Commonwealth v. Tau Kappa Epsilon

609 A.2d 791, 530 Pa. 416, 1992 Pa. LEXIS 361

• Court: Supreme Court of Pennsylvania
• Decided: May 20, 1992
• Docket: 51-61 M.D. Appeal Dkt. 1990
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

This is the appeal of eleven fraternities at Pennsylvania State University from the Superior Court order affirming the judgments of sentence entered following convictions for furnishing beer to minors in violation of Section 493(1) of the Liquor Code, 47 P.S. § 4-493(1). The Appellants challenge the judgments of sentence on the basis that the Commonwealth had failed to prove beyond a reasonable doubt that the beverages served were of the type prohibited by the statute.¹ We find that the Commonwealth did not present sufficient evidence to sustain the convictions and now reverse.

In October and November, 1986, Laurie Hazenstab and Ann Henry, members of the State College Bureau of Police Services, conducted an investigation of off-campus fraternity houses to ascertain whether alcoholic beverages were being served to minors. The plain-clothes investigators would enter randomly selected fraternity houses at which parties were being held. As former university students, the investigators had expired identification cards that they displayed at those fraternities restricting admission. Admissions were unrestricted at several fraternities.

Once inside, the investigators would approach the bar to obtain a beverage. When the investigators were served a beverage that had the appearance and taste of beer, they would observe the individuals who were being served at the bar. An individual who appeared to be under twenty-one would be kept under observation until he or she left the fraternity house.

One of the investigators would then follow, while the other investigator would signal to uniformed police officers who were waiting outside of the fraternity. The individual would be stopped and asked for identification. As a result of the investigation, several minors were convicted of or entered pleas of guilty to underage drinking. Charges for violations of the Liquor Code were brought against the twelve fraternities for furnishing beer to minors.

Section 493(1) of the Liquor Code provides that it is unlawful:

(1) For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.

47 P.S. § 4-493(1). “Malt or Brewed Beverages” is defined in the Liquor Code as “any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called.” 47 P.S. § 1-102.

The standard of review applied to determine whether the evidence introduced at trial is sufficient to sustain a conviction is

whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-473, 485 A.2d 1102, 1103 (1984).

The Appellants assert that an essential element of the offense charged is that the beverage served contained one-half of one percent or more of alcohol by volume and that the Commonwealth failed to introduce evidence to establish the alcoholic content of the beverage that was served to the minors. The Commonwealth argues that the testimony of the investigators and of several of the minors who were present at the fraternities that beer was served was sufficient to sustain the convictions.

No chemical analysis or other evidence establishing the alcoholic content of the beverages was introduced into evidence by the Commonwealth. The Commonwealth’s witness, Investigator Hazenstab, testified that she would request a beer at the bars of the fraternity houses and would taste the beverage that was served. The beverages were poured from a tap system. The witness testified that she was familiar with the taste of beer and that the liquids served to her appeared and tasted like beer.

The Superior Court concluded that the testimony of the investigator and the minors was sufficient to establish that the substances furnished to the minors were also beer. Commonwealth v. Tau Kappa Epsilon, et al. 385 Pa.Super. 247, 560 A.2d 786 (1989) (Popovich, J. dissenting). The court rejected the Appellants’ argument that the Commonwealth was required to perform a chemical test to establish the exact alcoholic content of the beverages served to the minors.

The issue presented is whether the testimony of the investigator and the minors was sufficient to establish the offense of serving malt or brewed beverages to a minor. We hold that the evidence was insufficient to sustain the Appellants’ convictions because the Commonwealth failed to prove beyond a reasonable doubt that the beverages contained one half of one percent or more of alcohol by volume. The percentage of alcohol by volume is an element of the criminal offense charged under the Liquor Code for furnishing malt or brewed beverages to minors.

The testimonial evidence relating to the type of beverage that was served which was introduced by the Commonwealth was insufficient to sustain the criminal convictions. Familiarity with the taste and appearance of beer does not provide the certitude achieved by proper scientific analysis.² The physical experience of drinking beer does not translate itself into an ability to ascertain what percentage of alcohol is contained in a liquid. Without evidence of the percentage of alcohol by volume contained in the beverages served to the minors, the criminal convictions of the Appellants must fail.³

The Commonwealth relies upon the Superior Court’s decision in Commonwealth v. Mazarella, 86 Pa.Super. 382 (1926). In Mazarella, the defendant was convicted of possessing and transporting intoxicating liquor. The defendant asserted that the trial court erred in refusing to direct a verdict for the defendant because it was not proved that intoxicating liquor was seized.

The Superior Court held that there was sufficient proof that the liquid found in the defendant’s possession was intoxicating liquor. The liquid had been exhibited to the jury for examination and two witnesses described it as whiskey. The defendant had made an inculpatory statement to a sheriff. The court stated that, “Their conclusion is supported, therefore, by sufficient evidence; whiskey is a well-known intoxicant.” 86 Pa.Super. at 385.

The Superior Court’s finding in Mazarella that the evidence was sufficient to sustain the conviction must be viewed in context of the offense charged. The offense of possession of intoxicating liquor did not require proof of a percentage of alcohol by volume. In the instant case, however, the specific definition of malt or brewed beverages provided under the Pennsylvania Liquor Code defines an element of the criminal offense charged as well.

The judgments of sentence are vacated.

McDERMOTT, J., files a dissenting opinion in which LARSEN, J., joins.

1 . The Appellants have raised an additional issue of whether the investigators’ entries into the eleven fraternities was illegal and whether evidence obtained as a result should have been suppressed. We will not address that issue in light of our disposition of the first issue.

2 . We take judicial notice of the fact that brewed beverages that have an appearance, and flavor similar to beer, but do not contain one half of one per cent or more of alcohol by volume, are available for sale. Indeed, some of those beverages do not have any alcoholic content.

3 . Despite Justice McDermott’s protestations that our holding today creates a roadblock in the resolution of the pressing problem of underage drinking, the burden placed upon the Commonwealth is minimal indeed. In this case, the beverage was not bottled. It was drawn from a keg and served in glasses to the investigators. The Commonwealth need only have preserved the evidence that its agents obtained or introduced evidence that demonstrated that the beverage served was identified as a beverage that contains the requisite percentage of alcohol by volume. We require no less in prosecutions for the possession or sale of drugs, even though an experienced police officer may be able to testify that the confiscated substance is in fact an illegal drug. Surely illegal drugs are no less a pressing problem than underage drinking.