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COMMONWEALTH PENNSYLVANIA v. JOSEPH YAPSUGA (12/30/87)

filed: December 30, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH YAPSUGA, APPELLEE



Appeal from the Order entered January 19, 1987 in the Court of Common Pleas of Northampton County, Criminal No. 496-1986.

COUNSEL

Christopher T. Spadoni, Assistant District Attorney, Bethlehem, for Com.

Jack Panella, Easton, for appellee.

McEwen, Olszewski and Del Sole, JJ.

Author: Del Sole

[ 369 Pa. Super. Page 338]

Appellee was convicted in a non-jury trial of Driving Under the Influence of Alcohol pursuant to 75 Pa.C.S.A. ยง 3731(a)(4). Following his conviction, Appellee filed post-verdict motions for a new trial and in arrest of judgment. In granting Appellee's motion to arrest judgment, the trial court concluded the Commonwealth's evidence was insufficient to establish Appellee had a blood weight level in excess of 0.10% at the time he was operating his vehicle. The Commonwealth contends the disposition of Appellee's motion was error. The Commonwealth also maintains the trial court erred by engaging in a post-verdict factual redetermination which resulted in changing its original verdict of guilty to not guilty.

For the reasons which follow, we vacate the Order arresting judgment and remand for a consideration of whether or not a new trial pursuant to Appellee's Rule 1122 Motion for a New Trial should be granted.

The facts, but for one crucial exception, are undisputed. Appellee admitted at trial he had consumed alcohol while attending a party on December 31, 1985. On his way home he was involved in a one-car accident. The record indicates this incident occurred around midnight. Appellee received a ride back to the party and called his father for assistance. While waiting for his father to arrive, we are told Appellee ingested additional alcohol. This testimony was disputed at trial by the arresting officer who testified Appellee responded in the negative when asked whether he had consumed additional alcohol after his accident.

Thirty to forty minutes later, Appellee and his father returned to the scene of the accident where they observed a

[ 369 Pa. Super. Page 339]

State Trooper conducting an investigation of the incident. Having ascertained Appellee was the driver of the vehicle, and detecting an odor of alcohol on Appellee's breath, the Trooper proceeded to test Appellee's sobriety. Appellee failed to properly recite the alphabet and was placed under arrest. No other field sobriety tests were administered.

Approximately one and one-half hours after the accident, Appellee was asked to submit to an intoxilyzer test. Appellee's blood level exceeded 0.10% proscribed by statute on two separate readings of 0.121% and 0.127%. Testimony at trial revealed the standard deviation factor for these tests as 0.02%.

The trial court's standard of review for granting a motion in arrest of judgment is limited to a determination of absence or presence of that quantum of evidence necessary to establish the crime. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). The granting of Appellee's Motion was based on the ground that the evidence presented by the Commonwealth at trial was insufficient to establish the ...


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