Appeal from the Judgment of Sentence entered March 11, 1987, Court of Common Pleas, Montgomery County, Criminal Division at No. 0827-86.
Arthur L. Jenkins, Jr., Norristown, for appellant.
Mary MacNeil Killinger, Assistant District Attorney, Norristown, for Com., appellee.
Cirillo, President Judge, and Olszewski and Johnson, JJ. Cirillo, President Judge, files a dissenting opinion.
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Following a trial by jury the appellant, William B. Mahaney, was found guilty of driving under the influence in violation of 75 Pa.C.S. § 3731(a)(1). Post-verdict motions were denied and a forty eight (48) hour to twenty three (23) month sentence was imposed. Appellant appeals from this judgment of sentence. We affirm.
On January 4, 1986 Officer Theodore McGinley received a call at 1:56 a.m. reporting an accident with injuries on West Ridge Pike, Limerick Township, Montgomery County, Pennsylvania. He arrived at the scene about a minute later. Appellant was standing with two state troopers, both of whom left after McGinley arrived. Their identity is unknown. There were no witnesses to the single car accident.
McGinley testified that appellant's speech was slurred, that he smelled of alcohol and was obviously off balance. Appellant admitted he had been drinking.
At 2:30 a.m. appellant was taken by ambulance to Sacred Heart Hospital for treatment of a cut over his right eye. McGinley remained at the scene to investigate the accident.
Sometime after midnight but before the accident, McGinley had observed a saw-horse barricade with flashing lights five to six feet off the road in the grass. After the accident he found this barricade, along with other debris, in the middle of the road. McGinley found skid marks leading off the road to the right, twenty feet west of the intersection of Ridge and Country Club Road. There were also skid marks
[ 373 Pa. Super. Page 132]
through the place where the barricade had been, across Country Club Road, through a mailbox, across four trafficlanes to the other side and into two cut-off telephone poles which were in the dirt. There was a trail of mud from the two poles back across Ridge Pike onto the premises at 165 West Ridge Pike. The road was otherwise dry.
Shortly before 4:00 a.m. Officer McGinley arrived at the hospital, arrested appellant for driving under the influence and obtained permission to test appellant's blood for alcohol. Appellant submitted to the blood test in McGinley's presence and the sample was taken to the police station by McGinley. Dr. Paul Schweda, Director of National Medical Services tested the sample and found the blood alcohol concentration to be .17 percent by weight.
According to appellant's version of the facts he became intoxicated after the accident. While appellant was not sure of the exact time of the accident he assumed it to be around midnight. He was driving east on Ridge Pike when something crashed through his windshield causing him to lose control of his car. (It was later determined that it was the flashing sawhorse barricade). After the accident appellant moved the badly damaged car into a nearby parking lot to inspect it. He attempted to change a tire but did not have a lug wrench. He then walked to a friend's house where he met Bruce Waters. Appellant and Waters left the house with a six-pack of beer. Waters took one beer and left to search for a tow truck. Appellant returned to the car and drank the other five beers over the next hour while waiting for Waters to return. In the meantime, Officer McGinley arrived on the scene. At trial, appellant admitted drinking the five beers and having two glasses of scotch with dinner, earlier in the evening. Appellant denied being under the influence at the time of the accident.
Appellant was found guilty of driving under the influence of alcohol. In this appeal appellant raises the following issues:
I. DID THE COURT BELOW ERR IN FAILING TO GRANT DEFENDANT'S MOTION FOR A DIRECTED
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VERDICT BECAUSE THE COMMONWEALTH FAILED TO PROVE THE CRIME OF OPERATING A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL AS A MATTER OF LAW?*fn1
II. DID THE COURT BELOW ERR IN ALLOWING THE TESTIMONY OF AN EXPERT WITNESS WITH RESPECT TO BLOOD TEST RESULTS WHEN THE COMMONWEALTH FAILED TO PRODUCE THE MEDICAL TECHNICIAN WHO TOOK THE BLOOD TEST OR ESTABLISH THE CREDENTIALS OF THE TECHNICIAN BY INDEPENDENT EVIDENCE?
III. DID THE COURT BELOW ERR IN ALLOWING THE MEDICAL EXPERT TO TESTIFY ON THE ISSUE OF BLOOD TESTING WHEN NO PROPER FOUNDATION WAS LAID TO CONNECT THE TEST RESULTS TO THE TIME OF THE ACCIDENT?
Issues I and II both turn upon appellant's contention that the Commonwealth failed to establish the time of the accident and thus failed to establish the elements of the crime. Therefore, we will discuss the two issues together. Appellant was convicted of Driving ...