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STEPHEN M. COHEN v. COMMONWEALTH PENNSYLVANIA (05/14/80)

decided: May 14, 1980.

STEPHEN M. COHEN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Stephen M. Cohen, No. 78-21644.

COUNSEL

Alvin Freiberg, with him David B. Comroe, Robinson, Greenberg and Lipman, for appellant.

Morris Levin, with him Harold H. Cramer, Assistant Attorneys General, Ward T. Williams, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for appellee.

Judges Wilkinson, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 51 Pa. Commw. Page 348]

The very narrow issue presented in this appeal from the trial court's dismissing appellant's appeal from a suspension of his operating privileges for failure to submit to a breathalyzer test is a factual one -- does the record support the finding that appellant's refusal was conscious and knowing. It is appellant's position that he was so under the influence of a "small portion of wine" imbibed at an office party, combined with medication, that he was incapable of knowingly making a willful refusal. We disagree and affirm.

The law applicable to this situation is ably set forth by Judge Mencer in Commonwealth v. Passarella, 7 Pa. Commonwealth Ct. 584, 300 A.2d 844 (1973) and by Judge Brown in his opinion in this case,

[ 51 Pa. Commw. Page 349]

    filed in Montgomery County Court of Common Pleas to No. 78-21644 in the Civil Division, making it unnecessary to repeat it here. No one doubts that questions of credibility and selecting between conflicting evidence are matters for the trial court. McMahon v. Commonwealth, 39 Pa. Commonwealth Ct. 260, 395 A.2d 318 (1978).

Quite apart from the credibility of appellant's testimony, the following testimony of the arresting officer would support the trial court's decision. On cross-examination --

Q. All right. Now, this man was not in good condition, was he, during that entire time?

A. He was -- he seemed coherent, knew what we were ...


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