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05/07/97 COMMONWEALTH PENNSYLVANIA v. DOUGLAS D.

May 7, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
DOUGLAS D. LEIGHTY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Westmoreland County, Criminal Division at No. 341 CRIM 1995. Before McCORMICK, J.

Before: Del Sole, Popovich and Hester, JJ. Opinion BY Popovich, J. Del Sole, J. Concurs in the Result.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED: MAY 7, 1997

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County, following appellant's conviction for driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(1). Upon review, we reverse and remand for a new trial.

Herein, appellant questions:

I. Was there sufficient evidence to convict appellant of driving under the influence of alcohol to a degree which rendered him incapable of safe driving?

II. Did the police officer have probable cause to stop appellant's vehicle?

III. Was the introduction of evidence of appellant's blood alcohol content of 0.17% which was later ruled inadmissible so prejudicial as to deny appellant a fair trial?

IV. Did the lower court err when it instructed the jury that the questions of guilt and penalty are decided separately by the jury and Judge respectively and when it refused to advise the jury of the mandatory penalty upon conviction?

After careful consideration, we find that there was sufficient evidence to support appellant's driving under the influence conviction, and there was probable cause for the police to stop appellant's vehicle. Nevertheless, we are convinced that appellant is entitled to a new trial since the inadmissible evidence of his blood alcohol content by weight of 0.17% was unduly prejudicial, especially when we consider that the evidence of his inability to drive safely, while sufficient to sustain his conviction, was not overwhelming. Having awarded a new trial to appellant, we need not address appellant's challenge to the jury instruction.

"In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all the reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt." Commonwealth v. Abdul-Salaam, 544 Pa. 514, 521, 678 A.2d 342, 345 (1996), quoting, Commonwealth v. Hughes, 536 Pa. 355, 361, 639 A.2d 763, 766 (1994).

"When we review the rulings of a suppression court that are in favor of the Commonwealth, we must determine whether the record supports the court's factual findings. In so doing, we consider only the evidence of the prosecution and so much of the evidence for the defense as, when fairly read in the context of the record as a whole, remains uncontradicted. Assuming that the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the legal Conclusions drawn therefrom are in error." Abdul-Salaam, 678 A.2d at 347, citing, Hughes, 639 A.2d at 769. *fn1

When we apply the foregoing standards, our review of the record reveals the following facts. On November 29, 1994, Officer Donald Cramer was on routine patrol near the intersection of Route 30 and Fairwood Drive in the Borough of Irwin, Westmoreland County. At approximately 12:25 a.m., Officer Cramer, while approaching the red light at the intersection, heard a loud crash which he believed was a motor vehicle colliding with something. Seconds later, appellant's vehicle appeared from behind a building which obscured the officer's vision. Appellant approached the intersection from the same direction which Officer Cramer believed ...


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