Commonwealth v. Stanley

629 A.2d 940, 427 Pa. Super. 422, 1993 Pa. Super. LEXIS 1963
CourtSuperior Court of Pennsylvania
DecidedJune 17, 1993
Docket547
StatusPublished
Cited by18 cases

This text of 629 A.2d 940 (Commonwealth v. Stanley) 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. Stanley, 629 A.2d 940, 427 Pa. Super. 422, 1993 Pa. Super. LEXIS 1963 (Pa. Ct. App. 1993).

Opinions

BECK, Judge.

In this appeal from the judgment of sentence for conviction of driving under the influence of alcohol, we consider for the first time whether a jury’s knowledge that an appellant was given a preliminary breath test constitutes error warranting the grant of a new trial. We hold that while such information is inadmissible and may provide cause for a new trial, the error here was harmless and the judgment of sentence is affirmed.

Appellant was convicted by a jury of driving while under the influence of alcohol to a degree which rendered her incapable of safe driving. 75 Pa.C.S.A. § 3731(a)(1). The jury was hung on the charge of driving with a blood alcohol level of .10% or greater, 75 Pa.C.S.A. § 3731(a)(4), and a mistrial was declared on that charge.1 Appellant challenges the ruling of the trial court permitting the district attorney to inform the jury that appellant was administered a preliminary breath test when she was stopped by police; further, appellant alleges error on the part of the trial judge for instructing the jury that while they would not hear and could not speculate about the results of the test, the purpose of the test was to assist an officer in deciding whether to make an arrest.

At trial, the Commonwealth relied on the testimony of Police Officer Robert Hartle who stated that he observed appellant proceeding through an intersection against a red light and pulled her over to issue a citation. Upon detecting a strong odor of alcohol on her breath and noting her eyes were glassy and red, Hartle asked appellant to exit her vehicle to perform three field sobriety tests. When Hartle testified that [425]*425he asked appellant to perform three tests, counsel for appellant objected and, at a sidebar discussion, moved the court to prohibit any testimony about one of the tests, the preliminary breath test (PBT). The district attorney requested that she be allowed to introduce the fact that the test was given and that appellant had failed it, without telling the jury the actual reading of the result. The trial court acknowledged that the result of the PBT was not admissible; however, it ruled that the prosecution could reveal to the jury that the test was given but could not elicit any further testimony about the it.

Hartle. then testified at length about appellant’s performance of the “one-legged stand” test, which she was unable to complete satisfactorily, and the “walk and turn” test, which she also failed. The district attorney asked Hartle if he administered any other tests to which he replied that he had given appellant a “preliminary breath test.” Hartle was not asked any other questions with respect to the test. At that point, the trial judge instructed the jury about the PBT and stated that the test was used by officers in the field to determine probable cause to arrest, that is, “to avoid making an arrest unless [there is] a good basis to make an arrest.” The court explained that PBT results are inadmissible at trial because they are not sufficiently reliable as the machine is not adequately tested or calibrated to render its results suitable for the jury’s consideration. The court informed the jury that they could:

consider that fact that the officer did use and administer it and, of course, it forms part of the basis for his opinion which he’ll probably express in a few minutes in this case. And you may consider the fact that he used it in the course of exercising proper procedures in making the arrest, but you should not speculate or consider the results as substantive evidence in this case as far as whether or not the blood alcohol was at a certain level.

Appellant objected to the court’s instruction, claiming that the instruction led the jury to conclude that appellant had failed the test. It is appellant’s position that the jury should not have been made aware of the test at all.

[426]*426It is clear, and the Commonwealth concedes, that the results of a PBT are not admissible at trial. Commonwealth v. Myrtetus, 397 Pa.Super. 299, 580 A.2d 42 (1990). The Myrtetus court noted that the PBT device, although approved by the Department of Health, is not tested or calibrated; therefore, its results are not admissible under 75 Pa.C.S.A. § 1547(c), which requires that breath, blood and urine tests be conducted by qualified persons using approved and regularly tested equipment in order for their results to be admissible. Id. at 308, 580 A.2d at 47. Further, the statute authorizing the use of PBTs states explicitly: “The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest.” 75 Pa.C.S.A. § 1547(k). In this instance we are faced with the question of whether the officer’s testimony that the test was given, and the trial court’s subsequent explanation of its purpose, requires a new trial.

Helpful to our analysis of this issue of first impression is the body of cases addressing polygraph tests. Like PBTs, the results of lie detector tests are inadmissible at trial due to their unreliable nature. Therefore, any reference to a lie detector test which raises an inference concerning the guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm, 443 Pa. 253, 269, 277 A.2d 325, 333 (1971). The mere mention of a lie detector test, however, does not constitute reversible error. In Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982), a prosecution witness mentioned that police wanted to give him a lie detector test to see if he was telling the truth. Our supreme court held that a new trial was not required because the question asked of the witness was not designed to elicit information about the test, the result was not mentioned, the answer was so vague that it was unclear whether the test was even administered and the trial court promptly instructed the jury to disregard the comment and not to speculate about the test. Id. at 264, 439 A.2d at 1171. Similarly, in Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986), appeal denied, 514 Pa. 630, 522 A.2d 558 (1987), a panel of this court held that an accidental [427]*427reference to a polygraph was not prejudicial because the reference was not sought by the prosecution and the testimony was stricken from the record. The Upchurch court also noted that the results were not revealed and it was not clear from the testimony that the test was given. Id. at 432-35, 513 A.2d at 998-99.

Appellant’s case is much different. Unlike in Miller and Upchurch, it is clear from the testimony of Officer Hartle that the test was administered to appellant. Further, the prosecution deliberately elicited from the officer the fact that the test was given. The testimony was not stricken from the record; indeed, the trial court specifically instructed the jury that they could consider the fact that the test is used to assist an officer in deciding whether to make an arrest. While the results of the test were not revealed, the instruction of the trial court certainly may have led the jury to conclude that appellant had failed the test.

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Cite This Page — Counsel Stack

Bluebook (online)
629 A.2d 940, 427 Pa. Super. 422, 1993 Pa. Super. LEXIS 1963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-stanley-pasuperct-1993.