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

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 ...


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