decided: August 31, 1984.
EVELINE SCHNITZER, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Commonwealth of Pennsylvania v. Eveline Schnitzer, No. 83-346.
Mark D. Turetsky, for appellant.
Harold H. Cramer, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.
Judges MacPhail, Colins and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
[ 85 Pa. Commw. Page 39]
Eveline H. Schnitzer (Appellant) appeals from an order of the Court of Common Pleas of Montgomery County (trial court) which affirmed the six-month suspension of her motor vehicle operator's license pursuant to Section 1547(b) of the Vehicle Code (Code)*fn1 for her refusal to submit to a breathalyzer test. We affirm.
The trial court found (1) that Appellant had been involved in a one car accident on November 24, 1982; (2) that the police officers at the scene of the accident noticed the smell of alcohol on Appellant's breath and administered a field sobriety test, which she could not perform; (3) that the police officers asked Appellant to take a breathalyzer test; and (4) that Appellant twice refused to take the test even after she was warned that her license would be suspended if she refused. The trial court dismissed the appeal and reinstated the six-month suspension.
We must determine whether, in conducting the de novo hearing, the trial court abused its discretion by
[ 85 Pa. Commw. Page 40]
refusing to hear testimony offered by Appellant, from her husband and her employer, and by limiting Appellant's testimony to certain subjects.*fn2
The general rule is that "questions concerned with the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists." Lewis v. Mellor, 259 Pa. Superior Ct. 509, 515, 393 A.2d 941, 944 (1978) (quoting Westerman v. Stout, 232 Pa. Superior Ct. 195, 202, 335 A.2d 741, 745 (1975)). The issues which were before the trial court in this de novo hearing were (1) whether the arresting officer had reasonable grounds to believe Appellant was driving while intoxicated; (2) whether Appellant was asked to submit to a breathalyzer test; (3) whether Appellant was warned that her license would be revoked if she refused to take the test; (4) whether appellant refused to take the breathalyzer test; and (5) whether Appellant was incapable of making a knowing and conscious refusal to take the test.*fn3 Phillips v. Commonwealth of Pennsylvania, 84 Pa. Commonwealth Ct. 217, 478 A.2d 958 (1984). The trial court had the power to exclude any testimony which was not relevant to these issues.
At the hearing, Appellant offered the testimony of her husband and her employer to attempt to establish
[ 85 Pa. Commw. Page 41]
that she had not been drinking before the accident, and that she had difficulty speaking and understanding the English language.*fn4 Testimony as to whether she had been drinking before the accident was not relevant. The only issue for which they could supply relevant testimony was whether Appellant was incapable of making a knowing and conscious refusal to take the test because of a language difficulty. Whether a driver is incapable of making such a refusal is a question of fact for the trial court. Capozzoli Appeal, 63 Pa. Commonwealth Ct. 411, 437 A.2d 1340 (1981). Judge Smillie, the trial judge, had a first hand opportunity to evaluate Appellant's ability to understand and respond to questions addressed to her on the stand by himself and her attorney. The function of the fact finder is to observe witnesses and make credibility determinations.*fn5 We do not believe the judge abused his discretion by refusing to allow testimony concerning Appellant's language ability, because he could evaluate her ability himself. In fact, Judge Smillie found Appellant to be "an articulate woman." Therefore, we hold that the trial court did not abuse its discretion by excluding the testimony of Appellant's husband and employer, as the testimony would have had no probative value.
With respect to Appellant's testimony, the trial court exercised its discretion to exclude irrelevant testimony. Appellant sought to offer testimony concerning her physical condition after the accident to explain her inability to perform the field sobriety test. The issue before the trial court was whether the arresting
[ 85 Pa. Commw. Page 42]
officer had reasonable grounds to believe that Appellant was driving while under the influence of alcohol, and not the reason for Appellant's failing the field test. The trial court found that the arresting officer twice asked Appellant at the scene of the accident if she was injured, and she told him she was not. The officer noted the smell of alcohol on her breath and that her speech was slurred, and so administered a field sobriety test. The trial court's finding that the arresting officer had reasonable grounds to believe that Appellant was driving while under the influence of alcohol is supported by the evidence. The testimony concerning Appellant's alleged injuries was not relevant to this issue, and so was properly excluded.
Because the trial court did not abuse its discretion in excluding the testimony of Appellant and her two witnesses, we affirm its order reinstating the suspension of Appellant's driver's license.
And Now, August 31, 1984, the order of the Court of Common Pleas of Montgomery County entered March 14, 1983, at No. 83-346 is affirmed.