Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1260 of 1970, in case of Commonwealth of Pennsylvania v. John Brown.
Clyde W. Waite, with him Leonard B. Sokolove, and Sokolove & Stief, for appellant.
Martin J. King, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Spaeth, J. Jacobs, J., joins in this opinion.
[ 229 Pa. Super. Page 158]
Defendant was tried and convicted by a jury on a charge of operating a motor vehicle while under the influence of intoxicating liquor. Both the arresting officer and the officer who administered the breathalyzer test testified for the Commonwealth. However, because the officer who administered the test had no independent recollection of so doing, the breathalyzer report itself was introduced into evidence on the basis of the past recollection recorded exception to the hearsay rule.*fn1 The appellant contends that the lower court erred in charging the jury on the relationship between a presumption of fact (intoxication) and the presumption of innocence. We do not find such error to be present and, therefore, affirm. The problem arises due to a "presumption of fact" created by The Vehicle Code.*fn2
[ 229 Pa. Super. Page 15975]
P.S. § 624.1. Intoxication chemical tests, etc.
"(c) If chemical analysis of a person's breath, blood or urine shows --
"(3) That the amount of alcohol by weight in the blood of the person tested is ten one-hundredths (0.10) percent or more, it shall be presumed that the defendant was under the influence of intoxicating liquor."
A guilty verdict in the case of the kind we are considering here requires proof beyond a reasonable doubt that the accused was operating a motor vehicle and was, at that time, under the influence of intoxicating liquor. In considering the court's charge, we cannot take a portion of it out of context but must consider the charge as a whole in determining whether error exists. Although there was a seemingly difficult problem presented to the lower court by a situation involving a presumption of fact (intoxication) and the presumption of innocence, the court nevertheless considered the consequences of each presumption and instructed the jury properly on this matter.
The presumption of innocence requires, inter alia, that the prosecution prove its case beyond a reasonable doubt -- a burden which never shifts from the Commonwealth:*fn3 Commonwealth v. Bonomo, 396 Pa. 222 (1959). On the other hand, a presumption of fact is merely part of the evidence offered by the ...