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COMMONWEALTH PENNSYLVANIA v. ALAN D. NEISWONGER (02/01/85)

filed: February 1, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ALAN D. NEISWONGER, APPELLANT



No. 00539 Pittsburgh 1983, Appeal from the Judgment of Sentence of April 8, 1983, in the Court of Common Pleas of Mercer County, Criminal, at No. 237.

COUNSEL

Raymond H. Bogarty, Assistant Public Defender, Pittsburgh, for appellant.

James P. Epstein, Assistant District Attorney, Sharon, for Commonwealth, appellee.

Spaeth, President Judge, and Brosky and Olszewski, JJ. Spaeth, President Judge, files a concurring statement.

Author: Olszewski

[ 338 Pa. Super. Page 626]

In this case, appellant contests the admission into evidence of the opinion testimony of a police officer. The officer testified at a jury trial that, in his opinion, appellant was under the influence of alcohol "to a degree that rendered him incapable of safe driving." Appellant was convicted; the trial court denied appellant's motion for reconsideration of sentence, which was based on the theory that the testimony was inadmissible. We agree with the trial court that the testimony was admissible, and affirm the judgment of sentence.

Appellant was stopped by a police officer on May 4, 1982, in Mercer County after his car was seen speeding. Appellant

[ 338 Pa. Super. Page 627]

    was requested to perform coordination tests, and in the middle of the tests, a second officer, Officer John Piatek, arrived. Officer Piatek observed that appellant performed two of the tests badly, that he smelled of alcohol, that he had slurred speech, and that he staggered and swayed. Appellant was arrested for driving under the influence of alcohol. The arresting officer, John Piatek, had not seen appellant driving.

First, we must note that the parties stipulated that the question on appeal would be as follows:*fn1

(O)fficer Piatek, being the arresting officer, was asked whether or not he could form an opinion as to whether the Defendant was under the influence to such a degree as to have a substantial impairment of his ability to drive and therefore be an unsafe driver, to which the witness answered yes, and his opinion was that the Defendant was under the influence to such a substantial degree as to be an unsafe driver. All of this was objected to by counsel for the Defendant.

Appellant concedes that testimony by non-experts on whether a person is intoxicated is admissible. In the Interest of Wright, 265 Pa. Super. 278, 401 A.2d 1209 (1979). Appellant contends, however, that before opinion evidence may be admitted on whether a person is so intoxicated as to be unable to drive safely, the witness must be qualified as an expert on the effect intoxication has on driving practices. We note that no cases exist on whether a witness must be qualified as such an expert to be able to testify as the officer did here.

We begin our analysis by noting that Federal Rules of Evidence 701 and 704 have been adopted in the Commonwealth. Lewis v. Mellor, 259 Pa. Super. ...


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