OPINION
NIX, Chief Justice.
Appellant, Herman Shade, appeals from the order of the Superior Court which affirmed the order of the court of common pleas which granted Appellant’s motion for a new trial but denied his motion in arrest of judgment. We granted allocatur in order to review the propriety of the relief granted by the trial court after it ruled that it gave an erroneous jury instruction. For the reasons that follow, we reverse the order of the Superior Court.
On April 10, 1990, at 2:37 a.m., Appellant was stopped by Officer Lutcher of the Milton Borough Police Department for failing to stop his vehicle at a flashing red signal. During the course of the stop, the officer detected a moderate odor of alcohol, observed that Appellant’s eyes were bloodshot, and noticed that Appellant had difficulty with respect to his speech and gait. Appellant admitted to Officer Lutcher that he had consumed three beers between the time of 1:30 a.m. and 2:15 a.m.
[349]*349Based on what he had observed and been told, Officer Lutcher requested that Appellant perform field sobriety tests. Appellant complied but did not perform the tests to the satisfaction of the officer. As a result, Appellant was taken to the Milton police station where he was given an intoxilyzer test. The first breath sample was taken at 3:23 a.m., forty-six minutes after the initial stop, and registered .157% blood alcohol content (“BAC”). The second sample was taken one minute later and registered .142%. The trial court noted that “[n]either the arresting officer nor the officer who had administered the test were [sic] qualified as an expert in order to testify at trial that the amount of alcohol by weight in [Appellant’s blood at the time he was driving was greater than .10%.” Commonwealth v. Shade, No. CR-90-411, slip op. at 2-3 (C.P. Northumberland County June 3,1992).
The trial court instructed the jury at the close of trial that the Commonwealth was not required to produce evidence to relate the results of Appellant’s intoxilyzer test back to the time that he was allegedly operating his vehicle. The jury subsequently found Appellant guilty of operating a vehicle while having a blood alcohol content of .10% or greater in violation of 75 Pa.C.S. § 3731(a)(4).1
Appellant filed timely post-verdict motions alleging, inter alia, that the trial court erroneously instructed the jury that the Commonwealth did not have to relate back the evidence of Appellant’s BAC to the time that he was driving his vehicle. In light of recent case law, the trial court agreed with Appellant’s challenge and granted a new trial but denied his motion in arrest of judgement.
In support of its ruling, the trial court cited Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), [350]*350wherein this Court reversed the judgments of sentence of two individuals convicted under 75 Pa.C.S. § 3731(a)(4). In those cases, we recognized the existence of a strong inference that an individual’s BAC would be beyond the permissible limit while driving when that individual possessed a BAC significantly above .10% and when the testing occurred shortly after the individual had driven his vehicle. However, there was no specific indication as to what BAC would be considered significantly above .10%, nor did we establish a temporal threshold for the lapse of time between driving and BAC testing. Based on this lack of specifically defined boundaries, the trial court in the instant case concluded that it could not grant a motion in arrest of judgment. Commonwealth v. Shade, No. CR-90-411, slip op. at 6.
In a supplemental opinion addressing the appropriateness of its post-verdict relief, the court noted that Appellant’s request for relief was phrased in the alternative, i.e. motion for a new trial or motion in arrest of judgement. Commonwealth v. Shade, No. CR-90-411, slip op. at 1 (C.P. Northumberland County July 29,1992). Faced with these alternatives, the trial court reasoned that fairness to both parties mandated the grant of a new trial in view of the prejudicial effect of arresting judgment against the Commonwealth and the absence of such prejudice to Appellant in granting a new trial. Id. It added that the grant of a new trial would permit both the Commonwealth and Appellant to proceed “in accordance with the existing caselaw.” Id. at 3.
On appeal, the Superior Court affirmed based upon the trial court’s original and supplemental opinions. Commonwealth v. Shade, No. 2130 Philadelphia 1992, 431 Pa.Super. 622, 631 A.2d 217 (Apr. 30, 1993). In so doing, it reaffirmed the fact that this Court has “ ‘drawn no bright lines between what it would consider to be a minimal upward departure [from .10% BAC] suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt.’ ” Id. at 3 (quoting Commonwealth v. Shade, No. CR-90-411, slip op. at 5-6 (C.P. Northumberland County June 3,1992)).
[351]*351The insufficiency of the evidence supporting Appellant’s conviction does not appear to be an issue in dispute among the parties. It is apparent that the trial court’s erroneous charge allowed the jury to base its verdict on unsubstantiated speculation. There was no evidence to support a finding that Appellant had a BAC of .10% while he was operating his vehicle. Thus, the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge. Based on our recent decision in Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995), we are compelled to conclude that the trial court should have granted Appellant’s motion in arrest of judgment.
In Loeper, the appellant had been convicted of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4) (operation of a motor vehicle with a BAC of 0.10% or greater). The Superior Court found that the inference of guilt was too weak to support the appellant’s conviction because his BAC did not represent a significant departure from the permissible limit and because there was a substantial delay prior to the administration of his BAC test. Thus, there was no evidence to relate back the BAC test results as required by Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992).
The Superior Court nevertheless went on to conclude that there was additional evidence from which the jury could have inferred that the appellant had operated his vehicle with a BAC in excess of the permissible limit. This evidence consisted of the testimony of two police officers who observed the appellant slur his speech at the time of his stop and the testimony of the appellant’s own expert that most people do not begin to show outward signs of intoxication until they achieve BAC of .15%.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
NIX, Chief Justice.
Appellant, Herman Shade, appeals from the order of the Superior Court which affirmed the order of the court of common pleas which granted Appellant’s motion for a new trial but denied his motion in arrest of judgment. We granted allocatur in order to review the propriety of the relief granted by the trial court after it ruled that it gave an erroneous jury instruction. For the reasons that follow, we reverse the order of the Superior Court.
On April 10, 1990, at 2:37 a.m., Appellant was stopped by Officer Lutcher of the Milton Borough Police Department for failing to stop his vehicle at a flashing red signal. During the course of the stop, the officer detected a moderate odor of alcohol, observed that Appellant’s eyes were bloodshot, and noticed that Appellant had difficulty with respect to his speech and gait. Appellant admitted to Officer Lutcher that he had consumed three beers between the time of 1:30 a.m. and 2:15 a.m.
[349]*349Based on what he had observed and been told, Officer Lutcher requested that Appellant perform field sobriety tests. Appellant complied but did not perform the tests to the satisfaction of the officer. As a result, Appellant was taken to the Milton police station where he was given an intoxilyzer test. The first breath sample was taken at 3:23 a.m., forty-six minutes after the initial stop, and registered .157% blood alcohol content (“BAC”). The second sample was taken one minute later and registered .142%. The trial court noted that “[n]either the arresting officer nor the officer who had administered the test were [sic] qualified as an expert in order to testify at trial that the amount of alcohol by weight in [Appellant’s blood at the time he was driving was greater than .10%.” Commonwealth v. Shade, No. CR-90-411, slip op. at 2-3 (C.P. Northumberland County June 3,1992).
The trial court instructed the jury at the close of trial that the Commonwealth was not required to produce evidence to relate the results of Appellant’s intoxilyzer test back to the time that he was allegedly operating his vehicle. The jury subsequently found Appellant guilty of operating a vehicle while having a blood alcohol content of .10% or greater in violation of 75 Pa.C.S. § 3731(a)(4).1
Appellant filed timely post-verdict motions alleging, inter alia, that the trial court erroneously instructed the jury that the Commonwealth did not have to relate back the evidence of Appellant’s BAC to the time that he was driving his vehicle. In light of recent case law, the trial court agreed with Appellant’s challenge and granted a new trial but denied his motion in arrest of judgement.
In support of its ruling, the trial court cited Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), [350]*350wherein this Court reversed the judgments of sentence of two individuals convicted under 75 Pa.C.S. § 3731(a)(4). In those cases, we recognized the existence of a strong inference that an individual’s BAC would be beyond the permissible limit while driving when that individual possessed a BAC significantly above .10% and when the testing occurred shortly after the individual had driven his vehicle. However, there was no specific indication as to what BAC would be considered significantly above .10%, nor did we establish a temporal threshold for the lapse of time between driving and BAC testing. Based on this lack of specifically defined boundaries, the trial court in the instant case concluded that it could not grant a motion in arrest of judgment. Commonwealth v. Shade, No. CR-90-411, slip op. at 6.
In a supplemental opinion addressing the appropriateness of its post-verdict relief, the court noted that Appellant’s request for relief was phrased in the alternative, i.e. motion for a new trial or motion in arrest of judgement. Commonwealth v. Shade, No. CR-90-411, slip op. at 1 (C.P. Northumberland County July 29,1992). Faced with these alternatives, the trial court reasoned that fairness to both parties mandated the grant of a new trial in view of the prejudicial effect of arresting judgment against the Commonwealth and the absence of such prejudice to Appellant in granting a new trial. Id. It added that the grant of a new trial would permit both the Commonwealth and Appellant to proceed “in accordance with the existing caselaw.” Id. at 3.
On appeal, the Superior Court affirmed based upon the trial court’s original and supplemental opinions. Commonwealth v. Shade, No. 2130 Philadelphia 1992, 431 Pa.Super. 622, 631 A.2d 217 (Apr. 30, 1993). In so doing, it reaffirmed the fact that this Court has “ ‘drawn no bright lines between what it would consider to be a minimal upward departure [from .10% BAC] suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt.’ ” Id. at 3 (quoting Commonwealth v. Shade, No. CR-90-411, slip op. at 5-6 (C.P. Northumberland County June 3,1992)).
[351]*351The insufficiency of the evidence supporting Appellant’s conviction does not appear to be an issue in dispute among the parties. It is apparent that the trial court’s erroneous charge allowed the jury to base its verdict on unsubstantiated speculation. There was no evidence to support a finding that Appellant had a BAC of .10% while he was operating his vehicle. Thus, the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge. Based on our recent decision in Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995), we are compelled to conclude that the trial court should have granted Appellant’s motion in arrest of judgment.
In Loeper, the appellant had been convicted of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4) (operation of a motor vehicle with a BAC of 0.10% or greater). The Superior Court found that the inference of guilt was too weak to support the appellant’s conviction because his BAC did not represent a significant departure from the permissible limit and because there was a substantial delay prior to the administration of his BAC test. Thus, there was no evidence to relate back the BAC test results as required by Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992).
The Superior Court nevertheless went on to conclude that there was additional evidence from which the jury could have inferred that the appellant had operated his vehicle with a BAC in excess of the permissible limit. This evidence consisted of the testimony of two police officers who observed the appellant slur his speech at the time of his stop and the testimony of the appellant’s own expert that most people do not begin to show outward signs of intoxication until they achieve BAC of .15%.
On appeal, this Court reversed the Superior Court based on our conclusion that the evidence was insufficient to support the appellant’s conviction under 75 Pa.C.S § 3731(a)(4). We found that the evidence of physical impairment was irrelevant insofar as it related to a prosecution for operating a vehicle [352]*352with a BAC of .10% or greater.2 Loeper, 541 Pa. at 402-03, 663 A.2d at 673-74. Accordingly, because the appellant’s conviction was not based on the requisite degree of evidence necessary to legally support such a conviction, his sentence was vacated. Id. at 403-04, 663 A.2d at 674.
Likewise, in the instant case, the evidence underlying Appellant’s conviction is insufficient as a matter of law. The jury was permitted to base its verdict on an erroneous instruction which relieved the Commonwealth of its burden of proving a material element of the offense set forth in 75 Pa.C.S. § 3731(a)(4). The Superior Court therefore erred in affirming the trial court’s grant of a new trial. The proper remedy in this case should have been to grant Appellant’s motion in arrest of judgment.3
The order of the Superior Court is reversed.
CAPPY, J., files a concurring opinion.
CASTILLE, J., files a dissenting opinion in which NIGRO and NEWMAN, JJ., join.