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COMMONWEALTH v. DIFRANCESCO ET AL. (10/16/74)

SUPREME COURT OF PENNSYLVANIA


decided: October 16, 1974.

COMMONWEALTH
v.
DIFRANCESCO ET AL., APPELLANTS

Appeals from orders of Superior Court, Oct. T., 1971, Nos. 824, 825, 847, and 848, affirming judgments of sentence of Court of Common Pleas of Lancaster County, March T., 1969, No. 367, Sept. T., 1969, No. 321, and Nos. 514 and 876 of 1970, in case of Commonwealth of Pennsylvania v. Samuel R. DiFrancesco, Jr., John H. Buckwalter, Anthony L. Steckel, Jr., and Fred A. Douts.

COUNSEL

Myron L. Markovitz, with him William W. Stainton, Andrew J. Gleason, Gleason, DiFrancesco, Shahade & Markovitz and Arnold, Bricker, Beyer & Barnes, for Samuel R. DiFrancesco, Jr., appellant.

William W. Stainton, with him John W. Beyer, and Arnold, Bricker, Beyer & Barnes, for John H. Buckwalter, Anthony L. Steckel, Jr., and Fred A. Douts, appellants.

J. Andrew Smyser, Deputy Attorney General, with him Israel Packel, Attorney General, Ronald L. Buckwalter, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Eagen concurs in the result. Mr. Justice Manderino took no part in the consideration or decision of this case.

Author: Pomeroy

[ 458 Pa. Page 191]

These four consolidated appeals challenge the constitutionality of section 624.1(c) of The Vehicle Code, which provides that if the amount of alcohol by weight in the blood of a person accused of driving under the influence of intoxicating liquor is shown by chemical analysis to be ten one-hundredths percent (.10%) or more, "it shall be presumed that the defendant was under the influence of intoxicating liquor".*fn1

[ 458 Pa. Page 192]

Appellants were each convicted by a jury of operating a vehicle while under the influence of intoxicating liquor. Results of an analysis of blood taken from appellant Steckel shortly after his arrest, showing a blood-alcohol percentage of 0.21 by weight, were introduced at his trial. Breathalyzer test results were introduced at the trials of appellants DiFrancesco, Douts, and Buckwalter, showing blood-alcohol percentages of 0.16, 0.19 and 0.21, respectively. The court's instructions to the jury concerning these test results were substantially identical. In each case, the trial judge recited the pertinent portions of section 624.1. Exceptions were taken to these instructions on the basis that the statute infringed upon the constitutional rights of the defendants. On appeal, the Superior Court affirmed the judgments of sentence per curiam. We granted allocatur, limited to the question of the constitutional validity of the inculpatory inference authorized by the statute.

At the outset, we note that nothing in subsection (c) of section 624.1 relieves the Commonwealth of its burden of laying a proper foundation for the introduction of test results showing the amount of alcohol in the defendant's blood.*fn2 Nor does the statute compel a verdict of guilty on the basis of such test results alone. Subsection (d) of section 624.1 expressly provides that

[ 458 Pa. Page 193]

"[t]he foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor". The defendant himself may produce such evidence, but there is no burden on him to do so.*fn3

[ 458 Pa. Page 194]

In any case, if on the basis of all the evidence the jury entertains a reasonable doubt as to whether a defendant was under the influence of intoxicating liquor, they are duty-bound to acquit. All that the statute does is specify a quantum of evidence which is legally sufficient to sustain proof of this element of the crime. So long as the connection between the test results and the "presumed" facts of being under the influence of intoxicating liquor meets the required standard of rationality under the due process clause, the statute passes constitutional muster.

In Tot v. United States, 319 U.S. 463, 467-68, 87 L.Ed. 1519, 1524 (1943), the United States Supreme Court singled out the so-called "rational connection" standard as governing the validity of statutory presumptions under the requirements of constitutional due process: ". . . a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the influence of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation

[ 458 Pa. Page 195]

    broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of the courts." (Footnotes omitted.) Subsequent Supreme Court decisions have refined this standard as it applies to legislatively authorized inferences in criminal cases.*fn4 In Leary v. United States, 395 U.S. 6, 36, 23 L.Ed.2d 57, 82 (1969), the Court remarked: "The upshot of Tot [and subsequent cases] is, we think, that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." Because the statutory presumption under review in Leary did not meet this minimum test, the Court declined to reach "the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use". Id. at 395 U.S. 36 n.64, 23 L.Ed.2d 82. While the United States Supreme Court has not yet directly addressed this question, there are unmistakable intimations in its later decisions that where the inferred fact comprises an essential element of the crime charged, the inference must satisfy the reasonable doubt standard. See Turner v. United States, 396 U.S. 398, 24

[ 458 Pa. Page 196]

L.Ed.2d 610 (1970); Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380 (1973).*fn5

In Barnes, the Court's most recent pronouncement in this area, Mr. Justice Powell remarked: "To the extent that the 'rational connection,' 'more likely-than-not,' and 'reasonable doubt' standards bear ambiguous relationships to one another, the ambiguity is traceable in large part to variations in language and focus rather than to differences of substance." 412 U.S. at 843, 37 L.Ed.2d at 386. However tenuous the differences between these standards may be, we are of the opinion that the constitutionality of a standardized inference invoked to establish an essential element of the crime charged must be judged by the reasonable doubt standard.*fn6 This standard is an integral part of criminal due process, In re Winship, 397 U.S. 358, 364, 25 L.Ed.2d 368, 375 (1970), and although "in the judicial assessment

[ 458 Pa. Page 197]

[of the constitutionality of a statutory criminal presumption] the [legislative] determination favoring the particular presumption must, of course, weigh heavily",*fn7 it is not within the power of the legislature to undercut the reasonable doubt standard. Recently, we refused to countenance any relaxation of this standard in the closely related area of so-called "affirmative defenses". Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974); Commonwealth v. Demmitt, 456 Pa. 475, 321 A.2d 627 (1974).*fn8 Moreover, we have consistently held that where the Commonwealth's case rests entirely on circumstantial evidence, this evidence must be strong enough to sustain a finding of guilt beyond a reasonable doubt. See, e.g., Commonwealth v. Amato, 449 Pa. 592, 297 A.2d 462 (1972).*fn9 The test results which bring the statutory inference into play are merely one kind of circumstantial evidence. It would be incongruous, to say the least, to judge this inference by a standard less stringent.

Because section 624.1(c) is based in part on scientific data which most jurors cannot evaluate in light of their own experience and common sense, it is doubly imperative that the inculpatory inference authorized by

[ 458 Pa. Page 198]

    the statute be subjected to strict scrutiny. Nevertheless, we have no difficulty in concluding that this inference satisfies the reasonable doubt standard. In its deliberations prior to enacting section 624.1, the legislature considered evidence demonstrating that, in virtually all drivers, driving ability is significantly affected by a blood-alcohol content of 0.10 percent or more.*fn10 No evidence to the contrary was introduced at the trials below, and our own research suggests that no persuasive evidence of this sort is presently available.*fn11

The main thrust of appellants' attack on the statute is directed not to the reasonableness of the inference, but to the failure of the Commonwealth to produce expert witnesses to interpret the test results on which the inference is based. Of course, one of the major purposes of the statute is to eliminate the need for this sort of testimony.*fn12 Appellants argue, however, that their right to confront the witnesses against them, guaranteed by Article I, section 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to to the Constitution of the United States, places an obligation on the Commonwealth to produce such witnesses. This contention was expressly rejected by the United States Court of Appeals for the Fourth Circuit in a drunk driving case involving a similar statutory inference. Kay v. United States, 255 F.2d 476, 481 (4th Cir. 1958), cert. denied, 358 U.S. 825, 3 L.Ed.2d 65 (1958). The same general line of argument was implicitly rejected in the Supreme Court decisions which we have discussed above. For example, in

[ 458 Pa. Page 199]

Turner v. United States, supra, the Court upheld a statute which permitted the trier of fact to infer from the defendant's possession of heroin that he knew the drugs had been unlawfully imported. In reaching its conclusion that this inference was constitutionally permissible, the Court relied on a large body of data culled from prior decisions, congressional proceedings, and other official studies not made a part of the record at trial.*fn13 The clear import of Turner and the line of cases from which it stems is that legislatures may incorporate their findings of fact into statutory inferences without infringing on a defendant's constitutional right of confrontation. As the Court said in United States v. Gainey, 380 U.S. 63, 67, 13 L.Ed.2d 658, 662 (1965), upholding an incriminating statutory inference: "the process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of [the legislature] to amass the stuff of actual experience and cull conclusions from it."

We emphasize that what is described in section 624.1(c) of The Vehicle Code as a "presumption" is really no more than an inference which the jury may accept or reject in the light of all the evidence in the case. If the statute is read as a part of the court's charge, the non-compulsory nature of this inference must be brought home to the jury.*fn14 More is required

[ 458 Pa. Page 200]

    than just a bare recitation of the statute. The concept of a presumption has caused confusion among lawyers as well as laymen, and the unqualified use of this word in the charge of the court may mislead jurors into thinking they are bound to accept the incriminating inference. See Barfield v. United States, 229 F.2d 936 (5th Cir. 1956); United States v. Sherman, 171 F.2d 619, 624 (2d Cir. 1948); cert. denied sub nom. Grimaldi v. United States, 337 U.S. 931, 93 L.Ed. 1738 (1949). The jury should be instructed that the test results are evidence that the defendant was under the influence of intoxicating liquor, and permit a finding to that effect, but that such a finding is not mandatory; that the test results should be considered together with all the other evidence in the case; and that if there is a reasonable doubt in the minds of the jurors as to whether the defendant was under the influence of intoxicating liquor, they should return a verdict of "not guilty".

Judgments of sentence affirmed.

Disposition

Judgments of sentence affirmed.


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