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COMMONWEALTH PENNSYLVANIA v. THOMAS JOSEPH GAMBER (03/31/86)

filed: March 31, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS JOSEPH GAMBER, APPELLANT



Appeal from the Judgment of Sentence July 9, 1984 in the Court of Common Pleas of Delaware County, Criminal No. 4748-A-33

COUNSEL

William P. Wismer, Media, for appellant.

Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellee.

Wieand, Cirillo and Roberts, JJ.

Author: Roberts

[ 352 Pa. Super. Page 39]

This is a direct appeal from the judgment of sentence of the Delaware County Court of Common Pleas finding appellant Thomas Joseph Gamber guilty of driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. Gamber presents four principal issues on appeal: (1) whether the trial court erred in allowing the Commonwealth to amend its information to include an averment of a prior conviction, (2) whether the results of an intoxilyzer test should have been suppressed, (3) whether the verdict was supported by the weight and sufficiency of the evidence, and (4) whether Pennsylvania's drunk driving law is unconstitutional. Concluding that these claims of error are uncompelling, we affirm.

I.

As to appellant's first claim, the record reveals that the Commonwealth moved to amend the information to include appellant's prior conviction one day before trial. The amendment enabled the Commonwealth to charge Gamber as a second time offender and seek a minimum sentence of thirty days incarceration as opposed to a two day minimum for a first time offender. 75 Pa.C.S.A. § 3731(e)(1)(i), (ii).*fn1 Appellant argues that by permitting such amendment, the trial court disregarded Pa.R.Crim.P., Rule 229 which forbids an information to be amended where an additional or different offense is charged.*fn2

[ 352 Pa. Super. Page 40]

In Commonwealth v. Reagan, 348 Pa. Super. 589, 502 A.2d 702 (1985), a unanimous en banc panel of this court held that under 75 Pa.C.S. § 3731 the Commonwealth need not allege a prior conviction in the information. Initially, the Reagan court noted that a prior conviction does not constitute an element of the crime of driving while under the influence. Id., 348 Pa. Superior Ct. at 593, 502 A.2d at 704-5; cf. Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985) (for purposes of mandatory sentencing under 42 Pa.C.S. § 9714, a prior conviction is not an element of the offense). Further, the court emphasized that in applying the recidivist penalty provision of the statute, 75 Pa.C.S. § 3731(e)(1), the grade of the underlying offense is not altered.

Any violation of § 3731 is a second degree misdemeanor. The maximum term of imprisonment for a second degree misdemeanor is two years. 18 Pa.C.S. § 1104. Yet the sentence required by 75 Pa.C.S. § 3731(e)(1)(iv) for even a fourth conviction for drunk driving, is "not less than one year." Thus the penalties provided in the Drunk Driving Law do not change either the nature or grade of the offense, nor do they increase the maximum sentence. Because those cases which held that the indictment or information must contain averments of prior convictions to subject a defendant to a recidivist penalty involved statutes which it was held altered the nature and grade of the offense, they are not controlling . . . . (See, e.g., Commonwealth v. Herstine, 264 Pa. Super. 414, 399 A.2d 1118 (1979)).

Reagan, supra, 348 Pa. Superior Ct. at 595-596, 502 A.2d at 705. Consequently, where the imposition of recidivist penalty does not alter the nature and grade of the offense and

[ 352 Pa. Super. Page 41]

    where recidivism is not an element of the underlying offense, amendment of the information is unnecessary. Compare Pa.R.Crim.P., Rule 229.

We conclude that the rationale applied in Reagan to a situation in which the Commonwealth completely failed to amend the criminal information to include a prior conviction is equally applicable to the present situation where the Commonwealth has amended the information. It surely would be anomalous to preclude amendment where no obligation to amend exists. Accordingly, appellant's argument is rejected.

II.

Appellant next asserts that the destruction of the breath sample used in the administering of the intoxilyzer test amounts to a violation of his due process rights under the Pennsylvania Constitution. While not disputing that the results of the test indicated a 0.14% blood-alcohol concentration,*fn3 appellant argues that had the sample been preserved it would have been potentially exculpatory. Accordingly, he contends that because the police failed to preserve the breath sample and, therefore, retesting was made impossible, evidence of the test should be suppressed. Although this argument has been rejected under federal due process standards, California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), we are presented here with an issue of first impression. Concluding that, in the instant matter, the Pennsylvania Constitution commands no more due process protection than afforded under the Federal Constitution, we hold appellant's claim to be meritless.

It is axiomatic that under the due process clause of the fourteenth amendment of the Federal Constitution, as well as Article I, section 9 of the Pennsylvania Constitution, criminal ...


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