No. 928 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Mercer County at No. 146 Criminal 1977.
Charles F. Gilchrest, Sharon, for appellant.
David B. Douds, Assistant District Attorney, Hermitage, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 89]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division of Mercer County at No. 146 Criminal 1977. The procedural history and facts relevant to the issues on appeal are as follows:
Appellant was arrested on November 23, 1976 and charged with the offense of driving while under the influence of
[ 259 Pa. Super. Page 90]
intoxicating beverages. The officer testified he was traveling directly behind appellant for 1 1/2 miles on Interstate 79 and observed him run off the right side of the highway three or four feet on three occasions, in addition to crossing the centerline by two feet, all at an approximate speed of 24-28 miles per hour. After the vehicle had been stopped by the officer, appellant handed the officer a card showing membership in the Shenango Valley Chamber of Commerce instead of his license. He then handed his entire wallet to the officer which was refused. The license was then removed by appellant, and in getting out of the car, several cards and keys spilled onto the ground. The officer testified that appellant was weaving back and forth and bracing himself with his hands on the roadway as he picked up the cards. When he was given performance tests, appellant was unable to stand on one foot with his eyes closed, and could not touch the tip of his nose with his eyes shut. The officer noticed a staggering gait as appellant walked to the police car. Once in the car, appellant refused to submit to a chemical test of his breath. At the police station, appellant again refused the breathalyzer test. The officer testified that during the time appellant was at the police station waiting for a taxi, he had a staggering gait. He did not have a slurred speech and the officer didn't notice whether appellant's eyes were red or bloodshot. The officer informed appellant that he could wait in the front section of the building, but instead he staggered into another office, at which time he was told he was in the wrong area and to go and sit in the lobby area.
Appellant testified that he was an attorney for Allegheny Ludlum Industries. He stated that he had three drinks of vodka and water the afternoon of this occurrence between 1:00 P.M. and 2:30 P.M. as he packed his clothes in his hotel room in Pittsburgh for the trip home. He left Pittsburgh at approximately 5:45 P.M. He further testified that he did go off the road several times and missed the proper exit because he was attempting to unlock his briefcase, prop up the lid, open a box of cigars therein, and then unwrap and light one of the cigars.
[ 259 Pa. Super. Page 91]
Appellant objected to two sections of the Judges' charge specifically. The jury was instructed that people pass alcohol out of their systems and that one test the jury may use in determining when consumption occurred is whether the person stays the same, ...