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COMMONWEALTH PENNSYLVANIA v. WALTER M. JONES (11/15/85)

filed: November 15, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER M. JONES, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Mercer County, Criminal No. 366, Criminal 1982.

COUNSEL

Charles F. Gilchrest, Sharon, for appellant.

Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Spaeth

[ 347 Pa. Super. Page 547]

This is an appeal from judgment of sentence for driving under the influence of alcohol.*fn1 Appellant argues that he is entitled to a new trial, for two reasons. During its deliberations the jury returned to the courtroom to ask the court a question. While there, the jury heard testimony in an unrelated trial. Appellant argues that there is a reasonable likelihood that he was prejudiced by this testimony. He also argues that the result of the breathalyzer test was improperly admitted. We affirm.

The Commonwealth presented the testimony of Police Officers Ronald Wiernicki and Gregory J. Sterling of the Township of Hermitage. Both testified that appellant's car was swerving or drifting back and forth in its own lane, that it crossed the center line at one point and straddled the center line at another, that appellant was unable to pass the field sobriety tests, and that in their opinion appellant was intoxicated. Officer Sterling presented a videotape of appellant performing the same sobriety tests at the police station. He also testified that appellant submitted to a breathalyzer test, which he conducted. The test disclosed that appellant's blood alcohol content was .15 percent alcohol. Appellant and his wife, who had been a passenger in the car, testified that appellant had driven properly and had passed the field sobriety tests. They also testified that the officer did not demonstrate how the tests were to be performed. After the jury began its deliberations, it returned to the courtroom to ask the court a question. See N.T. 1/12/83, 26.*fn2 Another trial for driving under the influence

[ 347 Pa. Super. Page 548]

    of alcohol was in progress, and the arresting officer was testifying. When the jury entered the courtroom, the last few questions were being asked on cross-examination. The jury then heard the officer's redirect testimony, which included the following:

Q. Now, Mr. Bogaty [defense counsel] questioned you in some great detail as to your report and we covered certain areas of it. Do you have your report in front of you, officer? I'm referring to the page where you describe breath, attitude, unusual actions, speech and performance.

A. [by Officer Tod Douglas Reiser] Yes sir.

Q. I believe you testified in response to Mr. Bogaty's questions that as to breath you checked or made an X as to moderate; unusual actions, there was no check; and ...


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