Commonwealth v. Brosnick

607 A.2d 725, 530 Pa. 158, 1992 Pa. LEXIS 290
CourtSupreme Court of Pennsylvania
DecidedMay 18, 1992
Docket22 Western District Appeal Docket 1990
StatusPublished
Cited by17 cases

This text of 607 A.2d 725 (Commonwealth v. Brosnick) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Brosnick, 607 A.2d 725, 530 Pa. 158, 1992 Pa. LEXIS 290 (Pa. 1992).

Opinions

OPINION OF THE COURT

PAPADAKOS, Justice.

This is an appeal from the memorandum opinion and per curiam order of the Superior Court affirming the order of the Court of Common Pleas of Westmoreland County which denied Albert Brosnick’s (Appellant’s) Motion For New Trial. The only question presented is whether the trial court abused its discretion in refusing to grant a new trial based upon alleged after-discovered evidence. The factual and procedural history which gave rise to Appellant’s request for a new trial can be summarized as follows.

On January 26, 1986, the Pennsylvania State Police arrested Appellant following an automobile accident and subjected him to an alcohol breath test at the Greensburg State Police Barracks. The level of Appellant’s blood alcohol level was read at .104% — four one thousandths of a percent over the legal limit — and consequentially, Appellant was charged with violating 75 Pa.C.S. § 3361 (Driving at a Safe Speed); 75 Pa.C.S. § 3731(a)(4) (Operating a Vehicle While the Amount of Alcohol by Weight ... was 0.10% or Greater); and 75 Pa.C.S. § 3731(a)(1) (Operating a Vehicle While Under the Influence of Alcohol).

Appellant was tried by a jury on July 7, 1986, before the Honorable Joseph A. Hudock of the Court of Common Pleas of Westmoreland County (now a Judge of the Superior Court) and was found guilty of violating 75 Pa.C.S. § 3361 and 75 Pa.C.S. § 3731(a)(4). The jury acquitted Appellant [161]*161of the third charge (75 Pa.C.S. § 3731(a)(1)) and post-trial motions were filed and denied.

Five months later, on December 10, 1987, counsel for the Appellant learned for the first time, through an article published in the Tribune Review, a newspaper of general circulation in Westmoreland County, that the State Auditor General, the Honorable Donald Bailey, had conducted an investigation of Systems Innovation, Inc., the company that manufactures items used to test the accuracy of breath testing machines employed in the Commonwealth. On December 11, 1987, counsel filed a Motion for New Trial claiming the report was after-discovered evidence which provided a basis to challenge the accuracy and/or the reliability of his breath test and that this evidence was not available using reasonable diligence at the time of trial. Not surprisingly, the Commonwealth maintained that the evidence was in existence prior to, or at the time of trial, and argued that it could have been discovered if defense counsel had exercised reasonable diligence.

The trial court agreed with the Commonwealth that the alleged report was discoverable at the time of trial and concluded that Appellant was not entitled to a new trial. The motion for new trial was denied and Appellant was sentenced. On appeal to the Superior Court, Appellant raised as his only issue whether the trial court erred in denying his new trial request. That court affirmed based on the trial court’s logic that since the evidence concerning the accuracy of the breath test was available at the time of trial it was discoverable, and the fact that it was difficult to gather such information did not put Appellant to the burden of using more than reasonable diligence in discovering this evidence prior to the conclusion of trial. We granted Appellant’s petition for allowance of appeal to examine whether the deficiencies outlined in the Auditor General’s report constitute the type of evidence which was discoverable through the use of reasonable diligence prior to the conclusion of the trial and was the type of evidence which would entitle a defendant to a new trial. Commonwealth v. [162]*162Brosnick, 395 Pa. Superior Ct. 649, 570 A.2d 585 (1989), and we now reverse.

It is well established that after-discovered evidence is the basis for a new trial only if it:

(1) has been discovered after the trial and could not have been obtained at, or prior to, the conclusion of the trial by the exercise of reasonable diligence;
(2) is not merely corroborative or cumulative;
(3) will not be used solely for impeaching credibility of a witness;
(4) is of such nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988); Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978) citing Commonwealth v. Mosteller, 446 Pa. 83, 88, 284 A.2d 786 (1971).

Furthermore, the proposed new evidence must be producible and admissible. Commonwealth v. Scott, 503 Pa. 624, 470 A.2d 91 (1983).

The evidence that Appellant desires the court to consider is a report which questions the accuracy of breath testing machines used in the Commonwealth. Specifically, the report, prepared by the Auditor General, attacks the credibility of the certificates of accuracy prepared by the manufacturer of all the simulator solution used to test the accuracy of each piece of Type A alcohol breath test equipment used by the State Police from 1982 to 1987. The report concluded with the startling statement that:

... Systems Innovation Inc. (the manufacturer) has been manufacturing simulator solution so poor in quality that it has jeopardized the credibility of the entire breath testing program in Pennsylvania. (Auditor General’s Report at p. 3)

Supporting its conclusion, the report lists various facts gleaned from the investigation conducted by the Auditor General. For example, at a surprise inspection of the manufacturer’s laboratory (located in the back room of a [163]*163Radio Shack store in Hallstead, Pennsylvania) quality control standards were found to be below the state and national levels. The manufacturer was found to be preparing the simulator solution from alcohol purchased from a local liquor store which was then mixed with filtered city water, instead of using pure, absolute ethyl alcohol. There were no written instructions given to employees concerning the production of the solution, nor were there any notes for the employees concerning the contents of the solution.

It was also discovered that the State Police receive shipments of the solution in bottles without expiration dates and without content certification certificates from independent testing laboratories. All of these deficiencies in the certification process led the investigators to conclude that the accuracy of certificates of simulator solution was unreliable.

The importance of the accuracy of simulator solutions is critical to the process of assuring that breathalyzer test results are correct. The Motor Vehicle Code, in fact, requires that approved testing equipment must be calibrated and tested for accuracy within a statutory time period in a manner specified by regulation. 75 Pa.C.S. § 1547(c).

67 Pa.Code § 77.6 requires that accuracy inspection tests are to be conducted upon testing devices at 30 day intervals.

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Bluebook (online)
607 A.2d 725, 530 Pa. 158, 1992 Pa. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brosnick-pa-1992.