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Commonwealth v. Brigidi

July 6, 2009


Appeal from the Judgment of Sentence entered February 29, 2008, in the Court of Common Pleas, Montgomery County, Criminal, No. CP-46-SA-0001118-2007.

The opinion of the court was delivered by: McEWEN, P.J.E.



¶ 1 Appellant, Marc P. Brigidi, appeals from the judgment of sentence to pay a fine of $150.00, a sentence imposed after the trial court found him guilty of the summary offense of consuming alcoholic beverages while under the age of twenty-one years.*fn1 We vacate the judgment of sentence and remand this case for proceedings consistent with this Opinion.

¶ 2 On May 5, 2007, at approximately 11:00 p.m., Officer Christian Fiedler of the Upper Dublin Township Police Department and his partner investigated an alleged underage drinking party at a home located on Ft. Washington Avenue, Upper Dublin Township, Montgomery County, Pennsylvania. Upon entering the residence, Officer Fiedler observed numerous cases of beer, as well as beer and liquor bottles strewn throughout the house. The officers proceeded to "round up" nineteen persons who were in attendance at the party. Officer Fiedler then administered a breath test to each of the nineteen persons, using a "prearrest breath testing (PBT)" device. The PBT test of appellant registered a blood-alcohol content of .144%. Since appellant was then sixteen years of age, having been born on September 2, 1990, he was issued a summary citation for underage consumption of alcoholic beverages. Appellant challenged his citation and a hearing was held before a Magisterial District Judge on October 29, 2007, at the conclusion of which appellant was found guilty and ordered to pay a fine and costs. A timely appeal was filed with the Court of Common Pleas of Montgomery County, and the matter proceeded to a non-jury trial de novo on February 21, 2008. At that trial the Commonwealth's evidence consisted of a single witness, Officer Fiedler, who testified to the events of the night of May 5, 2007, the administration of the alcohol breath test, and the result obtained therefrom. On February 29, 2008, the trial judge issued a written verdict declaring appellant guilty, and imposing a fine of $150.00, plus the costs of prosecution. This appeal followed.

¶ 3 Appellant, in the brief filed in support of this appeal, presents the following questions for this Court's review:

Did the [trial] court err in admitting the findings of the PBT in the absence of testimony or evidence recording the machine's calibration, certification, and training as well as a sufficient foundation as to the method(s) employed during its use?

Did the [trial] court err in taking judicial notice by accepting a broad name, "Alco-Sensor," rather than the specific model?

Was the evidence sufficient to convict?

Did the testing of all party goers (nineteen total) without proper foundation or indicia of alcohol consumption, checking of mouth for contents, without further signs of alcohol consumption in the manner described constitute a suspicionless detention, while six confessed [sic] to not drinking, showed no signs of ingestion, but were also tested [constitutes] a search of all party goers without suspicion of any particular person(s)?

Brief of Appellant, p. 4.

¶ 4 We note at the outset of our consideration of these questions that, as urged by the Commonwealth, the brief filed by the appellant does not fully comply with the applicable Rules of Appellate Procedure. See: Pa.R.A.P. 2101; Commonwealth v. Maris, 629 A.2d 1014, 1017 (Pa.Super. 1993). However, since we can fairly discern that appellant is challenging (1) the decision of the trial court to admit the evidence obtained from the PBT device, and (2) the sufficiency of the evidence underlying his conviction, we will address those claims.*fn2

¶ 5 We tarry not with the sufficiency claim, since this Court has previously held that unrebutted evidence of alcohol ingestion obtained from a PBT device, in conjunction with evidence of a defendant's minority age, is sufficient to establish the offense of underage consumption of alcohol. See:

Commonwealth v. Breslin, 732 A.2d 629, 631 (Pa.Super. 1999), citing Commonwealth v. Allen, 684 A.2d 633 (Pa.Super. 1996).*fn3 Compare: Commonwealth v. Myrtetus, 580 A.2d 42 (Pa.Super. 1990) (PBT device reading is not admissible to establish level of alcohol for purposes of determining guilt for driving while under the influence of alcohol). The PBT reading of appellant's breath alcohol content was .144%, and appellant offered no evidence at trial. Thus, since the evidence introduced by the Commonwealth was not disputed, the contention that the evidence was insufficient is baseless. Therefore, appellant's only basis for relief is his ...

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