*1 Pennsylvania COMMONWEALTH TODARO, Anthony Appellant.
Superior Pennsylvania, Court of 9, 1980.
Argued June Filed June *2 Defender, Public Swigart, Huntingdon,
Charles B. appellant. Kurtz, L. District Huntingdon,
Stewart sub- Attorney, Commonwealth, mitted a brief on behalf of appellee. CIRILLO, Before JJ.* BROSKY, HOFFMAN and BROSKY, Judge: was involved in an in Feb-
Appellant automobile accident 1977 as a result of which he was ruary, charged with another involuntary manslaughter, recklessly endangering person and under the influence. He was driving convicted of all in 1979 charges and sentenced to a term of by jury of 11 to 48 imprisonment months. The case is before us following the denial of motions. con- post-trial tends that the lower court excluded evidence of improperly the intoxication of the deceased driver of the other automo- bile and that it erred in its We affirm jury. *3 the decision of the trial court.
The facts of the case are as follows. Appellant, Anthony Todaro, was involved in an automobile accident on the of 1977. The automobile which he evening February was collided with a “Beetle” in which six driving Volkswagen were The driver of the persons travelling. was Volkswagen killed.
Appellant’s first contention is that the lower court erred in the introduction of evidence refusing permit alcohol found in the blood of the deceased. The parties stipulated that the blood alcohol level of the deceased driver however, was 0.32 The district percent. attorney, opposed the introduction of this evidence it was not saying relevant. We agree. Evidence, Ed., McCormick on
Citing 2nd West Publishing 1972, 437, Company, has outlined the p. appellant commonly is, used test of relevance. That the evidence offered “[D]oes render the desired inference more than it would be probable without the evidence?” of this test to the facts Application * argued Judge At the time this case was VINCENT A. CIRILLO of the County Montgomery sitting designa- Court of Common Pleas of is tion. evidence not
of the case indicates that the does present make the inference more sought by appellant probable.
The the oc- was that accident theory prosecution lane of caused by curred in the southbound traffic was who was north in that lane. appellant driving support the witnesses who testified prosecution produced theory, that was north in the southbound lane driving appellant in the shortly passengers before accident occurred. shone di- appellant’s headlights testified that Volkswagen investigat- Beetle. a state who rectly Finally, trooper at the was ed the scene testified that that it his opinion, accident in the marks, based on that the accident occurred gouge lane. Our examination of record indicates southbound found, is no that the lower court there inference was caused accident it deceased or that occurred the northbound lane. Of course, show prosecution is proof burden need not caused the accident. appellant However, way. it in another demonstrate occurred not on he still cannot proof while the burden is appellant, which does not a desired help prove introduce evidence alone, alcohol, sup- inference. Evidence of blood does cause of the accident. It was inference as to the port any before the court. any not relevant to issue of error concerns the assignment next his intoxication. The on the charge jury question as to the effect of voluntary instructed judge have that the should Appellant argues intoxication. *4 included a more discussion of intoxica thorough involuntary consumed although tion. He claims that he voluntarily blood realize that medi enough alcohol to make the alcoot alcohol 0.14 taking per cation he was combined with level he cent, he be found intoxicated because involuntarily should with taking did not realize that medication was combined as In alcohol, cause him to be as intoxicated he was. would v. 495 Pa. 435 case, Bridge, the recent Commonwealth of our Court examined the issue A.2d 151 (1981), Supreme is The when of intoxication admissible. voluntary evidence court wrote: of issue in history jurisdiction this this has been a
checkered one. Commonwealth Tarver Pa. [446 759], 284 A.2d this of supra, Court restricted use evidence to reducing of intoxication offense of murder of the first a lesser degree degree to of murder. It rejected view this evidence should be allowed specific wherever a mens rea crime was charged. The Tarver position repudiated was in legislature original draft section 308 which provided: Intoxication drugged § condition. Intoxication or not, such, condition are drugged de- fenses to a criminal charge; but any prosecution for offense, any evidence intoxication or drugged condi- tion of the defendant be offered may the defendant whenever it is to relevant an negative element of the offense.
This did provision not limit the use of evidence of volun- intoxication tary to an offense requiring specific a mens It rea. followed Model Penal Code 2.08(1) [Section Draft, Proposed Official form of the defense and 1962] looked to all elements of the to crime alleged determine whether the offense proof some actual required purpose awareness the intoxication might If negate. such an element was required crime, under the definition then evidence of intoxication voluntary permitted was negate its existence.
After promulgation version of original section 308, this Court was again upon called to consider the question crimes that relationship occurred prior Code Crimes of 1972. In Commonwealth v. Graves Pa. 661], A.2d supra, Court concluded [461 intoxication could be introduced to negate intent in crimes possessing a specific intent. Thus Graves went beyond Tarver’s limited application murder of the first degree yet did as far as go section 308’s application to crimes that did not require specific mens rea. *5 Graves, the legisla- supra, to our decision
Subsequent
form. The
section 308 to its present
ture
fit to revise
saw
adoption
an
virtually
of section 308 is
version
present
the Tarver view.
576,
Id.,
(Footnotes deleted.) 308 provides:1 Section volun- condition. Neither drugged or 308. Intoxication
§ is a condition voluntary drugged nor intoxication tary of such nor charge, may to a criminal defense of intent the element negate introduced conditions be evidence of such intoxication offense, except of the be offered may the defendant drugged condition murder from it is relevant to reduce whenever defendant of murder. degree to a lower a higher degree purposes has limited Legislature our Clearly, in such a as to way can be used which intoxication evidence intoxica voluntary of evidence the introduction preclude however, that Appellant argues, tion in this case. 308, intox voluntary which applies amendment to Section intoxication ication, involuntary that evidence suggests that the lower court did not He contends can still be used. intoxi involuntary the defense clearly explain find no evidence However, because we cation. was not we voluntary, intoxication
finding appellant’s does contend in this regard. find no error (which medication into either taking that he was coerced taken on having day remember clearly cannot even in his belief that alcohol.2 If he was mistaken question) combination, the effects he could withstand An consumed them having involuntary. his makes hardly not called for in intoxication was involuntary instruction this case. 334, 1, 6, 1972, P.L. No. § Act of Dec.
1. 18 Pa.C.S.A. § 7, 1976, amended, April No. 32 1.§ P.L. We, too, Bridge, supra, at 154 note 2. See Commonwealth state caused of intoxication the resultant in the definition include drugs. court inaccu- is that the trial contention final *6 instructions. his during jury reviewed the rately ap- summary the court’s concerns complaint testified as to The doctor testimony. pellant’s physician’s use of his concerning he to gave appellant instruction the that he to show sought tranxene. Appellant the tranquilizer alcohol combining as to the effect had not been warned with tranquilizer. the the it is jury, the court’s to reviewing charge entirety. review it that we read and
now axiomatic
41,
(1980).
A.2d 1003
Tolassi,
v.
489 Pa.
413
Commonwealth
excerpts
be
isolated
predicated
Error cannot
that controls.
charge
It is the
effect
the
general
charge.
1,
(1978).
Woodward, 483 Pa.
Order affirmed.
HOFFMAN, J., concurring opinion. files HOFFMAN, concurring: Judge, of this majority’s disposition I with Although agree has waived to case, any objection I would hold that appellant at trial. specific exceptions to take charge by failing jury he did not to specifically except concedes that and, fact, did not even discover the the court’s charge until after the notes of the evidence misstatement purported however, contends, He were transcribed. testimony to the court’s of the evidence summary his general exception court of objection was sufficient his notify I “A disagree. general exception it for review. preserve will not an issue for preserve appeal. charge taken to the shall be omission Specific exception language 302(b). Pa.R.A.P. A complained specific exception of.” an objectionable must be for lodged preserve Lew, v. Tagnani motions, 493 Pa. post-trial v. Commonwealth review, (1981), appellate as well as Clair, Dilliplaine Lehigh (1974); 458 Pa. 326 A.2d Co., Trust 114 (1974). Valley 457 Pa. 322 A.2d Accord- failed to take a specific because ingly, appellant exception misstatement, I would the issue find waived. alleged *7 GOULD, Appellant, Linda CLAYTON, William Jr.
Superior Pennsylvania. Court Argued March 1981.
Filed June