Com. v. Parks, J. ( 2015 )

J-A12005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON PARKS,
Appellant No. 1540 MDA 2014
Appeal from the Judgment of Sentence August 14, 2014
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000100-2013
BEFORE: BOWES, DONOHUE AND ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 17, 2015
Jason Parks appeals from the judgment of sentence of forty-five days
incarceration to be followed by county intermediate punishment imposed by
the court after it found him guilty of driving under the influence (“DUI”)—
highest rate, second offense, DUI—general impairment, and summary traffic
violations. We affirm.
Penn Township Police Officer Christopher Zampogna was on patrol on
November 22, 2012. At approximately 1:15 a.m., Officer Zampogna
observed a vehicle traveling in front of him going in the same direction. He
saw the car come to a stop in the right hand turn lane before moving to the
left turn lane without signaling. The operator of the car, however, did not
turn left, but proceeded to go straight through the intersection. Before
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traveling through that intersection, the driver stopped the vehicle in the
middle of the intersection. The driver then made a sharp right turn from the
intersection without signaling, before traversing over a small cement divider.
The car then made a left hand turn, again without a signal, and nearly
collided with the curb on the side of the road. Officer Zampogna effectuated
a traffic stop based on the erratic driving. Appellant was driving.
Officer Zampogna detected the odor of an alcoholic beverage on
Appellant’s breath and asked Appellant if he had been drinking. Appellant
admitted to consuming one beer. In addition, Appellant’s eyes were glassy
and he was slurring his speech. Accordingly, Officer Zampogna asked
Appellant to perform field sobriety tests. Appellant failed the first test, a
one-legged stand test, when he lost his balance after a six-second count.
Next, Officer Zampogna demonstrated the walk and turn test. Appellant
could not successfully complete that test. He took four steps before losing
his balance and could not walk heel to toe. Officer Zampogna placed
Appellant under arrest and transported him to Harrisburg Hospital for a
blood draw. Appellant’s blood alcohol content (“BAC”) was .165%.
Prior to trial, Appellant filed a motion in limine requesting permission
to introduce evidence that Officer Zampogna had been arrested and
charged, but not found guilty, of attempting to acquire a prescription drug
by misrepresentation. Specifically, Appellant alleged that the Pennsylvania
Attorney General’s Office had submitted an affidavit of probable cause for
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arrest based on the officer’s admission that he lied and asked his wife, a
dermatologist, to prescribe him hydrocodone. Appellant wished to introduce
this evidence to impeach the officer, as well as show that Officer Zampogna
had been addicted to hydrocodone. The parties filed briefs on the issue and
the court denied Appellant’s motion. The matter proceeded to a non-jury
trial before a different judge.
The court found Appellant guilty of DUI—general impairment, DUI—
highest rate, second offense, and several summary traffic offenses.
Subsequently, on August 14, 2014, the court imposed sentence. This timely
appeal ensued. The trial court directed Appellant to file and serve a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant complied, and the court which ruled on the motion in limine
authored a short memorandum decision. The matter is now ready for this
Court’s review. Appellant raises one issue for our consideration: “Is
evidence of prior criminal activity, and prior false statement to law
enforcement not resulting in a conviction admissible to impeach the Affiant
(police officer) in an unrelated proceeding?” Appellant’s brief at 4.
In considering the denial of a motion in limine, we employ an
evidentiary abuse of discretion standard unless the question is purely one of
law. Commonwealth v. Moser, 999 A.2d 602, 605 (Pa.Super. 2010).
Generally, the admission of evidence “will not be disturbed on appeal unless
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that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous.” Id.Appellant acknowledges that Pennsylvania law precludes a witness
from being impeached by evidence of criminal activity that did not result in a
conviction. However, he argues that an exception should exist because the
officer herein was the only witness to the crime and was arrested and
admitted to providing false information to law enforcement. In support,
Appellant relies on Downey v. Weston, 301 A.2d 635 (Pa. 1973), a
personal injury case. Therein, the Pennsylvania Supreme Court precluded
cross-examination of an expert physician on whether he had violated his
Hippocratic Oath and ethical standards by disclosing a medical file to the
attorney for a defendant doctor. In doing so, however, the Downey Court
did opine that evidence of misconduct could be admissible on cross-
examination where it “bears directly on the witness’ ‘character of truth.’”
Downey, supra at 639. The Commonwealth counters that this Court is
bound by prior precedent, which prohibits impeaching any witness with
evidence of a crime for which the witness was not convicted. We agree.
Pennsylvania Rule of Evidence 608(b)(1) provides that, except for
evidence relating to a conviction of a crimen falsi crime, see Pa.R.E. 609,
“the character of a witness for truthfulness may not be attacked or
supported by cross-examination or extrinsic evidence concerning specific
instances of the witness' conduct[.]” Pa.R.E. 608(b)(1). The comment to
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the Rule sets forth that it “prohibits the use of evidence of specific instances
of conduct to support or attack credibility. This is consistent with
Pennsylvania law. See Commonwealth v. Cragle, 281 Pa. Super. 434,
422 A.2d 547 (1980).” Comment to Pa.R.E. 608.
In Cragle, this Court noted that, “Pennsylvania case law has long held
that a witness may not be impeached by evidence of criminal activity for
which the witness has not been convicted.” Id. at 548 (collecting cases).
Therein, defense counsel attempted to cross-examine a prosecution witness
regarding evidence of prior receiving stolen property crimes for which he had
not been convicted. The trial court declined to permit the cross-
examination. This Court affirmed that ruling. The Cragle Court specifically
addressed Downey, supra, concluding that the statement referenced by
Appellant herein was dicta and even if it was not dictum, it was not intended
to overturn a long line of consistent precedent sub silento, which dated back
to 1798. See, e.g., Stout v. Rassel, 2 Yeates 334 (Pa. 1798) (“The credit
of a witness is only to be impeached by his general character, and not by
charges of particular offences of which he has not been convicted.”).
Since the trial court appropriately applied existing law, we find that it did not
abuse its discretion or commit an error of law.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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