*1
Argued 1978. Decided Oct. 1978. *2 Gilchrest, Sharon, appellant. for Charles F. Hermitage, Douds, Attorney, District
David B. Assistant Commonwealth, appellee. HOFFMAN, CER- JACOBS, Judge, and President Before HESTER, VOORT, and CONE, PRICE, VAN der SPAETH JJ.
HESTER, Judge: of the of sentence judgment from the appeal
This is an Mercer County Division of Pleas, Criminal Court Common and facts procedural history 1977. at No. Criminal follows: on are as appeal relevant to the issues 23,1976 charged and was arrested November the influence while under driving with the offense intoxicating beverages. The officer testified he was travel- ing directly behind appellant for miles on Interstate 79 IV2 him observed run off the right side of the highway three or four feet occasions, on three in addition to crossing centerline feet, two all at an approximate speed of 24—28 miles per hour. After the vehicle had been stopped by the officer, appellant handed the officer a card mem- showing bership in the Shenango Valley Chamber of in- Commerce stead of his license. He then handed his entire wallet to the officer which was refused. The license was then removed by appellant, and in getting car, of the several cards and keys spilled onto the ground. The officer testified that appellant was weaving back and forth and bracing himself with his hands on the roadway picked as he up the cards. When he was given performance tests, appellant was unable to stand on one closed, foot with his eyes and could not touch *3 the of his tip nose with his eyes shut. The officer noticed a staggering gait as appellant walked to the car. police Once car, appellant refused to submit to a chemical test of his station, breath. At the police appellant again refused the test. breathalyzer The officer testified that during the time appellant was at the police station taxi, for a waiting he had a staggering gait. He did not have a speech slurred and the officer didn’t notice whether appellant’s eyes were red or bloodshot. The officer informed appellant that he could wait in the front section of the building, but instead he staggered office, into another at which time he was told he was in the area wrong and to and sit in go the lobby area.
Appellant testified that he was an attorney Allegheny Ludlum Industries. He' stated that he had three drinks of vodka and water the afternoon of this occurrence between 1:00 P.M. and 2:30 P.M. as he packed his clothes in his hotel room in Pittsburgh for the trip home. He left Pittsburgh 5:45 P.M. approximately He further testified that he go did off the road several times and missed the exit proper be- cause he was to attempting briefcase, unlock his prop up lid, open therein, a box of cigars and then unwrap and light one of the cigars. the Judges’ charge to two sections of
Appellant objected alco- people pass The was instructed that specifically. hol of that one test the use systems may their occurred is whether the determining consumption when same, gets during or worse person stays improves, time he is under observation. police credibility was further instructed as to as fol- lows:
“Now, would not be interested say to defendant your in the outcome of the case would be to attack intelli- course, I’m gence, police he is interested. certain that officer is interested also. You look to see whether or not testimony; their interest in colored their and in any way police their demeanor. Is this offi- judging you judge cer, Given, Trooper police of a officer that is type attempting get prosecution just winning for the sake a case? Is he untrue because he wants to win? saying things him, What difference does it superiors, make to his or his officers, remuneration, fellow it may whatever be.” Appellant was guilty by found and filed jury, timely post trial motions. The appeal followed. argues first that the trial court erred in
permitting
introduction of evidence of his refusal to
submit to a breathalyzer test as substantive evidence of his
guilt of
while
driving
intoxicated. The trial court admitted
this
624.1(h)
evidence
to 75
pursuant
"implied
P.S.
con
sent" section of the Motor Vehicle Code which
states
clearly
that such
evidence
admissible. The
constitutionality
*4
this provision has been upheld by this court and further
Robinson,
discussion in unnecessary. Commonwealth v.
229
131,
Pa.Super.
(1974).
therefore,
Appellant argues peo- next instruction that ple pass alcohol out of their was where systems improper issue, there was no evidence on the record as to that and the 92 notice thereof. A review of judicial
court could not take appellant’s that the officer testified that condi- record shows the time he was in during custody. tion remained the same Further, the trial court mentioned as appellant’s testimony approximately had three drinks sometime between having work, thereafter, that he returned to 1:00 and 2:30 P.M. and County for home in Mercer only Pittsburgh to leave Therefore, consump- P.M. the time of approximately 5:45 an to be determined in determin- by tion was issue or innocence. ing guilt rate any particular
The trial court did not mention
rather
system,
merely
that alcohol
but
passes through
Otherwise, anyone
well known fact.
stated an obvious and
would forever remain
that condi
who became intoxicated
that
alcohol out of their
people pass
tion.
the fact
Since
it was
knowledge,
and general
bodies is a matter of common
judicial
for the trial
to take
notice of it in the
proper
court
Milligan,
Commonwealth v.
172
to the
Pa.Su
charge
jury.
Harris,
v.
Commonwealth
607,
351
per.
(1953);
Reading charge as whole evidence, find nothing reviewed the and we judge properly charge. argumentative prejudicial is affirmed. Accordingly, Judgment Sentence *5 SPAETH, J., files dissenting a opinion.
HOFFMAN, J., did not participate consideration decision of this case.
SPAETH, Judge, dissenting: I believe we should the judgment vacate of sentence and remand for a new trial.
In charging jury, the trial judge stated: “Credibility the thing that the jury is best at and the reason that system works so well. Credibility is who you believe or what portion of what you hear you believe. In determining credibility, you can consider the apparent candor and frank- ness or fairness of it; the witnesses or lack of their bias or prejudice in case, if any; means that they have of saw; observing what they say they their corroboration, if any, other witnesses. You take into account all of the surrounding circumstances and determine which witness or witnesses you wish to Now, believe. say defend- ant would not be interested in the outcome of this case would be to attack your intelligence, course, he is inter- ested. I’m certain that the police officer is interested also. You look to see whether or not the interest in any way colored their testimony; that, and in judging you judge their demeanor. Is this police officer, Gwin, Trooper type a police officer that is attempting to get prosecu- tion just for the sake of winning the case? Is he saying things untrue because he wants to win? What difference him; docs it make to to his superiors, or his officers, fellow remuneration, or whatever it may be? You judge the char- acter or the people who come before you in determining truthfulness. I’m certain that there are certain people that you know that could tell you anything and you would disbelieve it simply because don’t you feel that man has a character of There honesty. are other people who will say things you will you be much more prone to accept what they say because of their demeanor and the way they tell you what they are saying. In the last however, analysis, you use your own good common sense and judgment.” (Emphasis added.) Minimum Project the ABA Standards
Section 4.7 of
Justice,
Relating
by Jury (Ap-
to Trial
Standards
Criminal
*6
Draft, 1968) provides:
proved
it
instructs
the
“(a)
court,
jury, may
The
the time
evidence,
on the
the
provided
summarize and comment
the exclu-
instructed that
it is
clearly
unequivocally
is
and
facts,
weight
that
it is to determine the
of
judge
sive
of the
witnesses,
it is
credibility
the
and that
evidence and
of the court.
not bound
the comments
in
permitted
and comment
subsection
“(b)
summary
The
.
(a)
governed by
following principles:
is
on mat
“(iv)
state the law and comment
may
The court
witness,
credibility
any
ters in evidence
on
bearing
testimo
an
that certain
express
opinion
but
not
may
directly
of belief."
added.)
ny
worthy
unworthy
is
or
(Emphasis
per
"The standard
4.7(b)(iv)
The
states:
Commentary
§
jury appropriate legal principles
mits the
to the
judge
put
evidence,
relevant matters in
point
and to
credibility
of a witness or between
testimony
such as conflicts
But,
not `intimate
testimony
judge may
of witnesses.
unworthy
that certain
of belief.'
testimony
worthy
Bookie,
United
(7th
1956).”
remanded for