*1 Was the Board of Arbitrators’ determination that Daiello not commit “willful rationally did misconduct” from derived City bargaining agreement Easton’s collective with the State, County American Federation of Municipal Employ- ees, AFL-CIO, Local despite the fact that Daiello billed both the Easton City Coley Security Agency and the for a period of work time supposed working when he was to be solely for City Easton?
Shane Farron Supreme Pennsylvania. Court of
Argued Sept. 1998. Aug. Decided *3 Ceraso, Thomas for McCurdy. R. Shane Farron Bell, Indiana, Robert S. Com. FLAHERTY, C.J., ZAPPALA, CAPPY,
Before and CASTILLE, NIGRO, SAYLOR, NEWMAM and JJ.
OPINION SAYLOR, Justice. to appeal Appellant’s
We allowed consider whether convic- tions for to 3731(a)(1) of the Vehicle Code and homicide vehicle while under the influence are undermined the constitu- 3731(a)(5). infirmity tional of Section 20, 1995, Shortly midnight May Appellant, after on Shane in a 1978 Cadillac on Route 598 McCurdy, operating was County. Harry Garcia and Theron Township, Center Indiana McCurdy attempting As was passengers. were Smith road, vehicle, lost control of his negotiate a curve he collide with a tree. Smith causing roadway it to leave the trauma. resulting died from the Police Trooper Pennsylvania Allen Evans of the State When scene, McCurdy arrived at the accident he observed intoxication; strong he had a signs particular, exhibited him, difficulty walking, had swaying, odor of alcohol about was McCurdy Troop- somewhat dazed. admitted to appeared vehicle, operator Evans that he was the but because er McCurdy’s injuries, sobriety no field tests were adminis- to the Indiana for treat- McCurdy Hospital tered. was taken and, a.m., ment, blood in hospital personnel at 1:55 withdrew his A treating injuries. the course of test blood alcohol level of .288 percent.1 disclosed blood morning, Trooper hospital Later that Evans arrived at the interview, McCurdy. During McCurdy relat- to interview servings Evans that he had consumed four Trooper ed prior beer to the accident and that he had lost control of the negotiate a curve. As attempting Trooper Evans had been from was unaware that blood withdrawn test, McCurdy, he asked him to submit to a blood which McCurdy refused. police reconstruction of the accident revealed that
McCurdy speed his vehicle at a of at least 60 operating limit speed miles an hour a zone which the was 55 miles *4 hour, in negotiate gradual and that he failed to the turn per McCurdy’s An vehicle eliminat- roadway. the examination for the any ed mechanical cause accident. foregoing, McCurdy the was arrested and
Based influence to 75 charged driving pursuant with: under the produced performed was on and a result 1. The blood test blood serum .271, mathematically adjusted which was to reflect a whole blood of .233. result (4), (5);2 3731(a)(1), § and homicide Pa.C.S. influence, 3735; § homicide under the Pa.C.S.
driving vehicle, 3732; § involuntary manslaughter, and Pa.C.S. summary § a number of offenses. together Pa.C.S. with guilty trial was found of all McCurdy proceeded to a and Al- offenses, summary of two offenses. exception with the 3731(a)(4) a basis for though jury rejected the Section as the conviction, it specifically accepted (a)(1) (a)(5) supportive and as of the conviction. subsections Thereafter, McCurdy was sentenced to a term of incarceration years. to seven three one-half Superior McCurdy’s the Court treated conviction appeal,
On were, fact, if it in two for under the influence as 3731(a)(1) convictions, the other one (a)(5). to subsection Based the decision Barud, (1996), Commonwealth v. which this Court declared that subsection was void for overbreadth, vagueness and Court vacated what Superior it termed be the conviction. The Court affirmed the con judgment sentence other victions.
McCurdy claims that because his conviction for driving 3731(a)(5) reversed, under the influence under Section his conviction, McCurdy's provided 2. At the time of perti- Section 3731 part: nent § Driving the influence of alcohol or a controlled substance (a) drive, person operate Offense defined.—A shall not or be in physical any actual (1) control of movement of vehicle: degree while influence alcohol to a which renders person incapable driving; of safe (4) by weight while the' amount of alcohol blood of the
person greater; is or or 0.10% (5) by weight person if the amount of alcohol in the blood of the greater sample or at the time of a test of a 0.10% chemical of the breath, urine, person’s sample blood or which is: (i) drove, person operated obtained within three hours after or vehicle; physical was in control of the (ii) prevent collecting if the of the circumstances incident hours, sample within three obtained at a reasonable time additional drove, person operated physical after the or was in actual control of the vehicle. *5 for driving convictions the influence under Section 3731(a)(1) and homicide must Specifically, McCurdy
influence also be reversed. as- that the trial court improperly serts instructed evidence of his blood alcohol level could be in considered evaluating proof the Commonwealth’s 3731(a)(1), only when such evidence was admissible as proof 3731(a)(5). in McCurdy argument, under Section bases this that the Commonwealth’s failure to part, upon assumption relating offer evidence his blood alcohol level to the time of the the use of such evidence in precludes establishing accident of driving offense under the influence to subsection (a)(1). Furthermore, McCurdy maintains that it is unclear whether he would have been convicted of homicide vehicle charge while the absence 3731(a)(5). under Section to the admission of alcohol respect
With blood 3731(a)(1), level as evidence the violation of Section the trial the jury court instructed as follows: Now, that a sample there was evidence the defendant’s blood was taken and tested and showed that his blood percent. yourselves, alcohol level was .233 Ask is this an evidence credible? Are test results accurate mea- sure of the level of alcohol in the defendant’s bloodstream? Bear mind that it is the defendant’s alcohol at blood level driving, operating the time that he was or in control that is directly charges relevant under the first of driving two. under the influence. delay
If there was a between the time the defendant was driving, operating or in control and the time when the taken, sample yourselves, was then ask did the defendant’s change blood alcohol level the interim? How much or lower was his alcohol at higher blood level the time he Remember, or in control? driving, operating, you guilty charge cannot find the defendant of the blood alcohol you beyond unless determine a reasonable doubt that his percent greater blood alcohol level was 0.10 and that I just third counts that defined to the second and applies you. mind, find may be able to the defendant keep you
Also
driving charge
regardless
...
of the
of safe
guilty
*6
can
his blood alcohol level.
you
of whether
determine
not an element of that
blood alcohol level is
defendant’s
a
relevant
to the
charge.
only
piece
It
is
evidence
point
was under the influence to the
question of whether he
safely.
that
could not drive
he
drove,
in
you
operated
If
believe that the defendant
or was
his blood alcohol level was more
control of the vehicle when
of one
or 0.05
but
percent
percent,
than five one-hundredths
percent,
less than ten one-hundredths of one
or 0.1
percent
fact
you cannot infer from that
that the defendant either
degree
or
not
the influence of alcohol to a
was was
under
him
but
not
incapable
ignore
which made
of safe
do
defendant’s blood alcohol level
that fact. Consider the
along with all the other evidence relevant to his condition
you
when
decide whether
the defendant was under the
point
safely.
influence to the
that he could not drive
in
properly
These instructions
oriented the
evaluating
proof
the relevant
of a violation of Section
3731(a)(1). This Court has
that
explained
“[s]ubsection
general
specific
is a
no
restraint
provision
provides
it may prove
the Commonwealth
the manner which
that
alcohol to
operated
an accused
a vehicle under the influence of
driving.”
him
of safe
degree
incapable
which rendered
393, 402-03,
663
Loeper,
Commonwealth v.
541
A.2d
(1995). Thus,
blood alcohol
McCurdy’s
673-74
evidence
(a)(1),
with
along
content was admissible under subsection
evidence,
McCurdy
on the
of whether
competent
other
issue
degree
the influence of alcohol to a
that rendered
was under
1547(c);
§
see
driving.
him
of safe
See 75 Pa.C.S.
incapable
Gonzalez,
116, 126-27,
also
v.
519 Pa.
546 A.2d
Commonwealth
Moreover,
the fact
(1988)(plurality opinion).3
an
blood or breath
3. While a chemical
test result from
individual’s
required
support
sample
a conviction
to subsection
is not
less,
(a)(1),
percent
reveal a blood alcohol content of. 05
should a test
a.m.,
McCurdy’s blood was not withdrawn until 1:55
when the
a.m.,
approximately
accident occurred at
12:20
affects
generally
evidence,
weight of such
not its
admissibility.
Curran,
(Pa.Su
Commonwealth v.
700 A.2d
v.
Phillips,
Commonwealth
per.1997);
A.2d
denied,
opinion), appeal
(Pa.Super.1997)(plurality
Accordingly,
the trial court did not err
consider,
jurors
evidence,
instructing
along
with other
deciding
blood alcohol
level
whether he was
degree
under
the influence of alcohol to a
that rendered him
3731(a)(1).4
driving pursuant
safe
to Section
also maintains that
his
McCurdy
because
conviction
homicide
vehicle while driving
may
the influence
have
his
predicated
been
the influence
3731(a)(5),
conviction
he
entitled to a
however,
McCurdy’s argument,
new trial.
misapprehends
statutes
at issue. The offense of homicide
*7
driving
provides
part:
under the influence
relevant
operator may
charged
driving
not be
with the offense
under the
of
(a)(1)
(a)(4).
1547(d).
§
influence under subsections
or
See 75 Pa.C.S.
3731(a)(4),
Although McCurdy
acquitted
violating
4.
of
Section
admissible, despite
of
blood
evidence
his
alcohol level was also
delay
testing,
proof
operated
as
that he
a vehicle under the influence
subsection,
pursuant
of alcohol
to this
as well as
to subsection
(a)(1).
7,
7;
Loeper,
Yarger,
See
75 Pa.C.S. homicide by driving 1) under the requires: driving influence a conviction for under 2) the influence proof Section that this Lenhart, violation caused the death. See Commonwealth v. 189, 193, 553 A.2d element, regard With to the first an offense under may Section 3731 be proven by evidence that an individual operated a vehicle the influence of alcohol to a degree (subsection that him incapable (a)(1)), rendered driving safe or, while the by amount of alcohol in his weight blood was .10 (subsection (a)(4)). percent or greater At the time of McCur 3731(a)(5) offense, dy’s provided the offense could also be by established evidence that the amount of alcohol weight his was .10 percent blood or greater based a chemical test obtained within three hours after the operation of a In vehicle. amending driving under the influence and, statute adding, initially, later, subsection subsec (a)(5), tion the General Assembly simply allowed the Common wealth to establish an element of the offense of influence as a matter of law. Loeper, Pa. at Cf. at 674 (stating that “an is accused under the influ ence of alcohol to a degree that renders him safe driving as a if matter law his greater”). BAG .10% or manner, Understood in this
statute proscribes single harm to the Commonwealth—the *8 operation of a vehicle under the degree influence to a that renders an incapable individual of driving. safe The fact that the offense may be as established a matter of law if the produce Commonwealth can necessary the chemical does test not proof offense, constitute of a different merely repre but sents an alternative basis for finding culpability.5 5. We note that the Court has stated that the subsections of the driving under the influence statute are distinct offenses. See Common- 74 found that the Common
Here, jury specifically the influence under the driving of the offense wealth established (a)(1). that of established Having to subsection prov of alternate method fense, unconstitutionality of an the (a)(5) the not undermine did under subsection ing the offense when, as (a)(1), particularly of subsection proof supportive otherwise admissible noted, alcohol level was McCurdy’s blood (a)(1). Indeed, burden the Commonwealth’s subsection under (a)(1) is, more anything, if to subsection proof pursuant (a)(5). general under subsection than its burden difficult 7, 521, n. 605 Kemble, 527 Pa.Super. 413 v. ly Commonwealth provision the se 1240, (noting per n. that 7 A.2d (a)(4) of proof), burden the Commonwealth’s subsection eased (1992). denied, A.2d 340 appeal (a)(5) merely permit Thus, was the of subsection import the influence driving of a under finding to rest its jury the a con- bearing temporal blood alcohol evidence violation however, was Here, jury’s the verdict to the offense. nection Rather, it made solely such a connection. premised not (a)(1), to subsection independent an determination evidence, under the McCurdy that upon competent based him that rendered degree of alcohol to a influence first element the the finding preserves This driving. safe offense, for namely, the conviction (a)(5) aas influence, of subsection removal despite conviction.6 basis for the separate 531, 534, A.2d Pa.Super. Slingerland, 358 wealth v. (1986); Fry, Pa.Super. v. Commonwealth with the decisions are inconsistent To the extent that these case, holding we find them to be in error. in this charge court’s significance of the trial 6. We note the quite regard. charge was holding this Such our connection with according to the various theories particularly divided McCurdy. against invoked which the Commonwealth the influence theories, (a)(4) (a)(1) and separately detailing the elements of the After (a)(5) theory, explanation of gave particularized the trial court to this presumption confining description of the specifically its between emphasized the differences court thereafter context. trial (a)(4), (a)(1), example, in an admonishment proofs, blood alcohol it is defendant’s jurors to in mind that "[b]ear driving, operating control or in at the time that he was level *9 Finally, jury’s finding the influ driving under the 3731(a)(5) ence to Section not did taint essential its finding that drunk McCurdy’s driving caused the fatal acci purposes dent for 3735. The element causation marks, can be established through eyewitness testimony, skid Lenhart, testimony. accident reconstruction 520 Pa. at case, at In this the pre Commonwealth sented evidence that him intoxication rendered driving by of safe virtue of his speeding, his failure accident, to control his on highway, resulting vehicle the the his physical instability, and his admission of drinking. See 540, 546-47, Commonwealth v. Griscavage, 517 A.2d (1986); McGinnis, Commonwealth v. n. 526-27 515 A.2d Significantly, n. none proofs these was connected with the inquiry, and such provided evidence jury with a more than adequate basis concluding that McCurdy’s intoxication him prevented vehicle, from controlling his impaired his reflexes and judgment, directly causing the fatal accident.
Accordingly, the order of the Superior Court is affirmed. Justice ZAPPALA files a concurring opinion which joins. Justice NIGRO
ZAPPALA, Justice, concurring.
Because of majority’s discussion regarding whether the Commonwealth present needed to testimony relating Appel- lant’s BAC test result back to the time when actually he was I only concur in the In result.1 this Court’s most directly charges.” relevant under the first two The was thus
provided appropriate with an framework within which to make its (a)(1), (a)(4), separate concerning determinations theo- ries, completed special which are reflected verdict form. 1. The reason that the testimony important issue relation back is is many involving charges police because cases DUI have no direct evidence that a particular defendant had a blood alcohol at the content driving, time of rely and thus the Commonwealth must an inference to establish that defendant did have a certain BAC level at driving. the time he or she was That inference is drawn from a BAC test is administered after driving. the defendant ceased problem variety that exists is that a of factors affect when alcohol testimony we entered relation back involving
recent decision
due to the Com-
on a DUI conviction
judgment
an arrest of
relating BAC test
evidence
present
failure to
monwealth’s
driving.
had been
to the time that
defendant
results back
*10
Shade,
v.
Whether expert from the who BAC test result comes any tive value of BAC test result jury post-driving to the what explains at the time of to the defendant’s condition respect means with Otherwise, supra. danger- there is a driving. See footnote jurors’ incomplete based upon of a conviction possibility ous into provides a BAC test result insight of what understanding un- driving. time of Such condition at a defendant’s blood, person when that a-particular individual’s which is absorbed into plethora go into A of considerations of the alcohol. feels the effects person's post-driving BAC test is of a determining probative how a driving. considerations had been Those condition while he or she metabolism, alia, include, height, weight, they persons what inter drink, long ago, they last when consumed their had eaten and how many they particular within a time frame. drinks consumed how Schefter, Three Hours After Under the Influence of Alcohol Robert J. Pennsylva- Constitutionality Amendment to Driving: The Statute, (1996). Without Dick.L.Rev. 465-466 nia's DUI testimony probative value of a BAC test result expert explaining the dangerous particular case there is a the circumstances of a upon specula- conviction based the uninformed possibility of an unfair jurors. tion of (a)(4), charged but was not Appellant 2. based subsection that basis. convicted on testing evident in BAC such as those that were 3. Inconsistencies in Shade, a BAC test result of was followed 681 A.2d at where .157% .147%, also raise a concern for only later with a result of one minute admitting without potentially prejudicial effect of such result testimony interpreting it. supporting BAC test in this case was not adminis- Court noted that the Appellant ceased approximately until two and one-half hours after tered driving. speculation informed should not be the basis for a DUI conviction especially where that conviction underlies a crime as serious as the homicide while driving under the influence charge in the case at bar. This is particularly true in a case one, such as this where the defendant stipulates having consumed alcohol and therefore the test result adds almost nothing probative value an expert unless is willing and able explain how such a result can be helpful assessing the defendant’s condition at driving. the time of
Nonetheless, because the focus the case before us is jury may whether the have relied the unconstitutional (a)(5), Barud, subsection see Commonwealth v. (1996), predicate as the offense to its homicide by
vehicle conviction, while rather squarely than presenting the issue of whether the Common- wealth should have been required to present testimony ex- plaining probative value of the BAC test result as related *11 to the time when Appellant vehicle, was actually operating his I concur the result.5
Justice
joins
NIGRO
this concurring opinion.
my
I also note
belief that our Court should address some of the
apparent inconsistencies
respect
that exist in the law with
to relation
testimony,
back
appropriate
as soon as
presents
case
itself. As
above,
Shade,
recently,
discussed
most
681 A.2d at
we held that
it was error for the trial court to relieve the Commonwealth from
evidence,
having
present
relation-back
and therefore arrested the
judgment against the
Yarger,
defendant. Yet in Commonwealth v.
(1994),