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MONTGOMERY COUNTY LAW REPORTER
Commonwealth v. Cafferky
CRIMINAL PROCEDURE
Writ of Habeas Corpus
Chemical Testing Devices
Exclusion of Evidence
Burden of Proof
The Commonwealth failed to provide adequate proof of a specific level of alcohol in the defendant's blood and thus failed to establish its prima facie case under 75 Pa.C.S. §3802(a)(2), 75 Pa.C.S. §3802(b) and 75 Pa.C.S. §3802(c).
After being held for court at the conclusion of his preliminary hearing on charges under 75 Pa.C.S. §3802, the defendant filed a Petition for Writ of Habeas Corpus. At the habeas corpus hearing the Commonwealth offered evidence of the results of the blood alcohol test, a certificate of calibration of the testing device and a certificate of accuracy.
Because the certificate of accuracy was not made within thirty days of the testing, as required by 75 Pa.C.S. §1547(c)(l) and 77 Pa.Code 77.25, these exhibits were precluded and thus the Court held that the Commonwealth could not meet its burden of proof under 75 Pa.C.S. §3802(a)(2), 75 Pa.C.S. §3802(b) and 75 Pa.C.S. §3802(c).
- A Petition for Writ of Habeas Corpus tests whether the Commonwealth has sufficient evidence to establish a prima facie case.
- It is similar to a preliminary hearing, but the Commonwealth may present additional evidence.
- A prima facie case is evidence which, in the light most favorable to the Commonwealth, sufficiently establishes both the commission of the crime and that the accused is probably the perpetrator.
- The evidence need not be proof beyond the reasonable doubt, but, "should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury."
- In order for results to be admissible in evidence, the device used for chemical testing must be calibrated and tested for accuracy in the manner specified by the regulations of the Departments of Health and Transportation.
(Appealed to Superior Court November 17, 2004.)
C.P. Montgomery County, Criminal Division. No. 05063-04. Commonwealth of Pennsylvania v. John Christopher Cafferky.
Mary MacNeil Killinger, Deputy District Attorney, for Commonwealth of Pennsylvania.
Brian Kent, Assistant District Attorney, Trial, for Commonwealth of Pennsylvania.
VincentD. Margiotti, of Law Offices of Margiotti & Mittman in Montgomeryville, for John Christopher Cafferky.
SUBERS, S. J., December 13, 2004
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MONTGOMERY COUNTY LAW REPORTER
Commonwealth v. Cafferky
On February 21, 2004, at 3:26 a.m., Trooper Michael Burns of the Pennsylvania State Police responded to a report of a single car accident in Skippack Township. On his way to the scene, he saw the defendant walking along the side of the road.
Mr. Cafferky told the trooper that a friend had an accident in Mr. Cafferky's automobile and that he was looking for it. Mr. Cafferky was disheveled, and had fresh mud on his shoes and on the lower portion of his trouser legs. His face was red and his hands had small bleeding cuts. Trooper Bums offered to take Mr. Cafferky to his vehicle. In the patrol vehicle, the trooper noticed a strong odor of alcohol on the defendant.
At the scene, the trooper saw foot prints in the mud around the driver's side, checked inside and found a registration card, insurance card and an expired Pennsylvania driver's license with Mr. Cafferky's photograph on it. Trooper Bums asked for the keys so he could make sure there was nothing in the trunk, and Mr. Cafferky produced them. He then admitted he had been the driver, and had consumed twelve (12) beers.
The trooper arrested Mr. Cafferky, and transported him to the Pennsylvania State Police Skippack barracks where breath tests were performed using an Intoxalizer 5000. This showed a blood alcohol content of 0.22% by volume. Mr. Cafferky was charged with various offenses under 75 Pa. C.S. §3802. He was held for court at the conclusion of a preliminary hearing on July 8, 2004.
Defendant filed a Petition for Writ of Habeas Corpus which we heard on October 19, 2004. On October 20, 2004, we issued an Order dismissing counts 2, 3 and 4, those relating to specific amounts of alcohol in the blood. We refused to dismiss those counts relating to impairment as the result of consuming alcohol. The Commonwealth has appealed to the Superior Court.
At the habeas corpus hearing, the Commonwealth offered into evidence the results of the blood alcohol test, a certificate of calibration of the testing device, and a certificate of accuracy.
The certificate of accuracy was not made within thirty (30) days of the testing as required by 75 Pa. C.S. § 1547(c)(l) and 77 Pa. Code §77.25. Therefore, we sustained the defendant's objection to those exhibits. Absent this evidence, the Commonwealth failed to establish a prima facie case under 75 Pa. C.S. §3802(a)(2), 75 Pa. C.S. §3802(b) and 75 Pa. C.S. §3802(c), all of which require proof of a specific level of alcohol in the blood.
In its Statement of Matters Complained of on Appeal, the Commonwealth asserts this was an error of law, because the notes of testimony of the preliminary hearing referred to the original copy of a proper monthly calibration.
[1], [2], [3], [4] A Petition for Writ of Habeas Corpus tests whether the Commonwealth has sufficient evidence to establish a prima facie case. It is similar to a preliminary hearing, but the Commonwealth may present additional evidence.
A prima facie case is evidence which, in the light most favorable to the Commonwealth, sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator.
The evidence need not be proof beyond a reasonable doubt, but, "should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury." Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa. Super) allocatur denied, 574 Pa. 765, 832 A.2d 435 (2003); Commonwealth v. Engle, 847 A.2d 88, 91 (Pa. Super. 2004).
In Keller, the defendant challenged the test results on the ground that they were obtained from a hospital without a warrant. The Superior Court held that a warrant was not required because of the relevant implied consent provisions of the Vehicle Code. The Superior Court held also that suppression is not the basis for dismissal of charges, only the exclusion of evidence.
Copyright © Montgomery Bar Association 2005
MONTGOMERY COUNTY LAW REPORTER
Commonwealth v. Cafferky
In Commonwealth v. Engle, 847 A.2d 88, (Pa. Super. 2004), the Superior Court ruled that evidence which was otherwise inadmissible could not be used to support the prima facie case. There, the excluded evidence was of the improper use of a child passenger restraint system. This is inadmissible under 75 Pa. C.S. §4581(f).
[5] In order for results to be admissible in evidence, the device used for chemical testing must be calibrated and tested for accuracy in the manner specified by regulations of the Departments of Health and Transportation. 75 Pa. C.S. §1547(c)(I); Commonwealth v. Hess, 349 Pa. Super. 440, 503 A.2d 448 (1986).
Since the required certificate of accuracy was not offered into evidence, the Commonwealth did not establish a foundation for admissibility of the test results. The fact such a document is referred to in the transcript of the preliminary hearing is of no moment. That document was not made part of the record, and nothing establishes the contents of that certificate, nor the propriety of the certification document.
Absent that evidence, the charges requiring proof of a specific blood alcohol level were not sustained. We did not prohibit the Commonwealth from establishing the other charges of operating under the influence through other evidence. See 75 Pa. C.S. §1547(f).
(Appealed to Superior Court November 17, 2004.)
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