No. 1005 April Term, 1976, Appeal From the Order Entered July 14, 1976, by the Court of Common Pleas, Criminal Division, of Clearfield County at No. 34 March Term, 1973.
Anthony S. Guido, DuBois, for appellant.
Thomas F. Morgan, District Attorney, Clearfield, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 240]
This is an appeal from a conviction for driving while under the influence of alcohol.*fn1 The narrow issue before this court is whether the trial judge erred by instructing the jury that a presumption of intoxication is raised if the Commonwealth proves beyond a reasonable doubt that the defendant's blood alcohol level was 0.11, and that upon such proof the defendant's guilt will have been established beyond a reasonable doubt. We find that the trial court erred by overstating the weight to be given the results of the breathalyzer test introduced into evidence. Therefore, we reverse.
In its charge to the jury, the trial judge summarized the Commonwealth's case in the following manner.
"Now, members of the Jury, you had offered to you as testimony by the Commonwealth to establish their case against this Defendant two items of proof. If they have proved beyond a reasonable doubt either or both of these, then, you will have determined that the guilt of the Defendant has been established beyond a reasonable doubt. If they have failed to determine beyond a reasonable doubt or prove beyond a reasonable doubt either, that is both of these, then they will have failed their burden." [Emphasis added.]
The two items of proof referred to by the court included the testimony of a witness who saw the defendant-appellant, Mr. Homer B. Gearhart, immediately after the accident and said that Mr. Gearhart had slurred speech, blood-shot eyes
[ 253 Pa. Super. Page 241]
and dilated pupils. Also introduced was the result of a breathalyzer test taken by Mr. Gearhart showing a 0.11 percent alcoholic content by weight in the blood. With response to the results of the breathalyzer test, and to the testimony of the eye-witness, the lower court told the jury,
" If [the result of the breathalyzer test] is proved beyond a reasonable doubt then you will have determined that the guilt has been established. So if either one [item of evidence] or both has been proved, you will find him guilty if proved beyond a reasonable doubt. If either of them has not been proved ...