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decided: October 23, 1987.


Appeal from the Order of the Court of Common Pleas of Chester County, Criminal at No. 407-86.


Stuart B. Suss, Assistant District Attorney, West Chester, for Com.

Paul J. Rubino, Paoli, for appellee.

Montemuro, Kelly and Cercone, JJ. Kelly, J., files a concurring statement.

Author: Montemuro

[ 368 Pa. Super. Page 490]

The Commonwealth appeals from an oral suppression order issued by the Chester County Court of Common Pleas on September 23, 1986. The court found inadmissible the audio portion of a video tape of appellee performing sobriety tests after he had been arrested for driving while under the influence. We affirm.

Prior to reviewing the suppression order, we must determine whether it is appealable. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution. Id., 506 Pa. at 545, 486 A.2d at 386. A prosecution is substantially handicapped whenever "the Commonwealth is denied the use of all their evidence," id. The Commonwealth's certification is "not contestable," and "[i]t, in and of itself, precipitates and authorizes the appeal." Id. See also Commonwealth v. Hunsberger, 358 Pa. Super. 207, 516 A.2d 1257 (1986) (" Dugger rule" applied). In the case before us, the Commonwealth has satisfied the certification requirement. We therefore find that the Commonwealth has an absolute right of appeal to this Court to challenge the validity of the September 23, 1986 suppression order. We now turn to the merits of the Commonwealth's claims.

[ 368 Pa. Super. Page 491]

Appellee James Conway was arrested on the morning of February 12, 1986. A police officer had been called to the scene and had observed Mr. Conway seated in his car, which was stuck in a snowbank on the side of the road. Mr. Conway was attempting to free the car from the snowbank. As the officer approached the car, he noticed that Mr. Conway appeared intoxicated. He also smelled alcohol. The patrolman attempted to administer two field sobriety tests, the horizontal gaze nystagmus*fn1 and the one-leg stand. The officer concluded that appellee was incapable of completing the horizontal gaze nystagmus test. Because the road was snow-covered, the officer felt that the road conditions were too dangerous to administer any other sobriety tests. He then arrested Mr. Conway for driving under the influence of alcohol and took him to the police station.

At the station, the police informed appellee of his Miranda rights and of the Implied Consent Law.*fn2 Mr. Conway stated that he did not wish to speak to the officer and refused any chemical testing of his blood. He attempted to contact his attorney but was unsuccessful. The police then videotaped Mr. Conway. On camera, Mr. Conway was again advised of his Miranda rights, and he again invoked his right to remain silent and his right to counsel. He was then filmed performing three sobriety tests. As he performed the tests, Mr. Conway spoke only in order to get

[ 368 Pa. Super. Page 492]

    occasional clarification concerning the officer's oral instructions. The officer also requested Mr. Conway to count from 1,001 to 1,030 while balancing on one leg. After Mr. Conway had completed the tests, the police officer asked him questions, including how much and what he had drunk prior to his arrest.

The suppression court concluded that the sound portion of the tape, in conjunction with the video, would both mislead the jury and violate appellee's privilege against self-incrimination. Accordingly, the court proposed that a police officer give a "voice over" to explain the film while only the video portion of the tape be shown to the jury. The officer could also comment on whether he thought appellee had passed the tests.

The Commonwealth argues that the audio tape should not be suppressed on the ground that it would mislead the jury because the jury is capable of analyzing such evidence. Additionally, the Commonwealth concedes now, as it did at the suppression hearing, that both appellee's filmed invocation of his right to remain silent and the post-test questioning by the police officer are inadmissible. However, it argues that appellee's "utterances" during the course of the tests were neither testimonial nor compelled and are, therefore, not protected by the privilege against self-incrimination. The Commonwealth maintains that because it seeks to introduce the audio portion of the videotape only to demonstrate appellee's ...

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