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COMMONWEALTH PENNSYLVANIA v. KARL B. GILBERT (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KARL B. GILBERT, APPELLANT



COUNSEL

William C. Wickkiser, Allentown, for appellant.

Wardell F. Steigerwalt, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 254 Pa. Super. Page 581]

Karl B. Gilbert, after jury trial, was found guilty of the charge of operating a motor vehicle while under the influence of intoxicating liquor. Following the denial of post-trial motions and sentencing (a fine of $400.00 and costs of prosecution), he filed the instant direct appeal to our Court. The appellant raises three allegations of error in contending that he is entitled to a new trial.

First, appellant maintains that the lower court erred in permitting an analytical chemist to testify as to the results of an analysis of appellant's breath, when the test was performed by another individual. The record shows that the test was performed in the presence of the witness and under his supervision. Moreover, the witness observed and checked each step of the process as well as all calculations of the employee performing the analysis. Under these circumstances the testimony was properly admitted and appellant's first allegation of error is without merit.

Next, appellant contends that the results of a Mobat Sobermeter should not have been admitted as there was allegedly no proper foundation established for the introduction of such evidence. In Commonwealth v. Sweet, 232 Pa. Super. 372, 375, 335 A.2d 420, 422 (1975), our Court recognized the following as necessary elements to establish a foundation for admission of results from a chemical intoxication test:

1. The test was administered by qualified personnel.

2. The equipment used was approved by the Secretary of Transportation.

3. The test was performed at the direction of a police officer having reasonable grounds to believe the test subject to have been driving while under the influence of intoxicating liquor.

[ 254 Pa. Super. Page 582]

In the instant case, the officer who administered the test testified that he had taken a course of instruction for use of the Mobat Sobermeter and had been certified to administer its tests. Such testimony was sufficient to satisfy the first element of Commonwealth v. Sweet, Id. As to the second element, we note that the Mobat Sobermeter, Model No. 2 (the model used in this case) has been approved by the Commonwealth's Secretary of Transportation, which fact is declared in 1 Pa.Bulletin 289. The trial court took judicial notice of this fact as it was required to do by the Commonwealth Documents Law.*fn1 In addition, the analytical chemist, referred to earlier in this Opinion, testified that the Mobat device was approved by appropriate state authorities. Thus, it is evident that the second requirement was met in establishing a basis for admission of the Mobat Sobermeter test results. Finally, we must determine whether the officer who directed that the test be performed had probable cause to believe the appellant to have been driving under the influence of intoxicating liquor. The record clearly shows that element to have been satisfied. Police were called at night to a residence by the owner, who reported that a light colored car had come off of the street and onto his lawn, where the driver struck a brick wall in efforts to extricate the car from the yard. A visitor in the home gave chase and was able to obtain the license number and identify the car as a tan Mercury. The officers who eventually ordered the Sobermeter, while investigating the complaint, saw the car passing ...


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