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COMMONWEALTH PENNSYLVANIA v. GEORGE G. MULLEN (04/21/86)

SUPERIOR COURT OF PENNSYLVANIA


April 21, 1986

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE G. MULLEN, APPELLANT

Appeal from the Judgment of Sentence May 10, 1985 in the Court of Common Pleas of York County, Criminal No. 1468.

Before: Wickersham, Del Sole And Popovich, JJ.

Per Curiam:

Judgment of Sentence affirmed.

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the Judgment of the Court of Common Pleas of York County is affirmed.

Disposition

Judgment of Sentence affirmed.

ING MEMORANDUM BY POPOVICH, J.:

I find, based on my reading of the transcript in the case at bar, that the actions of the assistant district attorney in cross-examining the appellant on the subject of the breathalyzer test not only exploited the issue to the prejudice of the appellant, but the responses given by the appellant could be reasonably interpreted to show that the accused had engaged in prior criminal activity.

Common-sense dictates that one's exposure to the mechanics relating to the operation of a breathalyzer to gauge alcoholic content in one's blood is garnered from having used the device in the past. I believe that the trier of fact could have drawn such a conclusion from the testimony proffered, and to state otherwise is to deny the every day experiences relied upon by a trier of fact in making inferences, reasonably drawn, from the facts heard in a courtroom.

Accordingly, concluding that the appellant was prejudiced and his right to an impartial trial impaired, I respectfully dissent and would remand for a new trial.

19860421

© 1998 VersusLaw Inc.



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