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COMMONWEALTH PENNSYLVANIA v. DAVID C. MILLER (10/20/87)

filed: October 20, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DAVID C. MILLER, APPELLANT



Appeal from the Judgment of Sentence July 9, 1986, in the Court of Common Pleas of Lycoming County, Criminal No. 86-10, 017.

COUNSEL

William Miele, Assistant Public Defender, Williamsport, for appellant.

Kenneth Osokow, Assistant District Attorney, Williamsport, for Com., appellee.

Cirillo, President Judge, and Olszewski and Hester, JJ.

Author: Olszewski

[ 367 Pa. Super. Page 361]

Appellant, David C. Miller, appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County following his conviction by a jury of driving under the influence of alcohol (DUI), resisting arrest, and a summary traffic offense. On appeal, appellant contends that the trial court erred in admitting into evidence: (1) results of a field sobriety test known as the "horizontal gaze nystagmus" (HGN) test; and (2) appellant's prior convictions for burglary, theft, and receiving stolen property. For the reasons stated below, we affirm the trial court's judgment of sentence.

Before addressing the merits of appellant's contentions, a brief recital of the relevant facts is necessary. The Honorable Clinton W. Smith's trial court opinion of December 31, 1986 aptly stated:

In the early morning hours of November 27, 1985, Officers Bruno and Duck, of the Williamsport Bureau of Police, investigated a hit and run accident that occurred in the area of Krouse Avenue and Park Avenue. Upon arriving at the scene of the accident, the officers discovered that a black El Camino vehicle had struck a row of hedges bordering a sidewalk and that it had knocked over a "No Parking" sign. At approximately 2:45 a.m. the officers spotted a vehicle matching the description given by a witness at the scene of the accident, and they proceeded to follow the vehicle operated by defendant [appellant]. After following the vehicle a short distance the officers decided to stop the vehicle; the emergency lights on the cruiser were activated, and the police continued to follow the vehicle. Defendant, however, did not pull over, but rather, led the officers on a chase for several blocks. The officers radioed that they were in pursuit, and eventually the defendant pulled over to the curb, exited the car and ran north on Stevens Street and

[ 367 Pa. Super. Page 362]

    then east on Scott Street. Officer Bruno followed the defendant and found him on the back porch of his residence located at 1553 Scott Street. Officer Bruno approached the defendant, told him not to move and informed him that he was wanted for hit and run and that he was suspected of driving under the influence. Officer Bruno testified that defendant had been driving in an erratic manner in that he went over the curb at one point, that he was driving at an excessive speed and that he went through a stop sign before exiting his vehicle. Officer Bruno also observed that the defendant had bloodshot eyes, that his balance was slightly off, that his speech was slurred and that he smelled of alcohol.

While attempting to place handcuffs on defendant, the defendant engaged Officer Bruno, as well as three fellow officers, in a struggle. Defendant was eventually subdued and upon refusing to submit to blood tests, he was taken to City Hall where he performed sobriety tests. Officer Bruno testified that defendant failed to perform the test[s] correctly and thus, based upon the officer's observation, together with the results of the above tests, defendant was charged with driving under the influence in violation of 75 Pa.C.S. ยง 3731(a)(1).

Trial court opinion of December 31, 1986, at pp. 1-3.

Prior to trial, appellant's counsel filed a motion in limine with the trial court to exclude testimony regarding the HGN test and evidence of appellant's prior criminal convictions. The trial court denied appellant's motion and, after a two-day trial, a jury convicted appellant of driving under the influence, resisting arrest, and a summary traffic offense. The trial court subsequently sentenced appellant to an aggregate term of imprisonment ...


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