*1 Pennsylvania, Appellee, COMMONWEALTH LOEPER, Appellant. A. Todd Pennsylvania. Supreme Argued Dec. 23, 1995.
Decided June *3 Hracho, Loeper. for T.A. Reading, J. Lawrence Johnson, Miles, Baldwin, M. Theresa Kimberly A. Mark C. Reading, for Com. ZAPPALA, FLAHERTY, NIX, C.J., and
Before: MONTEMURO, CAPPY, PAPADAKOS, JJ. CASTILLE and THE COURT OPINION OF CAPPY, Justice. before this Court is whether question
The
presented
determining
that the Commonwealth
Court erred
conviction of
support Appellant’s
sufficient evidence
to 75
Pa.C.S.
influence
alcohol
under
3731(a)(4)
of a
vehicle while the amount
motor
(operation
person
of the
is 0.10% or
weight in the blood
alcohol
record we conclude that
greater). Upon review of the
possessed
Appellant
was insufficient
establish
blood alcohol
level
.10% or greater
at
the time he
Therefore,
operated motor vehicle.
we reverse the decision
Court.
In reviewing
challenge
sufficiency
of the evidence
whether,
we must determine
viewing all the evidence admitted
trial, together
all
with
reasonable
inferences
be drawn
therefrom,
in the light most favorable to the Commonwealth
winner,
as verdict
jury
could have found that each element
of the charged offense was proved beyond a reasonable doubt.
(1989).
Hughes, 521 Pa.
On September 1990 a police officer was engaged an unrelated traffic stop portion when motor police vehicle struck the officer as Appellant passed police police officer. The assistance, officer radioed for commenced pursuit, and subsequently stopped Appellant. At this time Appellant’s speech slurred, eyes his were bloodshot and watery, and he emitted odor of Appellant alcohol. refused sobriety field tests and demanded blood test. He was immediately (“BAC”) A arrested. blood alcohol content test performed at hospital a local approximately two hours later provided a BAC of Appellant .141%. was subsequently charged conduct,2 driving,1 reckless disorderly and two counts of driving under the influence of alcohol.3 The charge of disorderly conduct and one count of driving under (75 3731(a)(1)) influence were subsequent- ly dismissed at Appellant’s preliminary A hearing. jury trial 13, 1991, commenced on November and Appellant was found *4 guilty of driving under the influence of to 75 3731(a)(4). §
On appeal Court, to the Superior Appellant argued that the evidence presented was insufficient to support his conviction because it failed to establish that had operated he his vehicle while a possessing or greater BAC .10% accordance Jarman, this Court’s decisions Commonwealth v. 529 Pa. § 1. 75 Pa.C.S. 3714. 5503(a)(4).
2. 18 Pa.C.S. 3731(a)(1), 3731(a)(4). §§
3. 75 Pa.C.S.
(1992)
Modaffare,
and
Pa. judg- this Court reversed Modaffare, In Jarman driving of drunk convictions arising out of sentence ments 3731(a)(4), because the BAC pursuant to 75 Pa.C.S. sufficiently establish did not the Commonwealth by introduced limits at permissible exceeded of the defendants that the BAC reached driving. were We the time the defendants 3731(a)(4)is Section the offense defined conclusion because content is .10% one’s blood alcohol a while to drive vehicle cases could have testing those greater, BAC delay than significantly higher that were BAC results reflected operating their were while defendants possessed those words, BAC could In other the defendants’ motor vehicles. they were at the time the .10% threshold have been below above the .10% threshold simply and could have risen stopped into absorbed the defendants’ being of alcohol result to BAC delay prior testing.4 during blood BAC driving lapse time between Based narrowly exceeded the .10% the BAC test results that testing; BAC threshold; of error associated with margin ten percent testimony provided by the Common- testing; expert and the could have been below BAC of the defendants wealth that the jury was they driving, we concluded that the .10% while were speculation in unbridled as to whether permitted engage .10% at the were or above the BAC the defendants went on to operation. majority critical time The thereafter that an accused’s BAC would be recognize strong inference he range possesses in the while where prohibited oc- testing and where BAC above .10% significantly BAC Jarman, performed approximately one hour after the testing In BAC addition, In a BAC of stopped revealed .104%. defendant hour 4 to 5 beers over two defendant testified that he consumed expert driving, period immediately prior to and the Commonwealth’s peak approximately 60 to 90 BAC would testified that the defendant’s drinking. Modaffare, In BAC defendant minutes after ceased fifty after the defen- performed approximately one hour and minutes addition, Modaffare did stopped revealed a BAC .108%. dant was expert testify the Commonwealth’s testified at his trial and drinking peaks roughly ceases. generally one hour after *5 398
curred soon after terminates. it did not specifically define what blood alcohol level is significantly above or a off temporal .10% cut for the lapse time between driving and testing. BAC sub judice,
In the
matter
correctly
Court
Jarman and
interpreted our
in
decisions
through
Modaffare
Osborne,
Commonwealth v.
its reliance on
124,
414 Pa.Super.
denied,
(1992),
allocatur
In our and accordance with the dual standards set by our supreme court Modaffare, Jarman stronger the inference of guilt, the significant less is the necessity for evidence of back. relating Conversely, weaker the of guilt, inference the more vital is the necessity relating for evidence of back an accused’s BAC test result to the time of driving.
Id.
Based upon application factors, of these the Superior Court herein concluded that the trial court had erred in failing to properly apply Modaffare, Jarman and that Appel lant’s BAC test results of .141% obtained after a two hour delay not give did rise to a sufficiently strong inference that Appellant possessed BAC of .10% at the time he drove. We agree with the Court that because Appellant’s BAC did represent substantial from departure permissible limit, and his may BAC have been below .10% at the time he was stopped and risen above this limit during the substantial delay prior to testing, of guilt inference was too weak to support Appellant’s conviction absence relating his test results back to of driving. the time
Nevertheless, the Superior then went on to determine there existed additional evidence from which jury Appellant’s could infer that BAC was excess of .10% at the time when he was stopped, BAC did not rise between the time he stopped and the time the BAC words, test was performed. In other the Superior Court determined that other fulfill evidence existed which would *6 This Jarman of and requirements back” “relation Modaffare. officers testimony police of two of the evidence consisted upon being in chief that case during the Commonwealth’s as which served speech, his slurred stopped Appellant expert on cross- own opinion Appellant’s of basis for an to begin not exhibit visible most do people examination that approximate- of achieve a BAC they until signs of intoxication that basis, determined ly .15%.5 On this Court of .10% or a BAC Appellant possessed that jury’s finding solely based his motor vehicle was not greater operating while speculation” as in Jarman on “unbridled Modaffare. that the us, Appellant contends Before the existence of this additional determining erred in that results Appellant’s BAC test back sufficiently related was he because such evidence driving, to the time when was irrelevant, thus, to BAC test remedy could not serve under Jarman results that were found be insufficient agree. We Modaffare. chief, Specifically, case in in an effort to rebut the Commonwealth’s physical consumption Appellant his size and of alcohol testified as to addition, evening question. he introduced the and food on the In testimony highly it was expeit pharmacologist/toxicologist an that of probable However, Appellant’s was below at the relevant time. BAC .10% was able to solicit on cross-examination the Commonwealth opinion expert people Appellant’s that most do not slur their an from signs they speech begin of until achieve to exhibit visible intoxication opinion inquiry approximately This followed a detailed a BAC of .15%. concerning expert’s comprehensive experience with BAC light experience in of the various factors that and the results of that Thereafter, when, peak. point, person's will govern and at what following exchange occurred: Q Now, .10, you your level of do if someone has blood alcohol —in experience, people you or not those have slurred have noted whether system? speech of that level in their blood result Probably speech. A slurred Q why And would that be? generally begin visible people A don't to demonstrate Because most approximately signs they until achieve BAC .15%. intoxication Now, experience an individual’s to—or that varies somewhat with consumption beverage. familiarity In other with the with their words, probably slurring speech at a start naive drinker would than, say, lower level would alcoholic. pp. N.T. 102-103. of driving
The offense under the influence alcohol or controlled substance is set forth 75at 3731.6 Based provision, Appellant in charging with the unlawful operation of a motor vehicle while under the influence of alcohol, the Commonwealth authorized by Legislature was proceed on either or both of two theories. It allege could Appellant was degree under influence alcohol to a which him incapable rendered pursuant safe (a)(1). subsection It also could allege that the amount of by weight Appellant’s or greater blood was .10% (a)(4). fact, Appellant initially charged violating provisions. both of these hearing preliminary charge a violation alleging *7 (a)(1) Therefore, of subsection was dismissed. the Common proceeded only wealth to trial charge on the alleging viola (a)(4), tion of subsection which limited inquiry to whether Appellant a motor operated vehicle while the amount of alco hol in by weight his blood greater. was .10% or 75 Pa.C.S. 3731(a)(4). §
Appellant
contends
the manner in which the Common-
(a)(4)
may prove
wealth
a violation of subsection
by
is limited
the nature of
inquiry
to scientific
since it is the
in
only manner which a BAC of
greater
.10% or
Thus,
may be
if
established.
scientific BAC testing
only
is the
may
evidence that
to support
used
a conviction pursuant
(a)(4),
subsection
insufficient,
then
such
where
evidence is
6. At the
time
conviction 75 Pa.C.S.
3731 in relevant
part provided:
Driving
under influence of alcohol or controlled substance
(a)
drive,
person
operate
Offense defined.—A
shall not
beor
in actual
physical
any
control
the movement of
vehicle:
(1) while under the
person
influence of alcohol which
renders
incapable
driving;
of safe
(2)
substance,
any
while under the influence of
controlled
as de-
(P.L. 233,
64),
April
in
fined
the act of
No.
known as The
Substance,
Act,
Drug,
degree
Controlled
Device and Cosmetic
ato
person incapable
driving;
which renders the
of safe
(3) while
any
under the combined
influence
alcohol and
con-
degree
trolled substance to a
person incapable
which renders the
driving;
safe
or
(4)
by weight
while the amount of alcohol
in the
blood of
person
greater____
0.10%
(a)(4)
upheld
cannot be
conviction
accused manifested
evidence that an
based
additional
proposition
of this
support
of intoxication.
symptoms
in
cites to the decision
Appellant
Kemble,
521,
Id. at
403 it that an accused may prove in the manner in which wealth degree of to a under the influence alcohol operated a vehicle However, driving. him of incapable which rendered safe by adding 3731 Legislature amended Section when (a)(4), evidence, BAC test it form of defined one subsection conclusively which would establish greater, of .10% or results of the influence driving of the offense under element is, the influence alcohol. That an accused is under incapable him of safe as degree to a that renders definition, is This greater. of law if his BAC .10% matter that the Common- very requires its nature and existence by BAC test satisfy solely through competent burden wealth its to subsection pursuant to conviction support results order (a)(4). by prosecution, of such In the absence (a)(1). If it necessity, to subsection becomes one (a)(4) not, meaningless be rendered subsection would does statutory con- principle well violation of the established construed, if every possible, statute shall be struction that 1921(a). its give provisions. effect to all where, the matter Accordingly, we hold violating defending charge is judice, sub an accused not (a)(1) beyond evidence scientific irrelevant, BAC test results prejudicial. Appellant’s only but a violation of subsection alone insufficient establish were (a)(4), could have impairment no abundance Rather, shortcoming. only such could serve remedied already forced Appellant by swaying jury, prejudiced have results, to insufficiency of the BAC test speculation by into greater at the a BAC of .10% or Appellant possessed find that in violation of subsection operated time he motor vehicle (a)(4).7 reaching we note that the evidence of In this decision purpose of impairment for the limited would be relevant and admissible provided by Appellant's expert. such impeaching opinion prima its utilized the Commonwealth to establish evidence cannot be case. facie addition, Yarger, in Commonwealth recently 538 Pa. (1994), we modified Jarman and held that A.2d Modaffare present expert required evidence of “relation is not
404 reversed, of
The decision the Court is and the judgment of imposed sentence the of by Court Common Pleas County, Division, of Berks Criminal is vacated. PAPADAKOS, J., not participate did in the decision of this case.
ZAPPALA, J., in concurs the result. J.,
CASTILLE, a dissenting files opinion. MONTEMURO, J., sitting by is designation. CASTILLE, Justice, dissenting.
The majority holds that circumstantial is evidence not rele- (BAC) vant to establish blood alcohol in prosecution content for driving under the of influence violation 75 of 3731(a)(4). § Pa.C.S. Because I that neither believe the stat- ute nor the prohibits case law the of use circumstantial in relating evidence appellant’s back BAC to of the time I driving, respectfully must dissent.
It is well established that the
prove any
Commonwealth can
or all elements of an
through
offense
circumstantial evidence.
Zimmick,
9,
548, 555,
Pa.
539
n.
(1995)
1220-21, n. 9
(citing Commonwealth v. Hardcas-
tle,
(1988)).
236, 250,
Pa.
519
A.2d
1107-08
Under
1547(c),
§
75 Pa.C.S.
BAC can be
through
established
the
Now,
prima
back” in order
to establish
case.
once an accused
facie
presents expert
testimony
prima
in order to rebut the
facie
may
then
present
the Commonwealth
expert
either
own
its
order to
testimony
refute this
expert
cross-examine the
for the accused
addition,
attempt to
expert opinion.
response
his
discredit
to our
Modaffare,
decisions in
Legislature
Jarman and
amended 75 Pa.C.S.
by
(a)(5),
§
adding
potential
which
eliminates
need
for the Commonwealth to
test
opera-
relate BAC
results to the time of
performed
tion of motor vehicle
if BAC
within three hours
drove, operated
after the
physical
accused
or was in actual
control
a of
Thus,
(a)(5),
Yarger
motor vehicle.
Appel-
and subsection
lant’s BAC test results alone would have been sufficient to sustain his
(a)(5)
Yarger
conviction.
as neither
nor subsection
were the
law
at the time of
specifically
trial and
not
were
made
retroactive,
compelled
we are
reverse the decision
judgment
imposed
Court and
vacate
of sentence
County,
Common Pleas of Berks
Criminal Division.
However, nothing in
either
testing.
of chemical
results
3731(a)(4)
proof
restricts
or in 75
section
specifically
contrary,
legislature
to chemical tests. To the
(c)
construed
“shall
be
provided further that subsection
competent
other
any
limiting the introduction
not the defendant
of whether or
bearing upon
question
75 Pa.C.S.
the influence
alcohol.”
driving under
1547(f).
cannot be
holding
that circumstantial evidence
By
driving, the
to the time of
to establish BAC related back
used
*11
of the statute.
nullifies this section
majority
Jarman, 529 Pa.
Furthermore,
v.
neither Commonwealth
(1992),
Modaffare,
92,
nor
tions. supra, 529 Pa. at at A.2d Modaffare, 106-07, 529 Pa. at supra, at present
The is distinguishable case from both Jarman and Here, .141%, appellant’s BAC than was more 40% Modaffare. legal Furthermore, above the limit.1 appellant’s own expert opinion, to form present- able based the evidence trial, .10%, ed at appellant’s greater was in fact than probably greater, driving. .15% the time of This appears precisely be the sort of missing Modaffare, Jarman which would have rehabilitated the guilt inference weakened a borderline BAC and the delay testing.
By excluding the use of circumstantial in relating driving, back BAC the time of majority is requiring that prove just the Commonwealth its case not beyond reason- doubt, able but aby certainty. mathematical Given that absorption rates individual, differ result that, holding as Mr. Justice Cappy stated his dissent Jarman, Every time is a there case which the test results are *12 .10 percent between and .15 (approximately), and the test performed was not within minutes of the actual driving, the be prove will unable to its case. This would defeat the vital purpose and intent of the statute and would operate as a de evisceration of the .10 percent blood facto alcohol limitation the statute.
529 Pa. at
J.,