This appeal implicates the burgeoning doctrine of relating back blood alcohol content (BAC) evidence of a defendant in accordance with our Supreme Court’s companion decisions in
Commonwealth v. Jarman,
The facts giving rise to the instant appeal are as follows: In the early morning hours of December 23, 1989, the temperature was approximately four (4) degrees below zero Fahrenheit. At approximately 5:20 a.m., the Penn Township police received a call through 911 that there was a vehicle on the berm of Pleasant Valley Road in Penn Township, with a man lying next to the vehicle. Penn Valley Police Officer Anthony *115 Pécora responded to the call and found appellant lying on the pavеment next to a pickup truck. The vehicle was running and the driver’s door was open. Officer Pécora picked up appellant from the roadway and smelled alcohol. Officer Pécora radioed for backup. When the backup arrived, the рolice officers placed appellant in a patrol car out of the inclement weather. Soon afterwards, appellant was transported to the police station where field sobriety tests were administered. Appellant fаiled two of the tests. Appellant was then transported to Monsour Hospital to have blood samples taken to ascertain his BAC. The test, taken approximately fifty minutes later, revealed appellant’s BAC to be 0.21%. Based on this evidence, the Cоmmonwealth filed the charges against appellant which serve as the basis for this appeal.
Appellant raises the following issues for our review:
1. Did the Commonwealth present sufficient evidence to establish that the defendant was operating a motor vehicle when his blood alcohol levеl was in excess of 0.10% in violation of 75 Pa.C.S.A. § 3731(a)(4);
2. Did the lower court error [sic] in permitting the introduction of [a] statement made by the defendant prior to establishing the corpus delicti of the crime?
We shall consider both of appellant’s issues.
First, appellant questions whether the Commonwealth presentеd sufficient evidence to establish a violation of Pennsylvania’s drunk driving statute given that the Commonwealth failed to present evidence relating appellant’s blood alcohol content back to the time he was driving. Our standard of review for claims raising the sufficiency of the evidence is well established. “[A]n appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the recоrd there is a sufficient basis to support the challenged conviction.”
Commonwealth v. Madison,
Appellant was found guilty of section 3731(a)(4) of the Pennsylvania Vehicle Code, which states:
(a) Offense defined.—A person shall not drive, operаte or be in actual physical control of the movement of any vehicle while:
‡ ‡ ‡ ‡ ‡ *
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
75 Pa.C.S.A. § 3731(a)(4) (emphasis added).
In
Commonwealth v. Jarman,
The Court in both Jarman and Modaffare reasoned that because of the specific and unique wording of the Pennsylvania drunk driving statute, which makes it an offense to drive, operate or be in physical control of an automobile while his BAC is 0.10% or greater, the Cоmmonwealth cannot meet its burden of proving that a defendant has been driving with a BAC level of 0.10% or greater solely by presenting evidence of the BAC. Rather, the Commonwealth must relate the BAC results back to the time the defendant operated the motor vеhicle. Evidence relating a defendant’s BAC to the time of driving is both a factor of the BAC levels themselves and the amount of time it takes the Commonwealth to take blood samples from the defendant. As the Court explained:
In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after the suspects have been stopped, there is a strong inference that blood alcohol levels were in the prohibited range while driving. Howеver, where ... the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the sample was not insignificant, the inference of guilt is weakened.
Jarman,
In
Commonwealth v. Osborne,
[T]he [S]upreme [C]ourt did not draw a bright numerical line between what it would consider to be a minimаl upward departure suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt. In a like vein, the [S]upreme [C]ourt failed to establish a temporal cut-off for the drawing of a suspect’s blood to indicate either a weak or strong inference of guilt. In our view, and in accordance with the dual standards set forth by our [S]upreme [C]ourt in Jarman and Modaffare, the stronger the inference of guilt, the less significant is the necessity for relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused’s BAC test result to the time of driving.
Id.
In the present case, appellant’s BAC was 0.21% and the test was taken apрroximately fifty minutes after appellant was found lying on the roadway. The Commonwealth presented no evidence attempting to relate the BAC results back to the time appellant was operating the automobile.
2
Nonetheless, we determine that such evidence, under the facts of this case, was not necessary to prove that appellant was operating a vehicle while his BAC was 0.10% or greater.
*119
First, we note that appellant’s BAC was over twice the legal limit. We deem this amount a substantial departure from the legal limit thereby creating a stronger inference that appellant’s BAC was over the legal limit at the time he was operating the car. The fifty minute lapse between the time the officers found appellant and the time whеn his blood sample was taken is long. Moreover, the evidence does not indicate the exact time when appellant operated his vehicle.
3
Nonetheless, in light of the frigid temperature of four degrees below zero Fahrenheit that night, appellant could not have been at the scene laying on the road for a substantial period of time. There was no evidence that he was suffering from any effects of cold weather
(ie.,
frostbite, hypothermia). Also, Officer Pécora stated that he wаs on duty from 11:00 p.m. the previous night until 7:00 a.m. that morning and patrolled the location of the incident. Pécora indicated that appellant’s truck was not parked on the roadway before he responded to the call at 5:20 a.m. Given the substantial deviation аppellant’s BAC was from the legal limit, we find that the Commonwealth sufficiently proved its case without adducing expert evidence relating back appellant’s BAC to the time of driving.
See Commonwealth v. Mukina,
Appellant next contends that the lower court erred in allowing evidence of appellant’s statements to be admitted
*120
prior to the Commonwealth establishing the
corpus delicti
of the crime of driving while intoxicated. This rule prohibits the introduction of statements made by a defendant before independent evidence establishing the crime is introduced.
Commonwealth v. DeLeon,
In the case sub judice, Officer Pécora testified that he found appellant lying on the side of the roadway next to his pickup truck. No one else was near the scene where appellant was found. Officer Pécora then testified that appellant smelled of alcohol and seemed highly intoxicated. This evidence, like that in DeLeon, is consistent with the fact that someone operated a motor vehicle while intoxicated. Only after this evidence was presented did the Commonwealth offer appellant’s statement that he had been drinking and driving. We can therefore afford appellant no relief on this claim.
Judgment of sentence affirmed.
Notes
. 75 Pa.C.S.A. § 3731(a)(4). Although appellant was alsо charged with one count of driving under the influence of alcohol pursuant to subsection (a)(1) of section 3731, the jury acquitted him of this count.
. Indeed, the Supreme Court’s pronouncements in Jarman and Modaffare were not handed down until almost one year after trial in this matter.
. Appellant testified at trial that he had his last drink at apрroximately 12:30 that morning and began to drive home. He stated that during his drive he became dizzy, pulled off the road and got out of the truck. Although appellant’s testimony is uncontradicted, the jury did not believe this evidence, as was its sole right to do. Commonwealth v. Griscavage, supra. If one were to give сredence to appellant's claim that he was lying on the berm of the road for approximately four and one half hours, it must be assumed that given his excessive BAC and the severe cold weather experienced that night, he would have been transported away in a hearse, rather than in a patrol car.