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COMMONWEALTH PENNSYLVANIA v. ROBERT ALFRED RICK (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT ALFRED RICK, APPELLANT



COUNSEL

Peter Kemeny, Harrisburg, for appellant.

Marion E. MacIntyre, 2nd Asst. Dist. Atty., Harrisburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion.

Author: Price

[ 244 Pa. Super. Page 35]

On the evening of April 25, 1974, Pennsylvania State Police Trooper Barry J. Kostival was sent to investigate the scene of an accident in the vicinity of Sandy Hollow Road in West Hanover Township, Dauphin County. When he arrived, he learned that the driver, appellant, had been taken to the hospital. Trooper Kostival went to the hospital intending to interview appellant, but learned that appellant was being treated for injuries and could not then be interviewed. The trooper talked to Dr. J. Stanley Smith, the attending physician, who offered Trooper Kostival a copy of a report of the blood test which had been performed on appellant at the request of appellant's wife. After seeing the test results, Trooper Kostival instituted a complaint against appellant for

[ 244 Pa. Super. Page 36]

    driving while under the influence of intoxicating liquor. On November 22, 1974, appellant was convicted of that charge by a judge sitting without a jury. We affirm.

Appellant raises two allegations of error. The first is that the return of the district justice should have been quashed because the evidence produced at the preliminary hearing did not establish a prima facie case. At that hearing, the Commonwealth produced the testimony of Trooper Kostival and the chemist's report which indicated that shortly after the accident, appellant's blood-alcohol level was .18%. Appellant objected to the chemist's report on the grounds that it was hearsay. Appellant now contends that because the only evidence of his intoxication was hearsay, the evidence was insufficient to establish a prima facie case. We disagree.

The distinction between a preliminary hearing and the trial itself is well settled. While a trial determines guilt or innocence, the "preliminary hearing is held primarily to prevent the detention of a person for a crime which was never committed or of a crime with which there is no evidence of his connection." Commonwealth v. O'Brien, 181 Pa. Super. 382, 396, 124 A.2d 666, 673 (1956). See also Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964); Commonwealth v. Smith, 232 Pa. Super. 546, 334 A.2d 741 (1975).

The question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime. In this case, the chemist's report, alone, would have been inadmissible at trial to prove appellant was intoxicated. However, the district justice acted correctly in admitting the report to determine that there may have been a crime committed and that appellant may have been involved. Certainly, the difference in purpose between

[ 244 Pa. Super. Page 37]

    a preliminary hearing and a trial dictates a different enforcement of the rules of evidence.*fn1

In Commonwealth v. Banks, 228 Pa. Super. 308, 323 A.2d 780 (1974), the defendant contended that it had been error to admit a chemist's report at the preliminary hearing. Without reaching the hearsay question, this court held that appellant's contention was meritless, citing Commonwealth ex rel. Maisenhelder v. Rundle, supra, and Commonwealth v. Smith, 212 Pa. Super. 403, 244 A.2d 787 (1968). Cf. Commonwealth v. Burger, 195 Pa. Super. 175, 171 A.2d 599 (1961). Therefore, the district justice did not err in ...


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