COMMONWEALTH of Pennsylvania v. Judy D. STANLEY, Appellant.
Superior Court of Pennsylvania.
Filed June 17, 1993.
Reargument Denied Aug. 30, 1993.
629 A.2d 940
Submitted Jan. 25, 1993.
Marie T. Veon, Dist. Atty., Franklin, for Com., appellee.
Before BECK, TAMILIA and HESTER, JJ.
BECK, Judge.
In this appeal from the judgment of sentence for conviction of driving under the influence of alcohol, we consider for thе first time whether a jury‘s knowledge that an appellant was given a preliminary breath test constitutes error warranting the grant of a new trial. We hold that while such information is inadmissible and may provide cause for a new trial, the error herе was harmless and the judgment of sentence is affirmed.
Appellant was convicted by a jury of driving while under the influence of alcohol to a degree which rendered her incapable of safe driving.
At trial, the Commonwealth relied on the testimony of Police Officer Robert Hartle who stated that he observed appellant proceeding through an intersection against a red light and pulled her оver to issue a citation. Upon detecting a strong odor of alcohol on her breath and noting her eyes were glassy and red, Hartle asked appellant to exit her vehicle to perform three field sobriety tests. When Hartlе testified that
Hartle then testified at length about appellant‘s performance of the “one-lеgged stand” test, which she was unable to complete satisfactorily, and the “walk and turn” test, which she also failed. The district attorney asked Hartle if he administered any other tests to which he replied that he had given appellant a “preliminary breath test.” Hartle was not asked any other questions with respect to the test. At that point, the trial judge instructed the jury about the PBT and stated that the test was used by officers in the field to determine probable cause to arrest, thаt is, “to avoid making an arrest unless [there is] a good basis to make an arrest.” The court explained that PBT results are inadmissible at trial because they are not sufficiently reliable as the machine is not adequately tested or calibrated to render its results suitable for the jury‘s consideration. The court informed the jury that they could:
consider that fact that the officer did use and administer it and, of course, it forms part of the basis for his opinion which he‘ll probably exprеss in a few minutes in this case. And you may consider the fact that he used it in the course of exercising proper procedures in making the arrest, but you should not speculate or consider the results as substantive evidence in this case as far as whether or not the blood alcohol was at a certain level.
Appellant objected to the court‘s instruction, claiming that the instruction led the jury to conclude that appellant had failed the test. It is appellant‘s position that the jury should not have been made aware of the test at all.
Helpful to our analysis of this issue of first impression is the body of cases addressing polygraph tests. Like PBTs, the results of lie detector tests are inadmissible at trial due to their unreliable nature. Therefore, any reference to a lie detector test which raises an inference concerning the guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm, 443 Pa. 253, 269, 277 A.2d 325, 333 (1971). The mere mention of a lie detector test, however, does not constitute reversible error. In Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982), a prosecution witness mentioned that police wanted to give him a lie dеtector test to see if he was telling the truth. Our supreme court held that a new trial was not required because the question asked of the witness was not designed to elicit information about the test, the result was not mentioned, the answer was sо vague that it was unclear whether the test was even administered and the trial court promptly instructed the jury to disregard the comment and not to speculate about the test. Id. at 264, 439 A.2d at 1171. Similarly, in Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986), appeal denied, 514 Pa. 630, 522 A.2d 558 (1987), a panel of this court held that an accidental
Appellant‘s case is much different. Unlike in Miller and Upchurch, it is clear from the testimony of Officer Hartle that the test was administered to appellant. Further, the prosecution deliberately elicited from the officer the fact that the test was given. The testimony was not stricken from the record; indeed, the trial court specifically instructed the jury that they could consider the fact that the test is used to assist an officer in deciding whether to make an arrest. While the results of the test were not revealed, the instruction of the trial court certainly may have led the jury to conclude that appellant had failed the test.
For all of these reasons, we find that the trial court erred in allowing the Commonwealth to introduce testimony that the test was given and further erred in instructing the jury that the test could be considered, even for the limited purpose of establishing probable cause to arrest. PBTs are to be treated like polygraph tests—their results are inadmissible and any deliberate attempt to reveal to the jury the fact that the test was given, even without letting the jury know the result, is error.
Our inquiry does not end here, however; we must determine whether the admission of the evidence resulted in prejudice to appellant. See Upchurch, 355 Pa.Super. at 432, 513 A.2d at 998; Commonwealth v. Sweger, 351 Pa.Super. 188, 194-96, 505 A.2d 331, 334 (1986), appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987). The other evidence supporting appellant‘s conviction for driving under the influence of alcohol/incapable of safe driving was substantial. Officer Hartle testified with particularity about appellant‘s performance of the other two field sobriety tests. He stated that appellant was unable to hold her leg up and count as required and that she
The jury‘s verdict lends further support to our holding that admission of the evidence was harmless. The trial court instructed the jury that they were not to speculate whether appellant passed or failed the PBT. In addition to the testimony regarding the field sobriety tests, the results of a subsequent breathalyzer test, with a reading of .12%, was entered into evidencе by stipulation of the parties.3 Notwithstanding this evidence, the jury was hung on the other DUI
Judgment of sentence affirmed.
HESTER, J., files a dissenting opinion.
HESTER, Judge, dissenting.
I must respectfully Dissent. I agree with the majority that “the trial court erred in allowing the Commonwealth to introduce testimony that the test was given and further erred in instructing the jury that the test could be considered, even for the limited purpose of establishing probable cause to arrest.” “Preliminary Breath Tests are to be treated like polygraph tests—their results are inadmissible and any deliberate attempt to reveal to the jury the fact that the test was given, even without letting the jury know the result, is error.”
I disagree with the majority, however, with their conclusion to the effect that the admission constitutes harmless error. Even though the jury heard testimony that the results of appellant‘s breathalyzer test was .12%, they did not convict her of driving with a blood alcohol level of .10% or greater. The court advised the jury that the preliminary breath test was used by the police to assist them in determining whether or not they have probable cause to arrest and that the jury could considеr the fact that the officer did use the test and administered it. Even though the jury was not told the results of the test, they were very aware of the results. The appellant was arrested. This had to impact upon the jury.
In my judgment, this was a serious error. I would grant a new trial.