Appeal form the Judgment of Sentence of April 17, 1985, in the Court of Common Pleas of Wyoming County, Criminal Division, at No. 84-237.
David P. Posatko, Public Defender, Tunkhannock, for appellant.
Brendan J. Vanston, District Attorney, Tunkhannock, for Com.
Brosky, Johnson and Hester, JJ.
[ 351 Pa. Super. Page 363]
This is an appeal from the judgment of sentence entered on non-jury convictions of driving under suspension and driving on the wrong side of the roadway, summary offenses under the Vehicle Code. Appellant's primary argument is the alleged inconsistency between the judge's finding of guilt on the above offenses and the jury's acquittal, in the same trial, on charges of driving under the influence, a misdemeanor. Appellant also challenges the court's refusal to admit certain photographs into evidence. We find no error and affirm.
On August 19, 1984, at approximately 1:30 A.M., police officers observed a vehicle being operated erratically, repeatedly crossing the center line of the highway. After signaling the car to pull over, the officers observed the driver squeeze between the bucket seats and move to the rear of the car. When the officers approached the car on foot, appellant's wife was in the driver's seat and appellant was lying on the back seat.
Appellant was ordered out of the car, and due to the odor of alcohol on his breath was asked to perform field sobriety tests, which he did poorly. He refused to take a breath alcohol test. As a result, he was charged with driving under the influence of alcohol, 75 Pa.C.S. § 3731(a)(1), driving under suspension (related to a prior violation of § 3731), 75 Pa.C.S. § 1543(b), and failure to drive on the right side of the roadway, 75 Pa.C.S. § 3301(a).
At appellant's jury trial on the charge of driving while under the influence, the officers testified to the foregoing facts. Appellant and his wife testified that she had been
[ 351 Pa. Super. Page 364]
driving the car, and that appellant leaned forward between the seats to get her insurance papers from the glove compartment after the police signaled her to stop. Appellant did not contest the fact that he was intoxicated; indeed, he and his wife both testified that she had stopped shortly before apprehension by the police in order for appellant to vomit outside the car. Appellant offered seven photographs taken by a friend under conditions approximating those at the time the police stopped appellant and his wife. The court sustained the Commonwealth's objection to admission of the photos, holding that they were not properly authenticated in that the court could not "equate the camera lens with the eyes of the police officers."
At the conclusion of the trial, the jury returned a verdict of not guilty on the misdemeanor charge. The judge, however, sitting as fact-finder on the summary offenses, found appellant guilty of driving under suspension and failure to drive on the right side of the roadway. Due to the fact that the suspension was related to a previous offense of driving under the influence, appellant received a mandatory sentence of ninety days imprisonment and a fine of $1,000.
Appellant presents only two issues: first, whether the court erred in excluding his photographs, and second, whether the inconsistency between the verdicts of the judge and the jury resulted in such basic unfairness to ...