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August 19, 1997


Appeal from the ORDER DATED October 7, 1996, in the Court of Common Pleas of ERIE County, CRIMINAL No. 1979 of 1995. Before JOYCE, J.

Before: Kelly, J.; Cercone, P.j.e.; and Olszewski, J. Opinion BY Olszewski, J. Kelly, J., Concurs in the Result. Cercone, P.j.e., Concurs in the Result.

The opinion of the court was delivered by: Olszewski


Filed August 19, 1997

This case calls upon us to explain the current status of the law concerning the admittance of blood alcohol content (BAC) test results and evidence of impairment in a trial for Driving Under the Influence of Alcohol (DUI) under 75 Pa.C.S.A. §§ 3731(a)(1), (a) (4).

The record reveals the following facts: At 2:45 A.M. on June 6, 1995, appellant Peter A. Phillips was driving a black Jeep when he traveled through a red light at the intersection of West 26th Street and Powell Avenue in Millcreek Township, Erie County. Consequently, Phillips collided with an automobile driven by Kale Schwartz. After Phillips and Schwartz exchanged driver's information, Schwartz watched as Phillips drove his car from the accident scene and parked in the driveway of a house in the 3900 block of West 26th Street. Phillips did not live at the house. Subsequently, Schwartz and his father, Richard, contacted the authorities and accompanied Patrolman Richard Skonieczka, of the Millcreek Police Department, to the accident scene. *fn1 The trio arrived at the scene at approximately 5:00 A.M. and Schwartz identified Phillips's vehicle still parked in the driveway with Phillips passed out behind the wheel.

The patrolman roused Phillips and immediately detected that appellant was emitting a strong order of alcohol. The officer also observed that Phillips had glassy, bloodshot eyes and could not maintain his balance. Based upon these observations, Patrolman Skonieczka administered the "one legged stand" and "heel to toe" field sobriety tests to appellant. Phillips failed both and was promptly placed under arrest for DUI. The arrest occurred at approximately 5:35 A.M. After being transported to the Millcreek Police Station for processing, Phillips was videotaped as he again failed the "one legged stand" test. He refused to retake the "heel to toe" test. At 6:22 and 6:24 A.M., Phillips was given breathalyzer tests for which he registered .148% and .146% BAC readings respectively.

On September 22, 1995, an information was filed charging Phillips with Driving Under the Influence of Alcohol pursuant to 75 Pa.C.S.A §§ 3731(a)(1),(a)(4) and (a) (5). *fn2 After numerous continuances, Phillips was scheduled for trial on October 7, 1996. On the date of trial, however, Phillips filed a motion in limine seeking to exclude any evidence of his breath test results and any testimony concerning his behavior and/or physical appearances at the time of his arrest. Phillips argued, in part, that since his BAC did not represent a significant departure from .10% and a significant period of time elapsed between when he last drove and when he was tested, the Commonwealth was required to present expert testimony relating the test results back to the time he was driving before he could be convicted of DUI. Since the Commonwealth did not intend to produce any such relation back evidence, Phillips alleged that the BAC test results were irrelevant and overly prejudicial. The trial court granted the motion in limine the same day it was filed. *fn3 The instant appeal follows.

Our standard of review when the trial court has granted a motion in limine against the Commonwealth is as follows:

"A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered." [ Commonwealth v. Johnson, 399 Pa. Super. 266, 269 582 A.2d 336, 337 (1990), aff'd, 534 Pa. 51, 626 A.2d 514 (1993)]. Our Court reviews the grant of such motion "by applying the [standard] of review appropriate to the particular evidentiary matter at issue." Id. We note that this Court may reverse rulings on the admissibility of evidence only if it is shown that the trial court abused its discretion. See Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied, 511 U.S. 1115, 114 S. Ct. 2123, 128 L. Ed. 2d 678 (1994). Further, if in reaching a Conclusion the trial court overrides or misapplies the law, "discretion is then abused and it is the duty of the appellate court to correct the error." Commonwealth v. Bellini, 333 Pa. Super. 526, 532, 482 A.2d 997, 999 (1984), quoting Prescott v. Prescott, 284 Pa. Super. 430, 435, 426 A.2d 123, 125 (1981).

Commonwealth v. Surina, 438 Pa. Super. 333, 337-338, 652 A.2d 400, 402 (1995).

Instantly, the trial court rationalized that "the circumstances of this case illustrate the necessity of producing evidence relating back the BAC test result to the time when [Phillips] was driving to sustain the Commonwealth's burden of proving beyond a reasonable doubt that [Phillips] drove while the amount of alcohol by weight in his blood was .10% or greater." Opinion, 1/6/97 at 4. Consequently, "given the lack of any relation back evidence to establish [Phillips's] BAC at the time he operated his vehicle, [the trial court] granted the . . . motion in limine." Id. We believe that the trial court misapplied the relevant law in certain respects and, accordingly, abused its discretion in ordering that the evidence be excluded from trial. Consequently, we reverse, in part, the order of October 7, 1995.

In certain respects, the trial court's analysis is accurate. The offense of DUI is set forth, in relevant part, as follows:

§ 3731. Driving under the influence of alcohol or controlled substance

(a) Offense defined.- A person shall not drive, operate or be in actual physical control of the ...

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