holding error in admitting breathalyzer evidence due to improper expert certification harmless in light of overwhelming testimonial evidence of appellant’s intoxication.
How later courts described this case
- holding error in admitting breathalyzer evidence due to improper expert certification harmless in light of overwhelming testimonial evidence of appellant’s intoxication.
- intoxication is not a condition outside the realm of understanding or powers of observation of ordinary persons
Written by the judges who cited it.
The opinion
*173 SPAETH, Judge,
concurring and dissenting:
I agree with the majority that it was error to admit the results of the breathalyzer tests. However, I disagree that the error was harmless. In Commonwealth v. Story, 476 Pa. 391 , 383 A.2d 155 (1978), the Supreme Court said:
[I]n applying the overwhelming evidence test to determine if an error is harmless, a court may rely only on uncontradicted evidence. The uncontradicted evidence of guilt must be so overwhelming, and the prejudicial effect of the improperly admitted evidence so insignificant by comparison, that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict. Id., 476 Pa. at 417 , 383 A.2d at 168 (emphasis supplied).
Here, appellant took the stand and denied that he could have been drunk. Another witness also testified that in his opinion appellant had not been intoxicated. The Commonwealth’s evidence was not, then, “uncontradicted,” as Story requires. Under the circumstances, the admission of the breathalyzer results could not have been harmless. *
I also wish to repeat my objections to the ARD program as an unconstitutional delegation of power. Commonwealth v. Kindness, 247 Pa.Super. 99 , 371 A.2d 1346 (1977) (SPAETH, J„ dissenting).