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COMMONWEALTH PENNSYLVANIA v. BRIAN FRANCIS LITTLE (07/09/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 9, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
BRIAN FRANCIS LITTLE, APPELLANT

Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County at No. 894 Criminal Action.

COUNSEL

Mark D. Frankel, York, for appellant.

John S. Kennedy, Assistant District Attorney, York, for Commonwealth, appellee.

Wickersham, Brosky and Watkins, JJ.

Author: Wickersham

[ 354 Pa. Super. Page 548]

This is an appeal from the judgment of sentence imposed by the Honorable Joseph E. Erb of the Court of Common Pleas of York County. Appellant, Brian F. Little, was tried and convicted by jury of driving under the influence of alcohol.*fn1 We affirm the judgment of sentence.

On March 28, 1984, at approximately 6:08 P.M., appellant was operating his 1969 Pontiac Lemans in the Borough of Hanover in York County, Pennsylvania. As appellant approached the intersection of Cherry and Pine Streets, his automobile collided with another vehicle owned by one Robert L. Wherely of Hanover, Pennsylvania.

Being summoned to the scene, Sergeant James A. Baumgardner of the Hanover Borough Police Department approached appellant's vehicle as appellant was still seated therein. The officer observed several open cans of beer within the passenger compartment as he stood by the vehicle. Sergeant Baumgardner requested appellant to step from his vehicle, and upon doing so, the officer detected an obvious odor of alcoholic beverages on his person and on his breath. Additionally, appellant was observed having difficulty locating his operator's license, passing it by in his wallet several times, until the officer pointed out its location.

At this time, Officer Randy S. Whitson, also of the Hanover Borough Police Department, arrived at the accident scene and administered a series of field sobriety tests to appellant. Appellant failed the following field sobriety tests: "finger to nose test,"*fn2 "alphabet test,"*fn3 "walking

[ 354 Pa. Super. Page 549]

    test,"*fn4 and "horizontal gaze nystagmus test."*fn5 Officer Whitson further testified at trial to appellant's intoxicated mannerisms, including bloodshot eyes, a swayed stance, and the odor of alcohol. Appellant was thereafter placed under arrest and transported to the McSherrystown Police Department in McSherrystown, Pennsylvania. At the McSherrystown station, appellant consented to be tested by breathalyzer to determine the amount of his blood alcohol content. Appellant's test results indicated a 0.22% blood alcohol content.

Appellant was tried before a jury on charges of driving under the influence of alcohol to a degree which renders the person incapable of safe driving and driving while the amount of alcohol by weight in the blood was .10% or greater. A guilty verdict was returned on both charges. Post-verdict motions being denied, appellant filed this timely appeal. Appellant sets forth four vague issues for our review.*fn6

Appellant's first issue, more properly stated, is whether a photocopy of a certificate of accuracy issued for an Intoximeter Model 3000 is admissible into evidence under the statutory hearsay exception for business and public records found in the Uniform Photographic Copies of Business and Public Records as Evidence Act? We find that the lower court correctly received the evidentiary offer of the photocopy in this case.

[ 354 Pa. Super. Page 550]

In Pennsylvania, the legislature has provided by statute that the amount of alcohol in a person's blood as shown by a chemical test of that person's breath, which test was conducted by a qualified person using approved equipment, is sufficiently reliable to be admissible in a criminal proceeding. 75 Pa.C.S. § 1547(c). The statute requires that the tests be conducted by devices approved by the Department of Health and Transportation. 75 Pa.C.S. § 1547(c)(1). A list of approved testing devices is contained in the Pennsylvania Bulletin. The list includes the Intoximeter Model 3000.*fn7 Section 1547(c)(1) of the Vehicle Code further provides that devices shall be calibrated and tested for accuracy within a statutory time period, and in a manner specified by regulation. A certificate is thereafter issued upon successful testing.

[ 354 Pa. Super. Page 55167]

Pa.Code § 77.6 requires an accuracy inspection test to be conducted upon each breath testing device at 30-day intervals. Upon completion of the accuracy inspection procedure detailed in this section, the results are recorded, and a certificate of accuracy is signed and dated by the certified breath test operator who performed the accuracy inspection test. 67 Pa.Code § 77.6(c), (d).*fn8

At trial, the Commonwealth was permitted to enter into evidence, over objection, a photocopy of a certificate of accuracy for the breathalyzer used to test appellant. No issue has been raised and no suggestion made that the proffered photocopy somehow differed from the original document.

Section 6109 of Title 42, the Uniform Photographic Copies of Business and Public Records as Evidence Act, provides, in pertinent part:

(b) General rule. -- If any . . . department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced . . . which accurately reproduces . . . the original . . ., [s]uch reproduction, when satisfactorily identified, is as admissible in evidence as

[ 354 Pa. Super. Page 552]

    the original itself in any judicial or administrative proceeding, whether the original is in existence or not . . . .

42 Pa.C.S. § 6109(b).

The Commonwealth produced the testimony of the certified breath test operator who performed the accuracy inspection test. This witness testified that the machine at issue was tested and calibrated in accordance with statutory procedure. N.T. at 58. The witness further identified the certificate of accuracy photocopy, noting that his signature was present, and that the breathalyzer serial number, the date, and the numerical calibration test results were contained therein. The witness ultimately testified that the photocopy was a true and correct copy of the original, and that the photocopies of the original document were in fact made in his presence.

The document clearly satisfied all of the essential requirements for admissibility of the photocopy pursuant to 42 Pa.C.S. § 6109(b).*fn9 Appellant's best evidence arguments are therefore meritless.

Appellant next contends that the Commonwealth did not properly admit evidence pertaining to certification of simulator solution*fn10 and ampoules utilized in the breath testing process. The lower court reasoned that "since there is no statutory requirement for the solutions which are used to test intoximeters to be certified, the Court also properly admitted the intoximeter results." Lower ct. op. at 3. To this finding we must agree.

[ 354 Pa. Super. Page 553]

Certification of these items is set forth under 67 Pa.Code § 77.24(d) and (e).*fn11 "Section 77.24(d) and (e), respectively, clarify that the certifications by the manufacturer of simulator solution and by the manufacturer of ampoules are to be based upon testing by an independent laboratory." 15 Pa.B. 682 (February 23, 1985).

This regulation requires that the manufacturers of ampoules certify to their users that the ampoules will give the anticipated results when used for alcohol breath tests, accuracy inspection tests or calibrations using breath test equipment, § 77.24(e). Certification of the accuracy of ampoules will insure the integrity of the entire testing procedure . . . . The Departments believe that the manufacturers of ampoules can most effectively, economically and efficiently analyze their own ampoules and certify their accuracy to their users.

14 Pa.B. 4600-601 (December 22, 1984). We find that the legislature has spoken on this issue and that the Commonwealth does not bear the burden of simulator solution or ampoule certification. The legislature has determined that the manufacturer is in the best position to test and certify its own product through independent testing. Furthermore, we find that the placing of such a product on the market by the manufacturer, after independent testing, to be certification to the user that the product will produce the intended results per statutory requirement. 67 Pa.Code § 77.24(d),

[ 354 Pa. Super. Page 554]

(e). Absent some suggestion that the products were in fact defective, the Commonwealth was under no burden to show certification of the manufacturer's product. We can find no merit to appellant's arguments regarding this issue.

Appellant next alleges, citing no authority for his position, that the lower court erred in permitting the Commonwealth to reopen its case. "It is within the discretion of the trial judge to permit either side to reopen its case to present additional evidence . . . . The trial court has the discretion to reopen a case prior to submission to a jury to prevent a failure or a miscarriage of justice." Commonwealth v. Mathis, 317 Pa. Super. 226, 232, 463 A.2d 1167, 1171 (1983) (citation omitted). Appellant's contention is therefore void of merit.

Lastly, appellant brings forth a sufficiency of the evidence issue, the foundation of which was laid by "boiler-plate" motions before the court below. See Motion For New Trial And/or Arrest of Judgment, Dec. 3, 1984. This practice is contrary to this court's admonition in Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983)(en banc), and its progeny, that our court would no longer consider issues preserved where they were not specifically set forth in writing and consisted of no more than sentences that "the evidence was insufficient to support the verdict" or that "the verdict was against the weight of the evidence." "[I]t is no longer merely a warning, but the law, that all issues not specifically raised in post-verdict motions are waived on appeal." Commonwealth v. Cardona, 316 Pa. Super. 381, 386, 463 A.2d 11, 14 (1983). See also Pa.R.Crim.P. 1123(a), (c)(3). Since, counsel for appellant has not complied with the dictates of Holmes, we cannot grant counsel the benefit of our review.*fn12

[ 354 Pa. Super. Page 555]

Having found no issues among those presented by appellant which would warrant reversal of the court below, we affirm the judgment of sentence.

Judgment of sentence affirmed.

JUDGMENT

On Consideration Whereof, it is now hereby ordered and adjudged by this Court that the Judgment of Sentence of the Court of Common Pleas, of York County is Affirmed.

Disposition

Judgment affirmed.


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