 75 Pa.C.S. § 3731(a)(1) and 75 Pa.C.S. § 3731(a)(4) are "cognate" offenses for the purpose of applying Pa.R.Crim.P. 225 to the preparation of a criminal information.

At or about midnight on July 20, 1984, Brian Slingerland lost control of his motorcycle while operating it on Cetronia Road in South Whitehall Township, Lehigh County. When Tpr. Theodore Kohuth arrived at the scene of the accident, Slingerland had already been placed in an ambulance. Kohuth completed his investigation at the scene of the accident and then followed the ambulance to the Lehigh Valley Hospital Center. When he arrived shortly after 1:00 a.m. and observed Slingerland lying on a hospital gurney, he detected an odor of alcohol about Slingerland's person and observed that Slingerland was disoriented and glassy eyed. Kohuth was of the opinion that Slingerland was under the influence of alcohol; and, therefore, he requested that a blood sample be drawn. Pursuant to this request, blood was taken from Slingerland at 1:23 a.m. and, when tested, disclosed a blood alcohol content of .13%.

Kohuth filed a criminal complaint averring that Slingerland had operated a motor vehicle while under the influence of intoxicating liquor to an extent which rendered him incapable of safe driving, in violation of 75 Pa.C.S. § 3731(a)(1). 1 After a preliminary hearing had been held and the criminal proceedings had been returned to court, the District Attorney prepared and filed an information which alleged, in addition to a violation of 75 Pa.C.S. § 3731(a)(1), that Slingerland had operated a motor vehicle when the alcoholic content of his blood exceeded .10%, this being a violation of 75 Pa.C.S. § 3731(a)(4). Slingerland filed an omnibus pre-trial motion requesting, inter alia, that the added charge be quashed as being in violation of Pa.R.Crim.P. 225. This motion was denied. Subsequently, a jury found Slingerland not guilty of violating 75 Pa.C.S. § 3731(a)(1) but guilty of driving while his blood alcohol content exceeded .10% in violation of 75 Pa.C.S. § 3731(a)(4). Post-trial motions were denied, and Slingerland was sentenced to pay a fine of three hundred ($300) dollars and undergo imprisonment for not less than thirty (30) days nor more than six (6) months. Slingerland appealed.

He argues on appeal that the second count in the information, which charged him with violating Section 3731(a)(4), should have been quashed because it had not been included in the criminal complaint filed by the prosecuting state trooper. Pa.R.Crim.P. 225(b)(5) requires "a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint...." (Emphasis added). In Commonwealth v. Donaldson, 339 Pa.Super. 237, 239-240, 488 A.2d 639, 640-641 (1985), this Court said that Rule 225(b)(5)

does not require that the crime charged in the Information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980); Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979); Commonwealth v. Epps, 260 Pa.Super. 57, 393 A.2d 1010 (1978).

In Wilkinson, supra, we wrote:

As stated in Commonwealth v. Cortes, 182 Pa.Super. 602, 605, 128 A.2d 155, 156 (1956), "The police and other law enforcement officers and justices of the peace who formulate the complaints are not expected to be learned in the law." If the complaint puts the defendant on notice of the substance of the crime for which he is being charged, it is sufficient. 278 Pa.Super. at 498 n. 6, 420 A.2d at 651 n. 6.

The two counts of the formal information prepared by the District Attorney in this case charged appellant with violating different subsections of the same section of the Vehicle Code. Section 3731(a) of the Vehicle Code (75 Pa.C.S. § 3731(a)), provides as follows:

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

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

* * *

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

These offenses, we have held, are separate and distinct. See: Commonwealth v. Fry, 340 Pa.Super. 445, 490 A.2d 862 (1985). It remains to be determined, however, whether the two offenses are "cognate."

The word "cognate" is defined in Webster's Third New International Dictionary (1965) as "related, akin or similar esp. in having the same or common or similar nature, elements, qualities or origin...." Applying this common usage of the word, it would seem that the two subsections of 75 Pa.C.S. § 3731(a) define cognate offenses. Even though the elements of the offenses defined in subsections (a)(1) and (a)(4) are not identical, the offenses are similar in nature and spring from a common concern. The substantive nature of the offenses is clearly the same, namely the operation of a vehicle after alcohol has been consumed to a degree which renders the operator a hazard to others and to himself or herself. Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater is unfit to drive, see: Commonwealth v. Mikulan, 504 Pa. 244, 249-251, 470 A.2d 1339, 1341-1342 (1983); whereas subsection (a)(1) requires proof that the defendant was, in fact, incapable of safe driving because of an excessive consumption of alcohol. Both subsections, therefore, proscribe the same conduct: driving a motor vehicle while under the influence of alcohol. We conclude, therefore, that the criminal complaint charging Slingerland with driving while under the influence of alcohol to an extent which rendered him incapable of safe driving was sufficient to allow the District Attorney to include in the information the cognate offense of driving while the defendant's blood alcohol content exceeded 0.10%.

In a second argument, Slingerland contends that the Commonwealth's evidence was insufficient to show a violation of subsection (a)(4) because it failed to produce medical or other expert testimony which related his blood alcohol level of 0.13% at 1:23 a.m. to the hour of 12:00 a.m., when the accident occurred. A similar argument was made and rejected by this Court in Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986). There, the sole evidence of the defendant's blood alcohol level was the result of a breathalyzer test administered two hours and forty-five minutes after the defendant had operated a motor vehicle and showing an alcoholic content of 0.12%. In response to the same argument made by appellant in the instant case, the Court said:

[W]e conclude that the Commonwealth is not required to offer evidence relating a blood alcohol test result back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result will not render the test result insufficient evidence upon which the fact-finder may convict a defendant of violating subsection 3731(a)(4) of the Vehicle Code.

Id. at ----, 509 A.2d at 1266 (emphasis in original). Although Slingerland's blood alcohol content was determined as a result of a blood test rather than by a breathalyzer test, this distinction is of no consequence. It is more significant that Slingerland had been drinking over the course of the entire evening and had not consumed a large quantity of alcohol immediately before operating his motorcycle. Moreover, Slingerland's testimony contained an admission that while operating his motorcycle he had been able to feel the effect of the alcohol which he had consumed. The result of the blood test, when considered in the light of the foregoing evidence, was sufficient to permit the jury to find that appellant had operated his motorcycle in violation of 75 Pa.C.S. § 3731(a)(4).

The judgment of sentence is affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge, dissenting.

I dissent. The evidence was insufficient to convict the defendant of operating his motorcycle with a blood-alcohol content of 0.10% or greater in violation of 75 Pa.C.S. § 3731(a)(4). The Commonwealth offered no evidence to demonstrate how the defendant's recorded blood-alcohol level of 0.13% an hour and a half after his accident translated into a level of 0.10% or greater at the time he was driving. Without expert testimony relating the 0.13 figure back to the time of vehicle operation, the jury did not have sufficient factual information to determine that the defendant's blood-alcohol level was over the statutory limit when he drove. Accordingly, I would reverse the conviction and discharge the defendant.

The jury acquitted the defendant of violating § 3731(a)(1) of the Vehicle Code (driving under the influence of alcohol to a degree which renders the person incapable of safe driving), and convicted him of violating § 3731(a)(4) (driving while the amount of alcohol by weight in the blood of the person is 0.10% or greater). Therefore, the verdict necessarily depended on a finding that the percentage of alcohol in the defendant's blood was 0.10 or greater while he was driving. The only direct evidence of the defendant's blood-alcohol percentage was the results of a test performed on a blood sample taken about an hour and a half after the defendant had ceased to drive; they showed his blood-alcohol level then to be 0.13%.

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