Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC 8511464.
Vicki K. Horne, Greensburg, for appellant.
Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
Wickersham, Brosky and Johnson, JJ.
[ 360 Pa. Super. Page 591]
This is an appeal from the judgment of sentence imposed following a jury trial in which appellant was found guilty of driving a motor vehicle with a blood alcohol count of .10% or greater.
Appellant raises for our consideration but one issue: whether the evidence was insufficient to support the jury
[ 360 Pa. Super. Page 592]
verdict and whether the trial court erred in refusing to dismiss the criminal complaint brought pursuant to 75 Pa.C.S.A. § 3731(a)(4) at the close of the Commonwealth's case, in the absence of evidence proving beyond a reasonable doubt that appellant's blood alcohol content, at the time he was driving, was .10% or greater.
Upon consideration of the trial court opinion and briefs of counsel, we affirm.
On September 28, 1985, appellant was observed, by a police officer, driving erratically and nearly colliding with another vehicle. When appellant stopped his vehicle the officer noticed an odor of alcohol on appellant's breath and observed that appellant's eyes were red and bloodshot and his face was flushed. Field sobriety tests were administered and then appellant was taken to the police station for a breath test. The first breath test was administered 24 minutes after appellant was observed driving. A second test was conducted one minute later. The lower of the two readings, .102, was introduced into evidence. No breath sample was collected and/or preserved by the Commonwealth.
Appellant was charged with violating 75 Pa.C.S.A. § 3731(a)(1), driving under the influence of alcohol to a degree which renders the person incapable of safe driving, and 75 Pa.C.S.A. § 3731(a)(4), driving a motor vehicle with a blood alcohol count of .10% or greater. As to the first count, a mistrial was declared due to a hung jury. Appellant was found guilty as to Count II, and sentenced to a term of imprisonment of not less than 48 hours nor more than 6 months. It is from that judgment of sentence that appellant has filed the instant appeal.
Appellant alleges insufficiency of the evidence due to the fact that the accuracy of the breathalyzer test was found to have a range of .006%. Thus, appellant contends, there was not enough evidence for a finding of guilt "beyond a reasonable doubt." "The test for evaluating claims based on the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth,
[ 360 Pa. Super. Page 593]
and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt." Commonwealth v. Griscavage, 336 Pa. Super. 141, 145, 485 A.2d 470, 472 (1984).
Appellant was convicted of violating 75 Pa.C.S.A. § 3731(a)(4) which reads as follows:
A person shall not drive, operate or be in actual physical control of the movement of any vehicle while . . . the amount of alcohol by weight in the blood of the person is 0.10% or greater.
As the offense in question contains two elements, both must be proven before a conviction can lie. Additionally, as dictated in the statute by the use of the word "while", both elements must be proven to have occurred simultaneously.
Because the arresting officer observed appellant's operation of the motor vehicle, the first element is not in dispute. This Court has, in the past, held as admissible, the results of chemical tests to determine the alcoholic content of a defendant's blood even though the tests were taken at a time which was relatively remote from the time of driving, Commonwealth v. Tylwalk, 258 Pa. Super. 506, 393 A.2d 473 (1978); Commonwealth v. Trefry, 249 Pa. Super. 117, 375 A.2d 786 (1977). The problem ...