Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County, No. 836-85.
J. Michael Considine, Jr., Devon, for appellant.
Nicholas Casenta, Jr., Assistant District Attorney, West Chester, for Com., appellee.
Brosky, Wieand and Beck, JJ.
[ 368 Pa. Super. Page 429]
R.C. Johnson, Jr. was tried by jury and was found guilty of operating a vehicle while under the influence of alcohol*fn1 and operating a vehicle with a blood alcohol content in excess of .10%.*fn2 Post-verdict motions were denied, and Johnson was sentenced to pay a fine of three hundred ($300.00) dollars and the costs of prosecution and to undergo imprisonment for not less than thirty days nor more than twenty-three months. This appeal followed.
On March 30, 1985, at or about 11:55 p.m., Officer John Hackman of the West Whiteland Township Police, observed Johnson's car cross the double yellow line while negotiating a curve on Route 100 in West Goshen Township, Chester County. Hackman followed Johnson's vehicle as it left Route 100 and travelled from West Goshen Township into West Whiteland Township. When it continued to swerve and weave on the roadway, Hackman stopped the vehicle and asked Johnson for his driver's license and registration. Hackman observed that Johnson's speech was slurred, that his eyes were bloodshot, and that he emitted an odor of alcohol. When Johnson was unable to produce his license or registration, Hackman asked him to step out of the vehicle. There, Hackman administered three field sobriety tests -- the walk and turn test, the one leg stand test, and the horizontal gaze nystagmus test -- all of which Johnson failed. Hackman then arrested Johnson and transported him to the township police station. Hackman thereupon administered two breath tests which resulted in blood alcohol content readings of .13% and .12%.
On appeal, appellant contends that the trial court's instructions regarding the significance of the results of the alcoholic content of his blood were confusing and misled the jury. However, an appellate evaluation of a trial court's charge to the jury must be based on an examination of the charge as a whole in order to determine whether it was fair or prejudicial. Commonwealth v. Ohle, 503 Pa. 566, 582,
[ 368 Pa. Super. Page 430470]
A.2d 61, 70 (1983); Commonwealth v. Tolassi, 489 Pa. 41, 57, 413 A.2d 1003, 1010 (1980). Error cannot be predicated on isolated excerpts from a charge, but must be predicated on the charge as a whole. Commonwealth v. Sweger, 351 Pa. Super. 188, 194, 505 A.2d 331, 334 (1986); Commonwealth v. Smith, 343 Pa. Super. 435, 443, 495 A.2d 543, 547 (1985). Jury instructions will be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury properly in its deliberations. Commonwealth v. Person, 345 Pa. Super. 341, 345, 498 A.2d 432, 434 (1985).
The trial court defined the offense of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1) in the following manner:*fn3
Under the Vehicle Code of Pennsylvania, a person is guilty of the crime of operating a motor vehicle while under the influence of alcohol to a degree which renders him incapable of safe driving if you find the following. First of all, the term under the influence of alcohol used in this instruction does not mean that the Commonwealth must prove that the Defendant was drunk or intoxicated. Instead, the meaning of the term includes not only the well-known and easily recognized conditions and degrees of intoxication, but also any abnormal mental or physical condition which results from use of alcohol and tends to deprive the Defendant, Mr. Johnson, of that clearness of intellect and control which he should possess in the absence of such condition, in the absence of the alcohol, provided that the condition renders him incapable of safe driving.
Now, let me give that to you again. The term under the influence of alcohol does not mean that the Commonwealth must prove that the Defendant was drunk or ...