author: CAVANAUGH, Judge:

text:
    532 A.2d 1167
    In the Interest of Troy WILSON. Appeal of Troy WILSON.
    Superior Court of Pennsylvania.
    Submitted July 20, 1987.
    Filed Sept. 1, 1987.
    Reargument Denied Sept. 1, 1987.

      John Packel, Assistant Public Defender, Philadelphia, for appellant.
    Before CAVANAUGH, BECK and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

This is a challenge of an adjudication of delinquency on the basis of the insufficiency of the evidence. Appellant, Troy Wilson, was adjudicated delinquent following proceedings in which it was determined that he violated the provisions of 18 Pa.C.S.A. § 5121(d)(l)(i)—Escape. The particular provision at issue classifies the offense as a felony of the third degree where “the actor was under arrest for or detained on a charge of felony or following conviction of crime.” It was uncontested at trial that Wilson had been adjudicated delinquent because of a felony robbery offense and was in detention at the Youth Development Center at Cornwells Heights, Pennsylvania. He was given a two day home leave on February 18, 1985, but failed to return. It is also clear that the crime of escape includes “failure to return to official detention after temporary leave____” 18 Pa.C.S.A. § 5121(a) and that “official detention” includes detention in any facility for custody of persons found to be delinquent. 18 Pa.C.S.A. § 5121(e).

Appellant’s argument is that he was adjudicated delinquent as a juvenile and even though the adjudication was based upon commission of the felony offense of robbery, the language of the felony provision of the crime of escape does not extend to his transgression. We agree that under the only potentially applicable provision of the felony portion of the statute that appellant, a juvenile, was not under arrest for or detained on a charge of felony or following conviction of crime. The entire scheme of juvenile matters is that proceedings involving children be in the nature of delinquency hearings rather than criminal prosecutions. See 42 Pa.C.S.A. § 6332, 6334. Following hearing, the court may find the child to be delinquent. While evidence of facts which constitute an adult felony forms the basis for an adjudication of delinquency there is no provision for “convicting” an adjudicated juvenile of a “crime.” The effect of the adjudication of delinquency is clear:

§ 6354. Effect of Adjudication

(a) General rule.—An order of disposition or other adjudication in a proceeding under this chapter is no t a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.

42 Pa.C.S.A. § 6354(a) (emphasis added).

Belatedly, the Commonwealth argues on appeal that appellant was “detained” on a charge of felony. However, Wilson had already undergone his adjudication and was not at the time of his weekend pass being “detained on a charge.” Moreover, he had been detained on an allegation of delinquency not on a charge of a crime, a distinction which the provision defining the crimes of escape itself recognizes. See 18 Pa.C.S.A. 1521(e) Definition.

We conclude that appellant at the time of the offense alleged was not under arrest for or detained on a charge of felony or following conviction of crime and that his adjudication of delinquency must be vacated.

Order reversed.

      . The grading of the offense of escape provides:
      (d) Grading.—
      (1) An offense under this section is a felony of the third degree where:
      (i) the actor was under arrest for or detained on a charge of felony or following conviction of crime;
      (ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
      (iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
      18 Pa.C.S.A. § 5121(d)

      . Appellant concedes that the facts would support an adjudication of delinquency for escape as a second degree misdemeanor under § 5121(d)(2).

      . Our reading of the escape statute is supported by the court’s conclusion in Commonwealth v. Drawbaugh, 335 Pa.Super. 120, 483 A.2d 985 (1984) wherein a felony escape conviction was vacated since the defendant was arrested on non-felony charges. Similarly, the fair import of § 5121(d)(l)(i) cannot be read to include a juvenile adjudication as conviction of crime. See 18 Pa.C.S.A. § 105.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    532 A.2d 1168
    Clara L. BROCK, Appellant, v. James T. OWENS and Joseph F. Wusinich, III and E. Craig Kalemjian.
    Superior Court of Pennsylvania.
    Submitted July 13, 1987.
    Filed Sept. 8, 1987.
    Reargument Denied Sept. 8, 1987.

      Clara Brock, in propria persona.
    Richard L. Cantor, Paoli, for Owens, appellee.

      Dean R. Phillips, Pottsville, for Wusinich, appellee.
    Neil S. Witkes, Philadelphia, for Kalemjian, appellee.
    Before CIRILLO, President Judge, and HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the lower court granting appellees’ motion for a compulsory nonsuit. Appellant contends that the lower court erred in (1) granting the motion for a nonsuit after appellees had an opportunity to present evidence; (2) prohibiting her from calling expert witnesses; (3) changing its opinion and theory of the case; (4) prohibiting appellant from introducing all her evidence at trial; (5) allowing her deposition to be used at trial; (6) applying the doctrine of collateral estoppel to the issue of her exhaustion of administrative remedies; and (7) finding her liable for appellees’ counsel fees. For the reasons set forth below, we affirm the order of the lower court.

Appellant, a professor at Lincoln University, retained appellee E. Craig Kalemjian, an attorney, in October, 1981 to represent her in litigation charging the university with racial and gender discrimination. Kalemjian filed a complaint in that action in November, 1981 and, in December, 1981, discovered a conflict of interest and withdrew from the case. Appellant then retained appellee Joseph F. Wusinich III. Wusinich represented her until March, 1983, when appellant retained appellee James T. Owens. In July, 1983, the lower court dismissed appellant’s complaint for lack of subject matter jurisdiction. This Court affirmed the order in a per curiam memorandum. In April, 1985, appellant instituted the instant pro se malpractice action against appellees, alleging that all three negligently handled her lawsuit against the university. Appellees filed a motion for summary judgment. The lower court, although noting that any issue of material fact had been created by appellant’s unsupported assertions, denied the motion and thus gave appellant the opportunity to support her claims at trial. See Order, November 26, 1986. At a jury trial, appellees motioned for a compulsory nonsuit at the close of appellant’s case. The motions were granted. Appellant filed a written petition for removal of the nonsuit, which was denied, and this appeal followed.

Appellant first contends that the lower court erred in granting appellees’ motions for a nonsuit because they had presented evidence at trial. A court may grant a compulsory nonsuit only if “the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established.” Mazza v. Mattiace, 284 Pa. Superior Ct. 273, 277, 425 A.2d 809, 811-12 (1981). See also Rutter v. Northeastern Beaver County School Dish., 496 Pa. 590, 595, 437 A.2d 1198, 1200 (1981). A compulsory nonsuit may not be granted if the defendant has put on evidence. Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 382, 390 A.2d 736, 744 (1978). See also Pa.R.Civ.P. 230.1.

Thus, to avoid a compulsory nonsuit in the instant case, appellant was required to establish the following elements of legal malpractice:

1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.

Trice v. Mozenter, 356 Pa.Superior Ct. 510, 517, 515 A.2d 10, 13 (1986). In addition, a plaintiff must establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation. Id., 356 Pa.Superior Ct. at 517, 515 A.2d at 13.

Here, appellant called appellees as witnesses and testified herself at trial. No other witnesses were called on her behalf. Appellant testified that she had retained appellees to represent her in the underlying litigation and, thus, presented evidence in support of the first element of her cause of action. N.T. January 21, 1987 at 7, 9, 10. Appellant did not present any evidence, however, to establish that appellees failed to exercise ordinary skill and knowledge, that she would have prevailed in her lawsuit against Lincoln University, or that appellees’ failure to use ordinary skill and knowledge in handling her case was the proximate cause of her failure to prevail in that lawsuit. Accordingly, the jury could not have reasonably concluded that appellant had established all the elements of her malpractice action.

Appellant argues that the nonsuit was granted improperly, however, because appellees presented evidence before they motioned for a nonsuit. Appellant specifically objects to the fact that appellees’ attorney cross-examined her. On cross-examination, appellant was questioned regarding other lawsuits she had filed. We conclude that the information elicited from appellant on cross-examination is not “evidence” within the meaning of Razumic and Pa.R. Civ.P. 230.1 because it did not help appellees to establish a defense to appellant’s claim. Moreover, appellees motioned for a compulsory nonsuit immediately after appellant rested her case. Accordingly, because appellees had not yet presented evidence, the lower court’s grant of their motion was proper.

Appellant next contends that the lower court erred in prohibiting her from presenting expert witnesses. She argues that there v/ere three expert witnesses who would have helped to establish her claim. Appellant, however, failed to subpoena these witnesses to appear and, therefore, they were not present at trial. Our review of the notes of testimony reveals that at no time did appellant attempt to call expert witnesses nor did the lower court inform appellant that she could not do so. Accordingly, this claim is meritless.

Appellant next contends that the lower court erred in changing its opinion and theory of the case. In its order granting in part appellees’ preliminary objections, the lower court stated that: “We are satisfied that Plaintiff’s Amended Complaint contains all of the elements of legal malpractice, which if proven, would justify relief under the facts alleged therein.” Lower Court Opinion, March 3, 1986 at 4. Appellant argues that, because she did not prevail on her claim at trial, the lower court changed its opinion of the case from what it had stated on March 3, 1986. We disagree. In its March 3, 1986 opinion, the lower court stated only that appellant’s complaint was sufficient to prevent dismissal and that she had the burden to establish facts at trial to support her claim. As we have stated above, appellant failed to establish the necessary facts at trial. Accordingly, even if relief is theoretically available when a trial court changes its “opinion” of the merits of a claim, the lower court’s grant of a compulsory nonsuit was not inconsistent with its March 3, 1986 opinion.

Appellant next contends that the lower court erred in not allowing her to present all her evidence at trial. The record does not support this contention. At the close of appellant’s case, the trial judge asked her the following:

THE COURT: Any further evidence?
[APPELLANT]: Not now.
THE COURT: It’s now or never. Do you have anything else?
[APPELLANT]: Nothing.
THE COURT: Do you rest your case?
[APPELLANT]: Yes.

N.T. January 21, 1987 at 19. Thus, the lower court gave appellant the opportunity to present further evidence in support of her claim. Appellant further argues that the grant of the nonsuit deprived her of the opportunity to introduce evidence through her cross-examination of appellees. A plaintiff, however, has the burden of proving all essential elements of her cause of action during her case-in-chief. See Downey v. Weston, 451 Pa. 259, 268-69, 301 A.2d 635, 641 (1973); Klayman v. Southeastern Pa. Transp. Auth., 331 Pa.Superior Ct. 172, 178, 480 A.2d 299, 303 (1984). Accordingly, to avoid a compulsory nonsuit, appellant was required to present all her evidence in her case-in-chief.

Appellant next contends that the lower court erred in allowing her deposition to be used against her at trial. She argues that the deposition was inadmissible because it was prepared by a relative of a partner in one of the appellees’ law firm. Under the Rules of Civil Procedure, if a witness refuses to sign his or her deposition, the person before whom the deposition was taken shall sign it and state the reason for the witness’s refusal. Pa.R.Civ.P. 4017(c). The deposition may then be used at trial as if it were signed by the witness unless the trial court determines that the reason given requires rejection of it in whole or in part. Id.

Here, the letter accompanying appellant’s deposition was signed by Marion D’Ambrosio. George D’Ambrosio is a law partner of appellee Owens. Appellant was unable to demonstrate that the two are related and we are unable to find any evidence in the record to support that conclusion. Accordingly, the lower court correctly concluded that the reason for appellant’s refusal was frivolous and properly allowed the deposition to be used under Pa.R.Civ.P. 4017(c).

Appellant next contends that the lower court erred in prohibiting her from relitigating the issue of the exhaustion of her administrative remedies. She argues that the doctrine of collateral estoppel should not apply because appellees were not parties to the original litigation. We disagree.

Parties to a subsequent action need not be the same as those in the prior suit in order to raise the question of collateral estoppel. Collateral estoppel may be used as either “a sword or a shield” by a stranger to the subsequent action, as long as the party against whom the defense is invoked is the same.

Thompson v. Karastan Rug Mills, 228 Pa.Superior Ct. 260, 265, 323 A.2d 341, 344 (1974).

Here, appellant attempted to establish that she had exhausted her administrative remedies by complying with the grievance procedure required by her employment contract with Lincoln University. This issue was decided adversely to appellant in her prior lawsuit against Lincoln University. Although appellees were not parties to that lawsuit, appellant is bound by the determination that she failed to exhaust her administrative remedies because she had every opportunity during the first trial to establish her compliance with the grievance procedure. Thus, the lower court correctly denied appellant the opportunity to relitigate this issue at the present trial.

Appellant last contends that she is not liable for appellees’ counsel fees. We are unable to reach this issue because the lower court has not yet determined liability for counsel fees and has expressly reserved its decision on this issue pending the outcome of this appeal. See Opinion, May 6, 1987 at 3.

For the above-stated reasons, we affirm the order of the lower court.

Affirmed.

      . Under her employment contract, appellant was required to file a formal grievance within ten days of the challenged action. Compliance with the grievance procedure was a prerequisite to the filing of a complaint in a court of common pleas. Appellant instituted legal action against Lincoln University before complying with the grievance procedure. After her complaint was filed, appellant filed a formal grievance, which was between one and three years after the various challenged actions occurred. Accordingly, the lower court concluded that it lacked subject matter jurisdiction over the litigation because appellant had failed to exhaust her administrative remedies.

      . We are hindered in our review of the notes of testimony because appellant ordered the transcription of only her trial testimony. See Pa.R.A.P. 1911(a) (appellant shall order any required transcript).

      . Moreover, our review of the partial notes of testimony indicates that appellant’s deposition was never used against her at trial.


author: CERCONE, Judge:

text:
    532 A.2d 1172
    COMMONWEALTH of Pennsylvania v. Eugene M. BOLDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 15, 1987.
    Filed Oct. 13, 1987.

      William L. Howard, Malvern, for appellant.
    Glenn E. Davis, Assistant District Attorney, West Chester, for Com., appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   CERCONE, Judge:

The question for decision in this appeal is whether the sentencing court correctly scored a prior foreign state conviction in calculating the prior record score of the appellant. We conclude that the court below did assign the correct prior record score to the appellant’s out-of-state conviction and therefore affirm the judgment of sentence. The pertinent facts and our analysis follow.

Appellant was convicted of burglary, attempted rape, indecent assault and simple assault on May 23, 1985 following a jury trial. After denying appellant’s post-verdict motions, the trial court sentenced appellant on October 16, 1986 to period of incarceration of 5-10 years for attempted rape and 2-4 years concurrently for burglary. In calculating appellant’s prior record score for purposes of sentencing, the trial court assessed two points for a previous conviction of burglary in Pennsylvania and two additional points for a prior conviction of attempted burglary in Colorado. Based upon a total prior record score of four points, appellant was sentenced within the minimum ranges of the Sentencing Guidelines. A Motion for Reconsideration and/or Modification of Sentence filed by appellant was denied by the sentencing court on January 2, 1987. This timely appeal followed.

On appeal, appellant avers that the sentence imposed was illegal, excessive and outside of the Sentencing Guidelines. Specifically, he asserts that the trial court improperly applied section 303.7(d) of the guidelines relating to out-of-state, federal, or former Pennsylvania offenses. Section 303.7(d) of the guidelines provides:

A prior out-of-state or Federal conviction or adjudication of delinquency, or a prior conviction or adjudication of delinquency under former Pennsylvania law, is scored as a conviction for the current equivalent Pennsylvania offense. When there is no current equivalent Pennsylvania offense, prior out-of-state or Federal convictions or adjudications of delinquency are scored as non-weapons misdemeanors. When there is no current equivalent Pennsylvania offense to a conviction or adjudication of delinquency under prior Pennsylvania law, apply subsection (h).

204 Pa.Code § 303.7(d) (effective June 5, 1986). Since appellant was convicted on May 21, 1983, however, his prior record score was based upon the original version of section 303.7(d) which stated: “The scoring of prior out-of-state offenses is governed by application of Pennsylvania statutory offense classifications and definitions.” Id. (effective July 22, 1982 to January 1, 1986). The Sentencing Commission has commented that this section was expanded to its present version in order “to provide greater clarity and precision” in calculating the prior record score. Pa.C. Sent. 2d (September 1, 1986) at 59. The Commission has further observed that the amendment to section 303.7(d) “did not change the procedure for scoring these offenses.” Id. We accordingly determine that the same standard of construction applies to both the present and former versions of section 303.7(d).

In order to properly construe the Sentencing Guidelines, we must be guided by the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.

That act provides that the object of all statutory construction is to ascertain the intent of the legislature, and that the legislature’s intent may be ascertained by considering the necessity for the statute, the mischief to be remedied, the object to be attained, and the consequences of a particular interpretation; that the legislature does not intend a result that is unreasonable, and intends to favor the public interest over any private interest; and that statutes such as 53 P.S. § 39351 “shall be liberally construed to effect their objects and to promote justice.” 1 Pa.C.S.A. §§ 1921, (c)(1), (3), (4), (6); 1922(1), (5); 1928(c).

Hollman v. Hollman, 515 Pa. 288, 528 A.2d 146 (1987). The legislative history of the Sentencing Guidelines indicates that they were developed with the goals of promoting uniformity and fairness in sentencing. Consonant with these goals, the Commission observed that

[f]airness required that the prior record score include convictions and adjudications of delinquency from other states and from the United States courts, even though a rule on this topic will sometimes be cumbersome to apply. To do otherwise would have treated some defendants as first offenders merely because they had committed their crimes in another jurisdiction. In addition, failing to provide a rule would have resulted in differing interpretations and inconsistency about how these prior convictions and adjudications are considered.

Pa.C. Sent. 2d (September 1, 1986) at 59. In drafting section 303.7(d), of the guideline, moreover, the Commission recognized that criminal conduct may be characterized differently by various jurisdictions. Id. We find, for instance, no uniform national definition of “felony” and “misdemeanor.” W. LaFave & A. Scott, Handbook on Criminal Law, § 6, at 26-27 (1972). Nevertheless, the Sentencing Commission “considered it important to count all non-Pennsylvania crimes systematically____” Pa.C. Sent. 2d (September 1, 1986) at 59. To this end, the Commission instructed:

In order to ensure that the guidelines provided instruction about scoring foreign convictions consistently, the commission decided to use “the current equivalent Pennsylvania offense” as the standard for scoring. Whenever possible, prior foreign convictions and adjudications of delinquency are to be scored in the light of Pennsylvania law, although the commission recognizes the difficulties in establishing the equivalence of statutes.

Id. (emphasis added). Thus, when calculating a prior record score based upon a foreign state conviction, a conviction under federal law or a conviction for an offense under a former Pennsylvania law, we are required to score such a conviction as we would a “current equivalent Pennsylvania offense.” 204 Pa.Code § 303.7(d). In those instances where there is no current equivalent offense under Pennsylvania law—either as a result of the difference between federal and state jurisdiction or because of the lack of conformity between different states’ methods of categorizing offenses—the prior out-of-state crime is to be scored as a non-weapons misdemeanor. The focus of our analysis in this matter then is to determine if an out-of-state crime for which the appellant is convicted comes within the definition of an equivalent crime in Pennsylvania and the proper procedure for determining what constitutes an equivalent Pennsylvania offense.

In assessing the quality of a prior conviction in a foreign jurisdiction, we discern from the purpose and language of the guidelines that it was the intent of the Sentencing Commission as well as the legislature that offense equivalency be considered in terms of the nature and definition of the offense in light of the record of the foreign conviction. This approach requires a sentencing court to carefully review the elements of the foreign offense in terms of the classification of the conduct proscribed, its definition of the offense, and the requirements for culpability. Accordingly, the court may want to discern whether the crime is malum in se or malum prohibitum, or whether the crime is inchoate or specific. If it is a specific crime, the court may look to the subject matter sought to be protected by the statute, e.g. protection of the person or protection of property. It will also be necessary to examine the definition of the conduct or activity proscribed. In doing so, the court should identify the requisite elements of the crime—the actus reus and mens rea—which form the basis of liability.

Having identified these elements of the foreign offense, the court should next turn its attention to the Pennsylvania Crimes Code for the purpose of determining the equivalent Pennsylvania offense. An equivalent offense is that which is substantially identical in nature and definition as the out-of-state or federal offense when compared with Pennsylvania offense. The record of the foreign conviction will be relevant also when it is necessary to grade the offense under Pennsylvania law or when there are aggravating circumstances. Where there is no equivalent offense, the prior foreign conviction is scored as a current Pennsylvania non-weapons misdemeanor in accordance with section 303.7(h). 204 Pa.Code § 303.7(h) (relating to incomplete prior records for Pennsylvania convictions).

In the instant case, the sentencing court concluded that appellant had been convicted in Colorado of attempted second degree burglary and that the current equivalent Penn sylvania offense was criminal attempt (burglary). We begin our analysis by considering the elements and definition of the Colorado offense.

As indicated by the record, appellant pleaded guilty in Colorado to criminal attempt and burglary in the second degree. In Colorado,

[a] person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actors’ purpose to complete the commission of the offense.

Colo.Rev.Stat. § 18-2-101(l). A person commits a second degree burglary in Colorado “if he knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property.” Id. § 18-4-203(l).

By way of comparison, in Pennsylvania “[a] person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901. Although the Crimes Code does not define “substantial step,” our courts have focused on what measures the actor has already undertaken in pursuance of the crime which indicate his or her resolve toward the commission of that crime. See Commonwealth v. Fairell, 476 Pa. 128, 381 A.2d 1258 (1977); Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984); Commonwealth v. Gilliam, 273 Pa.Super. 586, 417 A.2d 1203 (1980); Commonwealth v. Corbin, 251 Pa.Super. 512, 380 A.2d 897 (1977). A person commits a burglary in Pennsylvania “if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(a). Burglary is graded as “a felony of the first degree.” Id. § 3502(c). “An attempt ... to commit ... a felony of the first degree is a felony of the second degree.” Id. § 905(a).

Our comparison of the Colorado and Pennsylvania penal statutes leads us to the conclusion that the court below was correct in deciding that criminal attempt (burglary) was the current equivalent Pennsylvania offense to appellant’s Colorado conviction for attempted second degree burglary. Both the Colorado and Pennsylvania criminal attempt statutes share identical elements as to the actus reus—a substantial step toward the commission of the underlying crime—as well as to the men rea—specific intent to commit the underlying offense. Additionally, we are satisfied that the underlying specific offense of burglary is equivalent in Colorado and Pennsylvania. Both statutes require an entry into or occupation of a building or occupied structure with the specific intent to commit a crime therein. Once again, there is identity of both nature and definition and therefore offense equivalency. Since the fundamental inquiry is to the elements of the offense, it is irrelevant that Pennsylvania has but one grade for burglary.

Application of the Pennsylvania Sentencing Guidelines yields a prior record score of two for the Colorado conviction. 204 Pa.Code § 303.7(b)(2)(ii). This was the calculation made by the court below and we find that the prior record score was correctly determined. Since the prior record score is correct and the sentence imposed was within the guidelines the sentence is neither excessive nor illegal. Hence, the judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3502

      . Id. § 901

      . Id. § 3126

      . Id. § 2701

      . The convictions for indecent assault and simple assault were merged as lesser included offenses for sentencing purposes.

      . Colo.Rev.Stat. § 18-2-101.

      . 42 Pa.C.S.A. § 9721, 204 Pa.Code § 303.1-303.9.

      . See Pa. House LegJ., Sept. 21, 1978, at 3130 ("The purpose of the amendment is to make criminal sentences more rational and consistent, to eliminate unwarranted disparity in sentencing, and to restrict the unfettered discretion we give to the sentencing judges.”) (Rep. Scirica); Pa.Sen.LegJ., Apr 8, 1981, at 401 (“[W]e ... create[d] a set of guidelines ... that would insure ... to shrink the disparity between sentences ... [and] ... to create sentencing guidelines with ranges of sentencing____”) (Sen. Gekas). For a discussion of the policies and legislative history of the guidelines, see generally Martin, Interests and Policies in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill.L.Rev 21 (1984).

      . In the alternative,
      [t]he commission considered: (1) using the grade of the offense in the jurisdiction of conviction, or (2) assigning the Pennsylvania grade that was equivalent to the maximum penalty for the crime in the foreign jurisdiction or which corresponded to the sentence actually imposed. However, these solutions would have been inequitable because jurisdictions disagree on offense seriousness and on terminology (for example, in some places a felony is defined as a crime punishable by a year or more) and states differ in their sentencing patterns. If the commission had adopted this rule, defendants would have scored differently depending on where they committed their past crimes. This would contravene the expressed intent of the guidelines to reduce disparity.
      Pa.C. Sent. 2d (September 1, 1986) at 59.

      . The only other reported appellate opinion which construed section 303.7(d) involved a prior conviction under a repealed statute. In Commonwealth v. Maleno, 348 Pa.Super. 426, 502 A.2d 617 (1985), the defendant was convicted of simple and aggravated assault. In computing the sentence, the trial court assigned a prior record score of one to defendant’s robbery conviction under a former Pennsylvania statute. That statute contained only one grading of robbery as a first degree felony which was entitled under the guidelines to a score of three. This court held that the trial court had incorrectly valued the prior conviction by referring to the more recent robbery statute which provided far lesser grades. The court did not articulate a method of determining offense equivalency but held that there was no justification for the lower court’s translation of the previous felony-one grade conviction into a lesser category.

      . 18 Pa.C.S.A. § 101-9183.

      . For cases applying this section, see People v. Derrera, 667 P.2d 1363 (Colo.1983) (defining criminal attempt); People v. Ledman, 622 P.2d 534 (Colo.1981) (analyzing the “substantial step” requirement); Allen v. People, 175 Colo. 113, 485 P.2d 886 (1971) (discussing intent to commit a specific crime); Johnson v. People, 174 Colo. 413, 484 P.2d 110 (1971) (defining the overt act requirement).

      . For cases applying this section, see People v. Diaz, 182 Colo. 369, 513 P.2d 444 (1973) (observing that the actor must have no lawful right to be in the building); People v. Archuleta, 180 Colo. 156, 503 P.2d 346 (1972) (noting the requirement of specific intent).

      . For cases applying this section, see Commonwealth v. Tessel, 347 Pa.Super. 37, 500 A.2d 144 (1985); Commonwealth v. Atkins, 232 Pa.Super. 206, 335 A.2d 375 (1975); Commonwealth v. Garrett, 229 Pa.Super. 459, 323 A.2d 314 (1974).


author: BECK, Judge:

text:
    532 A.2d 1177
    COMMONWEALTH of Pennsylvania v. Bryan BAXTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1987.
    Filed Oct. 19, 1987.

      Joseph Alessandroni, Jr., Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com.
    Before BECK, JOHNSON and CERCONE, JJ.
   BECK, Judge:

This is an appeal by Bryan Baxter from a judgment of sentence of six to twelve years imprisonment. We conclude that the judgment of sentence must be affirmed.

On September 14, 1984, Bryan Baxter and his companion Walter Huot forced Michael M., a fifteen year old boy, to engage in oral and anal intercourse. This incident occurred at the Philadelphia Youth Study Center where Baxter, Huot, and Michael M. had been detained in connection with unrelated criminal conduct. A few days after the assault, Gregory Allen, a counselor employed by the Youth Study Center, questioned Baxter without first informing him of his right to remain silent. Baxter then made an inculpatory statement.

Baxter and Huot were both charged in connection with the sexual abuse of Michael M. and held for trial. Defense counsel filed a motion to suppress Baxter’s statement to Allen. On May 6, 1985, the suppression court determined that Baxter’s statement was voluntary, but the court granted the suppression motion on the grounds that Allen erred by failing to advise Baxter of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This ruling is not before us on appeal.

During the following three days, Baxter and Huot were jointly tried by a jury in the Philadelphia Court of Common Pleas. Although Huot did not testify, Baxter took the stand and denied that he had seen either Huot or Michael M. on the night of the assault. In rebuttal, the prosecutor called Gregory Allen who testified that “He [Baxter] said he was involved [in the assault] and the other defendant [Huot] was possibly involved too.” N.T. May 8,1985 at 129. At the close of the trial, the jury convicted both Baxter and Huot of involuntary deviant sexual intercourse and criminal conspiracy.

Following the denial of post trial motions and the imposition of sentence, counsel for Baxter filed this timely appeal. Counsel raises three allegations of error which we find are without merit.

First, counsel argues that the trial court erred by permitting Commonwealth witness Allen to impeach Baxter’s testimony by referring to the suppressed statement. It is true that in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), the Court held that under article 1 section 9 of the Pennsylvania Constitution a statement obtained in violation of Miranda could not be admitted at trial even for the limited purpose of impeaching the defendant. However, on November 6, 1984, during the period between when appellant confessed to the crime and the time of his trial, an amendment to article 1 section 9 was adopted which provides: “The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.” This amendment limited the application of the Triplett decision. The use of a voluntary confession for impeachment is not a violation of either the Pennsylvania Constitution as currently revised or of the fifth amendment of the United States Constitution. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The trial court acted properly and in accordance with the state and federal constitutions by allowing Allen’s testimony.

Counsel maintains that the state constitutional amendment applies only to statements which an accused has made following the date of its adoption. We disagree. There is no principled basis for distinguishing between a confession which was improperly obtained by the Commonwealth before November 6, 1984, and a confession which was improperly obtained by the Commonwealth after November 6, 1984. The text of the amendment does not refer to the time at which the confession was originally given; the amendment instead focuses on the use of the confession at trial. The use of Baxter’s confession to rebut his trial testimony occurred in May, 1985, over six months after the amendment went into effect.

We note that this case does not present the more difficult question of whether article 1 section 9 as amended should be applied retroactively to confessions which were introduced at trial prior to November 6, 1984. We need not decide if a conviction which was originally procured in violation of the defendant’s trial rights under Triplett should be upheld on appeal in light of the subsequent change in the state constitution.

Counsel next argues that the prosecution violated the confrontation clause by failing to instruct the Commonwealth witness to delete all references to co-defendant Huot from Baxter’s inculpatory statement. Counsel relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), which held that a confession by a non-testifying codefendant which directly implicates the defendant may not be admitted into evidence at a joint trial. Baxter’s confrontation rights were not violated because no statement by Huot was admitted at trial. Moreover, we need not consider whether Huot’s confrontation rights were violated since Baxter lacks standing to raise this issue. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977).

Finally, counsel argues that the trial judge should have declared a mistrial when during cross-examination the prosecutor elicited from Baxter the fact that Baxter had been imprisoned at another facility prior to his arrival at the Youth Study Center. We conclude that the prosecutor’s error was harmless for the reasons specified in the opinion of the lower court. Trial Court Op. at 4-6.

Judgment affirmed.


author: WIEAND, Judge:

text:
    532 A.2d 1179
    Mary Jane GALLAGHER, Administratrix of the Estate of William E. Gallagher, Deceased, Appellant, v. Dr. ING, H.C.F. Porsche KG and Foreign Wheels, Inc. and Bob Fox t/a Bob Fox Porsche Service, Appellees. Mary Jane GALLAGHER, Administratrix of the Estate of William E. Gallagher, Deceased, Appellant, v. VOLKSWAGEN OF AMERICA, INC., Foreign Wheels, Inc. and Bob Fox t/a Bob Fox Porsche Service, Appellees.
    Superior Court of Pennsylvania.
    Argued May 6, 1987.
    Filed Oct. 20, 1987.

      Francis J. Moran, Philadelphia, for appellant.

      Joseph V. Pinto, Philadelphia, for appellees.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

William E. Gallagher was killed when the Porsche which he was operating failed to negotiate a curve in a narrow road, left the roadway, struck a stone wall, and careened back into the roadway where it collided with an oncoming vehicle. In subsequent death actions the administratrix of his estate contended that the Porsche had been defectively designed. Volkswagen of America, Inc., the manufacturer, denied that there had been a design defect and presented evidence that Gallagher had lost control of the vehicle because he was intoxicated. The jury which heard the case returned a verdict in favor of the manufacturer, finding specifically that the vehicle had not been designed defectively. Post-trial motions were denied, and judgment was entered on the verdict. The administratrix of the decedent’s estate appealed. We affirm.

The accident occurred on February 6, 1979 at or about 9:00 p.m. on Morris Road, a narrow, winding road in Whit-pain Township, Montgomery County. Witnesses testified that Gallagher had passed them at a high rate of speed approximately one mile from the scene of the accident and had accelerated after completing the pass. An analysis of a blood sample removed shortly after Gallagher had been pronounced dead revealed a blood alcohol content of .18 percent. Prior to the accident, Gallagher had been with friends where, during a period of approximately one hour and a half, he had been drinking scotch. A toxicologist opined, based on the alcoholic content of the decedent’s blood, that he must have had at least six or seven drinks and was unfit to drive a motor vehicle.

Appellant moved pre-trial to exclude evidence of her decedent’s consumption of alcohol on the day of the accident. The trial court received an offer of proof and on the basis thereof held that the evidence, if believed by a jury, was sufficient to show that Gallagher had been unfit to drive a vehicle safely. Therefore, the court ruled, the evidence was admissible. Appellant argues on appeal that the receipt of this evidence was erroneous.

In Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956), the Supreme Court pronounced the applicable law as follows:

[Wjhile proof of intoxication is relevant where reckless or careless driving of an automobile is the matter at issue, the mere fact of drinking intoxicating liquor is not admissible, being unfairly prejudicial, unless it reasonably establishes a degree of intoxication which proves unfitness to drive.

Id., 386 Pa. at 148, 125 A.2d at 476. See: Billow v. Farmers Trust Co., 438 Pa. 514, 516-517, 266 A.2d 92, 93 (1970); Morreale v. Prince, 436 Pa. 51, 52, 258 A.2d 508, 508 (1969); Cook v. Philadelphia Transportation Co., 414 Pa. 154, 159, 199 A.2d 446, 448 (1964); Balla v. Sladek, 381 Pa. 85, 93, 112 A.2d 156, 160 (1955); Critzer v. Donovan, 289 Pa. 381, 384-385, 137 A. 665, 666 (1927); Hawthorne v. Dravo Corp., 352 Pa.Super. 359, 369, 508 A.2d 298, 303 (1986); Ackerman v. Delcomico, 336 Pa.Super. 569, 574-575, 486 A.2d 410, 413 (1984); Emerick v. Carson, 325 Pa.Super. 308, 313, 472 A.2d 1133, 1135 (1984); Couts v. Ghion, 281 Pa.Super. 135, 143, 421 A.2d 1184, 1188-1189 (1980); Cusatis v. Reichert, 267 Pa.Super. 247, 249-250, 406 A.2d 787, 788-789 (1979); Schwarzbach v. Dunn, 252 Pa. Super. 454, 461, 381 A.2d 1295, 1298 (1977). In Billow v. Farmers Trust Co., supra, the Court, by applying this standard to a case involving a fatal collision, held that an opinion by a physician that the decedent’s blood alcohol content of .14 percent would have been sufficient “to affect his driving” was properly excluded because it failed to show “ ‘a degree of intoxication which proves unfitness to drive.’ ” Id. 438 Pa. at 517, 266 A.2d at 93, quoting Morreale v. Prince, supra.

Where the evidence of intoxication is such as to demonstrate an unfitness to drive, however, the evidence is admissible. “Our legislature has expressly approved the blood alcohol test as a means of determining whether a person is driving under the influence of intoxicating beverages. Indeed, a blood alcohol content of .10 percent or more of weight raises a presumption of intoxication. 75 Pa.C.S. § 1547(d)(3).” Cusatis v. Reichert, supra 267 Pa.Super. at 251-252, 406 A.2d at 789-790. See: Beneshunas v. Independence Life & Accident Insurance Co., 354 Pa.Super. 391, 396, 512 A.2d 6, 8 (1986); Ackerman v. Delcomico, supra 336 Pa.Super. at 575-577, 486 A.2d at 414; Emerick v. Carson, supra 325 Pa.Super. at 313-314, 472 A.2d at 1135-1136; Couts v. Ghion, supra 281 Pa.Super. at 143-145, 421 A.2d at 1188-1189; Schwarzbach v. Dunn, supra.

It has been suggested in some of the decisions that a blood alcohol content of .10 percent or more, when standing alone, is insufficient to show a degree of intoxication which proves unfitness to drive and, therefore, is inadmissible. See: Billow v. Farmers Trust Co., supra; Ackerman v. Delcomico, supra. Assuming, without deciding, that a blood alcohol content, no matter how high, can be used only in conjunction with other evidence to show intoxication rendering a motorist unfit to drive, such a rule of law does not aid appellant in the instant case. Here, there was additional evidence, which was sufficient, if believed, to show that the decedent was unfit to drive a vehicle.

This additional evidence showed that the decedent had been drinking scotch for a period of approximately an hour and a half before getting in his car to drive home. He had mixed the drinks for himself, using a bottle of scotch purchased for him by friends who knew his fondness for scotch. Several witnesses observed the decedent driving at a high rate of speed on a dark, winding and hilly road approximately one mile from the scene of the accident. In addition to evidence that samples of decedent’s blood revealed a blood alcohol content of .18 percent, Dr. Frederick Rieders, a toxicological expert, testified extensively regarding the significance of such a high alcoholic content with respect to the decedent’s ability to drive safely. He said:

[M]y opinion, based on reasonable scientific certainty, is that an individual with a circulating blood alcohol load reflected by a blood alcohol concentration of .18 percent is unfit to operate a motor vehicle safely or to drive safely for the following reasons ...
In an individual of this size, if that is his circulating blood alcohol level at the time of an accident, it means that he had circulating in his body at least seven drinks, between six and seven drinks, at least that many drinks
At this blood alcohol and at much lower blood alcohol levels than at .18 percent, virtually every—virtually every person, adult or child, man or woman, is markedly impaired with respect to their own normal state.
Now, impaired in what? There’s marked impairment, first of all, and very importantly, of the sense of care and caution. People drink to be a little bit more carefree. Translated into this, this means a lessened sense of care and caution.
Less alertness, impairment of alertness, impairment of perception, visual perception, auditory perception, seeing things clearly, hearing things clearly. Judgment, very-important and almost invariant reduction occurs even with much, much lower blood alcohol levels in the judgment that the person has, judging what does it mean that I see, hear or feel. That’s what I mean by judgment, the response time, how quickly that person will respond to a stimulus, especially to an emergency stimulus.
And coordination, that means the coordination between muscles and nerves, all of these things are progressively and markedly impaired. And in terms of what this means in terms of operating a vehicle on the highway is that the experience of forensic toxicologists and probably also statisticians and everybody else says that our data indicate very strongly that this kind of a blood alcohol level, a person’s likelihood of being involved in a fatal accident is over 20 times greater than that of a sober person.
So this is why we can say with reasonable certainty that this blood alcohol level, regardless of how much the person had to drink to reach this, he’s impaired to such a point that he’s unfit to operate a motor vehicle safely. He can still drive it, obviously people do, but not safely. (N.T. 6/11/85, pp. 21-24).

The “other” evidence necessary to render admissible a blood alcohol content in excess of .10 percent, it has been held, may consist of expert testimony interpreting the significance of the results of blood alcohol tests with respect to unfitness to drive. See: Beneshunas v. Independence Life & Accident Insurance Co., supra, 354 Pa.Superior Ct. at 397 n. 1, 512 A.2d at 9 n. 1. It may also consist of lay testimony pertaining to conduct on the part of the actor which suggests intoxication, see: Ackerman v. Delcomico, supra, or, as the case law demonstrates, it may consist of both of these types of evidence combined. See: Emerick v. Carson, supra; Couts v. Ghion, supra; Cusatis v. Reichert, supra.

The trial court concluded that the evidence was sufficient to establish a degree of intoxication proving unfitness to drive and allowed the evidence of consumption of alcohol. We find no error therein. Contrary to appellant’s contention, the evidence was not merely that the decedent had a blood alcohol reading of .18 percent. The evidence was sufficient, if believed, to show that the decedent was so intoxicated that he was incapable of driving safely and that this was the legal cause for his loss of control of the vehicle which he was driving.

Appellant complains that the trial court decided the admissibility issue without holding an evidentiary hearing to determine the sufficiency of the evidence to show the decedent’s unfitness to drive. Although the decision in Vignoli v. Standard Motor Freight, Inc., 418 Pa. 214, 210 A.2d 271 (1965) commended the trial judge in that case for hearing testimony out of the hearing of the jury, it did not hold that an evidentiary hearing was the only way of determining the admissibility of intoxication evidence. The trial judge did not err in the instant case when she decided the admissibility issue on the basis of the appellee-defendant’s offer of proof. Moreover and in any event, the proof of the pudding is in the eating. The record in this case demonstrates unequivocally that the evidence was sufficient to show a degree of intoxication rendering the decedent unfit to operate a motor vehicle. The trial court properly received it and allowed the jury to consider it. It was relevant to establish the cause of the fatal accident.

Appellant also contends that the results of the blood test should not have been received because the samples of the decedent’s blood had not been properly drawn, stored and handled. There is no merit in this argument. The evidence showed that the blood samples had been drawn by Dr. Carl Hamsher, a licensed physician, shortly after decedent had been pronounced dead. Dr. Hamsher testified that the decedent’s injuries had been in the region of his head and neck and that there were not extensive injuries to his chest or abdomen which might have caused contamination of a blood sample taken from the heart. Therefore, Dr. Hamsher removed blood from decedent’s heart and placed it in two sterile, red-topped tubes. He gave the tubes to a nurse, whose duties required her to label the tubes and place them in the emergency room refrigerator. The following morning, Charles Thomas, the Acting Coroner, collected the labeled samples of the decedent’s blood from a nurse, who had retrieved them from the refrigerator in the emergency room. After obtaining the same, Thomas examined decedent’s body and observed no injuries to the chest or abdomen. He also checked the blood samples visually to ensure that they did not contain any debris. Having ascertained that the samples were satisfactory, Thomas returned to the Coroner’s Office, where his assistant, Carl Hofheinz, transferred the samples into tubes provided in a Becton-Dickinson kit which contained a blood preservative. The samples were then mailed to the Pennsylvania State Laboratory, where they were tested and revealed a blood alcohol content of .18 percent.

Appellant argues that the blood test results should have been excluded because the blood samples were not drawn by the coroner. This, he contends, was required by Section 3749 of the Vehicle Code, 75 Pa.C.S.A. § 3749, which is entitled “Reports by coroners and examiners,” and which requires in subsection (b) that coroners or medical examiners in each of the counties take blood or urine samples or both from the bodies of all drivers and pedestrians over 15 years of age who die within four hours following an accident. These samples are to be submitted to the Governor’s Council on Drug and Alcohol Abuse. The statute, although intended to serve a valuable purpose, was not intended to alter the law of evidence by setting new standards by which to determine the admissibility of blood test evidence. The blood samples in the instant case were drawn by a licensed physician at the request of the coroner. Even the appellant has not suggested that the physician was unqualified to extract a blood sample or that the procedure which he adopted was faulty.

Appellant next argues that the results of the blood test should have been excluded because the samples were not placed in tubes provided in the Becton-Dickinson kit immediately upon extraction. This fact did not render the test results inadmissible. Applicable Department of Health regulations provide that blood specimens extracted from the body of a person killed in a motor vehicle accident “shall be collected with equipment prescribed by the Department of Health.” 28 Pa.Code § 29.21(b)(1). In accordance with this regulation, the Department of Health, Bureau of Laboratories, distributed Becton-Dickinson kits to coroners throughout the state. These kits contained, inter alia, sterile containers and a blood preservative for use in storing blood samples until the time when they were tested. However, Dr. Martin Shoemaker, the Director of the Pennsylvania State Health Laboratory, testified that the Becton-Dickinson kit is only one of several methods for postmortem specimen collection and that there are other methods for collecting blood samples which are equally reliable. Dr. Shoemaker testified that refrigeration is an appropriate method of preserving blood samples for short periods of time such as that which elapsed in the instant case. Finally, Dr. Shoemaker testified that he had reviewed the collection and storage procedures employed in the instant case and had concluded that they were proper. We conclude, therefore, that the extraction of blood and the testing thereof were shown to be both accurate and reliable. The trial court did not err when it received the result of the blood test and allowed the jury to consider it.

Dr. Frederick Rieders, an expert in toxicology, was asked hypothetically on direct examination for an opinion regarding the decedent’s fitness to drive, assuming the decedent’s consumption of alcohol prior to the accident and his blood alcohol as measured after the accident. The witness, over objection, responded that in his opinion the decedent was unfit to drive and incapable of driving safely. The witness then volunteered that the decedent, based on the amount of alcohol in his blood, must have had at least six or seven drinks, which would have diminished substantially his coordination, perception and alertness. Appellant did not object or request that the volunteered additional information be stricken.

This testimony, therefore, does not afford appellant a basis for the new trial which she seeks. The question asked by counsel, to which appellant did object, was proper; it very clearly assumed only facts already in evidence. The contention that Dr. Rieder’s volunteered explanation about the number of drinks consumed was based on conjecture was not objected to and was thereby waived. See: Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 532, 521 A.2d 25, 30 (1987); Kemp v. Qualls, 326 Pa.Super. 319, 327, 473 A.2d 1369, 1373 (1984). If appellant had made a timely objection, the trial court could have made a ruling thereon at trial, and the volunteered nature of the answer could have been corrected by an appropriate question. Appellant will not be heard to object for the first time after trial, that the witness’s testimony about the number of drinks consumed was either volunteered or speculative.

Appellant’s contention that the decedent’s manner of driving his vehicle a mile from the accident scene was too remote in time and distance to be relevant is also lacking in merit. In Finnerty v. Darby, 391 Pa. 300, 138 A.2d 117 (1958), the Supreme Court said:

This Court has frequently ruled that testimony as to the speed or operation of an automobile at a point near and a short time before the collision is admissible and relevant to the issue of the speed of the vehicle at the time of the accident. Such evidence is admissible, its weight and credibility being for the jury. Shellenberger v. Reading Transportation Co., 303 Pa. 122, 154 A. 297 [ (1931) ]; Gerhart v. East Coast Coach Co., 310 Pa. 535, 166 A. 564 [ (1933) ]; Rooney v. Maczko, 315 Pa. 113, 172 A. 151 [ (1934) ]; Commonwealth v. Pennzoil Company, 358 Pa. 221, 56 A.2d 93 [ (1948) ]; Pierontoni v. Barber, 384 Pa. 56, 119 A.2d 503 [ (1956) ]. Whether the evidence of speed is too remote in time and distance depends upon the facts in each case, and to an extent whether it is the only evidence or is corroborative of other admissible evidence of speed.

Id., 391 Pa. at 315-316, 138 A.2d at 124. See: Fugagli v. Camasi, 426 Pa. 1, 4-5, 229 A.2d 735, 736-737 (1967).

In the instant case, the witnesses testified that decedent’s Porsche had passed them, travelling at a high rate of speed, at a point on Morris Road approximately one mile from the accident site. One of the witnesses stated also that after completing the pass decedent’s vehicle had begun travelling at an even faster rate of speed. The witnesses testified that they had lost sight of the vehicle approximately one-quarter of a mile from the scene of the accident. The trial court ruled that the witnesses’ observations were not so remote in time or distance as to render their observations irrelevant and permitted the testimony. There was neither error nor abuse of discretion in the court’s ruling. The accident occurred on a narrow road at a time when traffic was not heavy. There were no intersections or other obstructions in the road that would have compelled the decedent to reduce his speed between the place where the witnesses observed him and the location of the accident. Other evidence disclosed that at the time of the accident decedent had been travelling at a rate of speed of between fifty-eight and sixty-three miles per hour. The speed at which the decedent’s vehicle was travelling as it neared the point where it left the road, therefore, was clearly relevant. The weight to be placed on it, of course, was for the jury. See and compare: Finnerty v. Darby, supra.

Appellant also argues that the trial court erred in (1) permitting appellee’s expert to testify beyond the scope of his pre-trial report; (2) permitting a witness, James Wonnell, to testify as an expert; and (3) allowing appellee’s counsel, after ruling that comparative negligence principles had no application, to suggest to the jury that the decedent’s negligence was the sole cause of the accident. We have examined these contentions carefully and conclude that they have been adequately analyzed and properly decided by the learned trial judge. Suffice it to say that appellant’s contentions are lacking in merit and do not warrant a new trial.

Judgment affirmed.

      . Claims against Foreign Wheels, Inc. and Bob Fox Porsche Service were settled prior to trial.

      . The Becton-Dickinson kit is commercially marketed and is designed for storage of postmortem blood samples. The kit has been approved by the Department of Health.

      . We similarly reject appellant’s contention that appellee failed to establish the chain of custody of the specimen. The record shows that the specimen was extracted in the emergency room of the Montgomery Hospital and was properly labeled and stored in the emergency room refrigerator until it was picked up by the coroner. The coroner then took the specimen to his office where it was placed in a preservative and mailed to the State Laboratory. Nothing more by way of proof of chain of custody was required.

      . One of the witnesses estimated decedent’s rate of speed to have been between 50 and 55 miles per hour, while the other estimated it to be between 80 and 90 miles per hour.


author: OLSZEWSKI, Judge:

text:
    532 A.2d 1186
    COMMONWEALTH of Pennsylvania, Appellee, v. David C. MILLER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1987.
    Filed Oct. 20, 1987.

      William Miele, Assistant Public Defender, Williamsport, for appellant.
    Kenneth Osokow, Assistant District Attorney, Williams-port, for Com., appellee.

      Before CIRILLO, President Judge, and OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge:

Appellant, David C. Miller, appeals from the judgment of sentence entered in the Court of Common Pleas of Lycoming County following his conviction by a jury of driving under the influence of alcohol (DUI), resisting arrest, and a summary traffic offense. On appeal, appellant contends that the trial court erred in admitting into evidence: (1) results of a field sobriety test known as the “horizontal gaze nystagmus” (HGN) test; and (2) appellant’s prior convictions for burglary, theft, and receiving stolen property. For the reasons stated below, we affirm the trial court’s judgment of sentence.

Before addressing the merits of appellant’s contentions, a brief recital of the relevant facts is necessary. The Honorable Clinton W. Smith’s trial court opinion of December 31, 1986 aptly stated:

In the early morning hours of November 27, 1985, Officers Bruno and Duck, of the Williamsport Bureau of Police, investigated a hit and run accident that occurred in the area of Krouse Avenue and Park Avenue. Upon arriving at the scene of the accident, the officers discovered that a black El Camino vehicle had struck a row of hedges bordering a sidewalk and that it had knocked over a “No Parking” sign. At approximately 2:45 a.m. the officers spotted a vehicle matching the description given by a witness at the scene of the accident, and they proceeded to follow the vehicle operated by defendant [appellant]. After following the vehicle a short distance the officers decided to stop the vehicle; the emergency lights on the cruiser were activated, and the police continued to follow the vehicle. Defendant, however, did not pull over, but rather, led the officers on a chase for several blocks. The officers radioed that they were in pursuit, and eventually the defendant pulled over to the curb, exited the car and ran north on Stevens Street and then east on Scott Street. Officer Bruno followed the defendant and found him on the back porch of his residence located at 1553 Scott Street. Officer Bruno approached the defendant, told him not to move and informed him that he was wanted for hit and run and that he was suspected of driving under the influence. Officer Bruno testified that defendant had been driving in an erratic manner in that he went over the curb at one point, that he was driving at an excessive speed and that he went through a stop sign before exiting his vehicle. Officer Bruno also observed that the defendant had bloodshot eyes, that his balance was slightly off, that his speech was slurred and that he smelled of alcohol.
While attempting to place handcuffs on defendant, the defendant engaged Officer Bruno, as well as three fellow officers, in a struggle. Defendant was eventually subdued and upon refusing to submit to blood tests, he was taken to City Hall where he performed sobriety tests. Officer Bruno testified that defendant failed to perform the test[s] correctly and thus, based upon the officer’s observation, together with the results of the above tests, defendant was charged with driving under the influence in violation of 75 Pa.C.S. § 3731(a)(1).

Trial court opinion of December 31, 1986, at pp. 1-3.

Prior to trial, appellant’s counsel filed a motion in limine with the trial court to exclude testimony regarding the HGN test and evidence of appellant’s prior criminal convictions. The trial court denied appellant’s motion and, after a two-day trial, a jury convicted appellant of driving under the influence, resisting arrest, and a summary traffic offense. The trial court subsequently sentenced appellant to an aggregate term of imprisonment of fourteen to forty-eight months. Following denial of his post-trial motions, appellant filed this timely appeal.

Appellant first contends that the trial court erred in admitting into evidence results of the HGN test. Appellant’s brief succinctly summarizes his position regarding why admission of the HGN test results was error in this case:

Case law prohibits evidence based on scientific principles without a showing that the principle is generally accepted by experts in the field to which the principle belongs. The horizontal gaze nystagmus (HGN) test represents the principle that alcohol consumption exagerates [sic] and magnifies involuntary eye twitchings. At trial there was no showing as to this principle[’]s acceptance by experts in the field. Furthermore, the officer testifying, as to the HGN test, lacked expertize [sic] to either testimony concerning the test and its results as to defendant, and to its acceptance by experts in its field.

Appellant’s brief at p. 6. We agree with appellant’s contention that the trial court improperly admitted into evidence results of the HGN test, but we also find that the trial court’s error was harmless since other sufficient evidence was admitted at trial to sustain the jury’s verdict.

The trial court permitted testimony regarding the HGN test on the basis that the HGN test “is a scientific test to the extent that it is based on scientific principles, just as are other sobriety tests performed by the police. However, the [trial] court [did] not deem the test to be of such a type that demands expert testimony prior to its introduction.” Trial court opinion of December 31, 1986, at p. 3. We disagree with the trial court’s conclusion that prior to admitting HGN test results into evidence expert testimony was not required to establish an adequate foundation regarding its admissibility.

Scientific evidence is “evidence that draws its convincing force from some principle of science, mathematics and the like.” State v. Reed, 83 Or.App. 451, 732 P.2d 66, 68 (1987) (quoting State v. Brown, 297 Or. 404, 407, 687 P.2d 751, 754 (1984)). In Pennsylvania, “[t]he admissibility of any experimental or scientific evidence depends upon presenting an adequate foundation.” Commonwealth v. McGinnis, 511 Pa. 520, 524, 515 A.2d 847, 849 (1986). In discussing what constitutes an adequate foundation for admission of scientific evidence, our Supreme Court stated:

Admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs
“Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923) (emphasis supplied).

Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977). Our Supreme Court has additionally noted that “[o]ne proffered rationale for this standard is ‘fear that the trier of fact will accord uncritical and absolute reliability to a scientific device without consideration of its flaws in ascertaining veracity.’ ” Commonwealth v. Nazarovitch, 496 Pa. 97, 101-102, 436 A.2d 170, 172-173 (1981) (quoting Spector and Foster, “Admissibility of Hypnotic Statements: Is the Law of Evidence Susceptible?”, 38 Ohio L.J. 567, 583 (1977)).

Nystagmus is the rhythmic oscillation of the eyeballs in either a horizontal, vertical, or rotary direction. See Stedman’s Medical Dictionary 971 (5th Lawyer’s Ed.1982); Webster’s New Collegiate Dictionary 783 (1980). Medical literature distinguishes between several types of nystagmus, as well as the their underlying causes. See e.g., The Merck Manual of Diagnosis and Therapy 1980-1981 (14th Ed.1982). Jerk Nystagmus is described as follows:

Jerk nystagmus ... is characterized by a slow drift, usually away from the direction of gaze, followed by a quick jerk of recovery in the direction of gaze. A motor disorder, it may be congenital or due to a variety of conditions affecting the brain, including ingestion of drugs such as alcohol and barbiturates, palsy of lateral or vertical gaze, disorders of the vestibular apparatus and brainstem and cerebellar dysfunction.

Id. at 1980 (emphasis added).

The HGN test is often employed by police officers to ascertain the horizontal gaze nystagmus of a motor vehicle driver suspected of driving under the influence of alcohol. In State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986), the Supreme Court of Arizona described how the test is administered:

In the HGN test the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver’s blood alcohol content (BAG) exceeds the legal limit of .10 percent.

Id. at 271, 718 P.2d at 173. As described in both Officer Duck’s testimony, see infra, and the trial court opinion at p. 4, the rationale for subjecting motorists suspected of driving under the influence of alcohol to the HGN test derives from the scientific principle that consumption of alcohol causes nystagmus.

Results of the HGN test are therefore scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test. Furthermore, in order for HGN test results to be admissible, the party seeking to admit the results as evidence must establish that the scientific principles upon which the test is based are generally accepted by scientists active in the appropriate scientific communities. See Topa, 471 Pa. at 230, 369 A.2d at 1281. In the instant case, the Commonwealth did not present expert testimony regarding general acceptance of the scientific principle (i.e., consumption of alcohol causes nystagmus) upon which the HGN test is based. Rather, the only testimony concerning the validity of the HGN test came from Officer Arnold Duck, Jr., whose only specialized training in this area was a two day course on the proper use of the HGN test and other field sobriety tests. We find that this was an inadequate foundation for the admission of the testimony regarding the results of the test. Though Officer Duck’s testimony mentioned the scientific principle underlying the HGN test, his brief training session on how to properly administer the test was insufficient to qualify him to testify either about the scientific principle that consumption of alcohol causes Nystagmus or about the principle’s general acceptance in the appropriate scientific communities. We, therefore, hold that the trial court erred in admitting testimony regarding the results of the HGN test since the Commonwealth did not establish an adequate foundation for admission of the test results. We, however, decline to determine the validity and future admissibility of the HGN test since the record presently before us is bereft of any legal or scientific discussion regarding the HGN test’s validity or admissibility. Our holding is premised solely on the Commonwealth’s failure to present an adequate foundation regarding the HGN test’s validity and admissibility.

Even though the admission into evidence of the results of the HGN test was error, we believe that the error was harmless since there was sufficient other evidence to sustain the jury’s verdict that appellant was guilty of driving under the influence of alcohol (75 Pa.C.S.A. § 3731). In Commonwealth v. Boerner, 268 Pa.Super. 168, 407 A.2d 883 (1979), appeal dismissed, 491 Pa. 416, 421 A.2d 206 (1980), this Court held that, due to improper certification, admission of breathalyzer results into evidence was error. Noting that intoxication is not a condition outside the realm of understanding or powers of observation of ordinary persons, we also held that the error was harmless in light of the overwhelming testimonial evidence of appellant’s intoxication. Id., 268 Pa.Superior Ct. at 170-173, 407 A.2d at 885-886. In Boerner, both the officer who arrested the defendant and the state trooper who administered the breathalyzer test testified that they concluded the defendant was intoxicated after observing his staggering walk and his slurred and incoherent speech, as well as detecting a strong odor of alcohol about him. Id., 268 Pa.Superior Ct. at 170, 407 A.2d at 885. In the instant situation, both Officer Duck and Officer Bruno, the other arresting officer, testified that appellant “had bloodshot eyes, that he smelled of alcohol, that his speech was slurred, that he was boisterous and agitated, and that he had been driving in an erratic fashion.” Trial court opinion of December 31, 1986 at p. 5. In addition, Officer Bruno also testified that appellant was unable to successfully perform three field sobriety tests— finger-to-nose test, standing on one leg balance test, and the heel to toe test. Further, the officer testified that appellant was able to successfully complete the recitation-of-alphabet test only after two attempts. See N.T. 4/23/86 at pp. 51-54. In light of the testimonial evidence of appellant’s intoxication, the admission into evidence of the results of the HGN test was harmless error. We find that the arresting officers’ observations of appellant, as well as appellant’s performance on the other field sobriety tests, established a sufficiently independent basis for the jury’s verdict that appellant was guilty of driving under the influence of alcohol. Cf. Commonwealth v. McGinnis, 511 Pa. 520, 524, 515 A.2d 847, 850 (1986).

Appellant next contends that the trial court erred in admitting, for the purpose of impeachment, evidence of appellant’s prior convictions for burglary, theft, and receiving stolen property. In essence, appellant maintains that the trial court failed to properly consider the factors of the Roots-Bighum test in considering whether appellant’s prior convictions were admissible as impeachment evidence. Appellant’s contention, however, is rendered moot since the guidelines enunciated in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973) and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), regarding admissibility of a defendant’s prior convictions for impeachment purposes are no longer the controlling law of the Commonwealth. In Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), our Supreme Court significantly altered the RootsBighum guidelines for determining admissibility of prior convictions. The Court stated:

[W]e do modify our current rule to the following extent: evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Randall, 515 Pa. at 415, 528 A.2d at 1329 (emphasis added).

Considering the above rule, the evidence of appellant’s prior convictions was admissible. First, appellant’s two prior convictions, one for burglary and theft and the other for receiving stolen property, are “crimen falsi and thus highly pertinent to veracity and credibility.” Commonwealth v. Henderson, 497 Pa. 23, 36, 438 A.2d 951, 957 (1981). Second, the convictions both occurred four years prior to appellant’s trial in the present case, which comports with the Randall requirement that “the date of conviction ... is within ten years of the trial date.” Randall, at 415, 528 A.2d 1329. Appellant’s convictions, consequently, were properly admitted into evidence for the purpose of impeachment.

Judgment of sentence affirmed.

      . We do not reach the question of what scientific disciplines would constitute the scientific community in which general acceptance of the scientific principles underlying the HGN test would have to be established at trial prior to admission of the results of an HGN test. This question has not been raised either in the trial court or in this appeal and, consequently, we do not consider it. We, however, do note that the Arizona Supreme Court addressed this question in State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986). The Court stated:
      We conclude, therefore, that to determine whether the HGN test satisfies the Frye requirement of general acceptance the appropriate disciplines include behavioral psychology, highway safety and, to a lesser extent, neurology and criminalistics.

        Id. at 278, 718 P.2d at 180.

      . Officer Duck, who administered the HGN test to appellant, described horizontal gaze nystagmus and the HGN test as follows:
      A. The horizontal gaze nystagmus is an involuntary twitching of the eyes, okay. Check to see if an individual can follow an object smoothly, okay. Everybody has nystagmus, but it is not visible. The, ah, use of alcohol, what it does it magnifies it to the point where it can be seen in the naked eye. Ah, the test that was administered is in three different phases, it is in three phases for each eye. The first test, what we use, an[d] what I used that day was a pen light, what we do is we have the individual ... well, first, we ask if he does wear contact lenses? Mr. Miller stated he did not. Certain type contact lenses you cannot administer the test with. The first thing you do is have the individual fix his eyes on an object, in this case it was a pen light. What we do is, we have him follow the object as far out to either side as possible and then back. It is usually about 2—3 seconds over and back. If his eye doesn’t follow the object smoothly we score him. a point. For example, not following smoothly is like rolling a marble on a piece of concrete or sidewalk, it goes in a jerky motion. The second phase would be lack ofdestinct [sic] nystagmus is maximum deviation. What we do is we have the individual follow the object out as far to the side as he can, and keep the object out there for 3 to 4 seconds, and bring it back in. What I am looking for is involuntary twitching of the eye while he is watching the object out to the side as far as he can, if that is present, score another point. The third phase would be this destinct [sic] nystagmus prior to looking at a 45 degree angle, what we do is we have him follow the object slowly and if the nystagmus or twitching is present looking at the 45 degree angle that is another point. We do that with both eyes, so it would be a maximum of 6 points.
      N.T. 4/23/86 at pp. 90-91 (emphasis added).