Appeal from the Judgment of Sentence January 16, 1987 in the Court of Common Pleas of Allegheny County, Criminal Division, No. 8608743.
Dennis I. Turner, Pittsburgh, for appellant.
Sean K. Code, Assistant District Attorney, Pittsburgh, for Com., appellee.
Rowley, McEwen and Popovich, JJ.
[ 373 Pa. Super. Page 498]
This is an appeal from the judgment of sentence imposed on a jury conviction for operating a motor vehicle in violation of 75 Pa.C.S. § 3731(a)(4), Driving Under the Influence. This case presents a novel question: Whether a defendant, whose application to suppress the results of an intoxilyzer test is denied as being untimely, is barred from presenting evidence at trial concerning an alleged history of malfunctions of the intoxilyzer unit where such evidence goes to the weight of the test results, rather than their admissibility. Having thoroughly reviewed the record and arguments, we vacate the judgment of sentence and remand for a new trial.
In the early morning hours of June 28, 1987, appellant was involved in a two-car accident in the Borough of Green Tree. At the scene, Officer James Markle of the Green
[ 373 Pa. Super. Page 499]
Tree Police Department detected an odor of alcohol on appellant's breath. Appellant was given a field sobriety test, which he failed. Officer Markle then drove appellant to the Public Safety Building in Pittsburgh, where appellant performed field sobriety tests in front of Officer David Waddle, a certified intoxilyzer operator. When appellant failed these tests, Officer Waddle administered an intoxilyzer test on appellant. Officer Waddle ran the test twice, resulting in readings of .110 and .119. Based upon these results, appellant was charged with two counts of Driving Under the Influence of Alcohol or a Controlled Substance, 75 Pa.C.S.A. §§ 3731(a)(1) and (4).
Appellant was formally arraigned on September 25, 1986. On October 24, 1986 appellant filed a timely Motion to Suppress Evidence alleging, inter alia, that (a) statements by him were not knowingly, intelligently and voluntarily made; (b) he did not receive his Miranda rights; (c) there existed no probable cause for his arrest; (d) he did not consent to the intoxilyzer test; (e) the test results were fruit of an illegal arrest; and (f) his constitutional rights were violated. Counsel for appellant admitted that he knew precisely which machine had been used to test his client, yet he did not challenge the accuracy of the machine in his motion. Argument on the Motion to Suppress was set for November 25, 1986, immediately after which, trial on the charges would proceed.
At argument on November 25, immediately prior to trial, appellant's counsel presented an Amended Motion to Suppress alleging that the intoxilyzer device on which appellant had been tested had malfunctioned at least eleven times during the two-month time period, April 19 through June 19, 1986. Appellant argued that the intoxilyzer machine should have been removed from service pursuant to 67 Pa.Code § 77.24(b)(2).*fn1 The Commonwealth argued that the Amended Motion should be denied because it was not timely filed. Appellant's counsel responded by stating that
[ 373 Pa. Super. Page 500]
the information contained in the Amended Motion had only become available to him on the previous day. Although not definitively described in the Amended Motion, the information concerning malfunctions appears to have been derived from accuracy and ...