Commonwealth v. Loeper

620 A.2d 25, 423 Pa. Super. 32, 1993 Pa. Super. LEXIS 593
CourtSuperior Court of Pennsylvania
DecidedFebruary 16, 1993
Docket605
StatusPublished
Cited by3 cases

This text of 620 A.2d 25 (Commonwealth v. Loeper) is published on Counsel Stack Legal Research, covering Superior 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. Loeper, 620 A.2d 25, 423 Pa. Super. 32, 1993 Pa. Super. LEXIS 593 (Pa. Ct. App. 1993).

Opinions

WIEAND, Judge:

Todd A. Loeper was tried by jury and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(4).1 In the same proceeding, the trial court, sitting as fact-finder, found Loeper guilty of the summary offense of reckless driving. Following the denial of post-trial motions, Loeper was sentenced on his drank driving conviction to serve a term of imprisonment for not less than six (6) days nor more than twelve (12) months, to pay fines and costs of prosecution and treatment in an amount of $1,015.00, and to perform community service for a period of forty (40) hours. Loeper was also sentenced to pay a twenty-five ($25.00) dollar fine for reckless driving. On direct appeal from the judgment of sentence, the principal issue is whether the evidence was sufficient to support the drank driving conviction in view of [35]*35the fact that appellant’s blood test had been administered approximately two hours after he had been stopped by police.

In reviewing a challenge to the sufficiency of the evidence we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, the jury could have found that each and every element of the charged offenses was proved beyond a reasonable doubt.” Commonwealth v. Sanchez, 416 Pa.Super. 160, 166, 610 A.2d 1020, 1023 (1992). See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

On September 28, 1990, at or about 12:40 a.m., Officer Ronald Mohl of the Leesport Police Department stopped a tractor trailer on Route 61 in Ontelaunee Township, Berks County. While Mohl was standing along the berm of the road, speaking with the operator of the vehicle which he had stopped, a red Chevrolet pickup truck sped past. A portion of the Chevrolet brushed Officer Mohl’s shoulder. Mohl ran to [36]*36his patrol car and summoned assistance. Officer Thomas Link, of the Maiden Creek/Ontelaunee Police Department, began pursuit of the red pickup truck. Shortly thereafter, he and Mohl were able to stop the red truck, which was being driven by Todd Loeper, the appellant. Loeper’s speech was very slurred, his eyes were bloodshot and watery, and he emitted an odor of alcohol. When asked to perform field sobriety tests, Loeper refused and demanded that he be given a blood test. Therefore, he was placed under arrest and taken to the Reading Hospital and Medical Center, where a blood sample was drawn at 2:42 a.m., about two hours after he had been stopped by police.

At trial, the Commonwealth called the director of the Department of Pathology at Reading Hospital, Dr. I. Donald Stuard, who testified that a blood serum test performed shortly after Loeper’s blood sample had been taken disclosed a blood alcohol content of .17%. On cross-examination, he conceded that when measured by whole blood, rather than by blood serum, appellant’s blood alcohol content would have been ,141%.2 Dr. Stuard testified further that the blood test results reflected appellant’s blood alcohol content at the time his blood was drawn and not at the time when he had operated his vehicle two hours earlier. The Commonwealth made no attempt to have Dr. Stuard relate the blood test results back to the time when appellant had been stopped by the police.

After the Commonwealth rested, the defense called, as an expert witness, Dr. John J. Spikes, a forensic toxicologist. Dr. Spikes testified regarding the normal rate at which alcohol is [37]*37absorbed into the blood stream and the variables which may affect that rate. In response to hypothetical questioning based upon appellant’s testimony regarding his weight and the timing and amount of alcohol and food appellant had consumed on the night of his arrest, Dr. Spikes said with respect to a person having the characteristics of appellant that it would be difficult to predict the blood alcohol level two hours before the test because at that time the blood alcohol level would still have been rising.

In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), the Supreme Court of Pennsylvania held evidence insufficient to show a violation of 75 Pa.C.S. § 3731(a)(4) where a blood test administered an hour after the defendant had been stopped produced a blood alcohol reading of .114% and it was unknown whether his blood alcohol content had been rising or falling at the time of the test. Without evidence relating the test results to the time of operating a vehicle, the Court concluded, a jury would be permitted “to engage in unbridled speculation as to whether [defendant’s] blood alcohol level was at or above .10% at the critical time.” Id. at 97, 601 A.2d at 1231. Similarly, in Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), where blood had been drawn one hour and fifty minutes following a vehicular accident, a test result of .108% was insufficient to show that the defendant had a blood alcohol content of .10% or greater at the time of the accident. Id. at 106-107, 601 A.2d at 1236.

In Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), the Superior Court had an opportunity to interpret and apply the Jarman and Modaffare

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Commonwealth v. Loeper
620 A.2d 25 (Superior Court of Pennsylvania, 1993)

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Bluebook (online)
620 A.2d 25, 423 Pa. Super. 32, 1993 Pa. Super. LEXIS 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-loeper-pasuperct-1993.