No. 332 Harrisburg, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County, No. 251 Criminal 1983.
John F. Goryl, Carlisle, for appellant.
Theodore B. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
Wickersham, Wieand and Hester, JJ.
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Michael W. McGinnis was tried by jury and was found guilty of driving a vehicle while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1). On direct appeal, McGinnis contends (1) that the evidence was insufficient to support the verdict; (2) that the result of a breathalyzer test should have been suppressed because the police lacked probable cause to arrest; (3) that the result of the breathalyzer test was inadmissible because the breathalyzer used was not properly shown to be accurate and the trial court should not have taken judicial notice that the breathalyzer was an approved device; and (4) that the trial court erred in failing to instruct the jury on the provisions of 75 Pa.C.S. § 3731(a)(4) which make it an offense to drive a
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vehicle while the operator's blood alcohol content is .10% or greater. We affirm the judgment of sentence.
On February 16, 1983, at or about 5:00 a.m., in Carlisle, Cumberland County, McGinnis drove his vehicle over a fire hose in such a manner that the undercarriage hooked a coupling of the hose and dragged the hose along the street until McGinnis was stopped by fire police. When Carlisle police requested McGinnis to produce his operator's license and owner's card, he became abusive and swore at the police. The police officers detected an odor of alcohol on McGinnis' breath, observed that his eyes were bloodshot and glassy, and noted that he fumbled through his wallet before producing the cards requested. When he was told that he was under arrest for driving while under the influence of alcohol, McGinnis began screaming and making gestures toward the police. He said that he was going to leave and attempted to enter his car but was restrained by police who placed handcuffs on him and took him to the police station. A breathalyzer test showed a blood alcohol content of .14%.
"The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Carter, 329 Pa. Super. 490, 495-496, 478 A.2d 1286, 1288 (1984). The facts proved by the Commonwealth in this case were sufficient to support the jury's finding that McGinnis had driven a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving in violation of 75 Pa.C.S. § 3731(a)(1).
Although McGinnis had also been charged with a violation of 75 Pa.C.S. § 3731(a)(4), in a second count of the information, the trial court instructed the jury that McGinnis could be found guilty only if he drove a vehicle while
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under the influence of alcohol to a degree which rendered him incapable of safe driving. McGinnis did not object to the jury instructions regarding the omission of a charge on § 3731(a)(4) despite an opportunity to do so. Therefore, this issue has been waived. See: Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). McGinnis' failure to object is understandable. ...