Commonwealth v. Foley

McGINLEY, Judge,

dissenting.

I respectfully dissent.

After reviewing Licensee’s injuries, the majority concludes that the injuries suffered by Licensee were not as severe or incapacitating as those suffered by the motorist in Day and therefore could not have been so obvious as to relieve him of the additional burden of producing medical testimony to establish he was unable to make a knowing and conscious refusal. Majority Opinion at 1019. In Day, this court noted that the cases requiring medical evidence do not indicate that such evidence is a per se requirement and, taking into account the injuries suffered and all the attendant circumstances, it is for the trial judge to determine the credibility of the witness and make a finding as to whether the refusal was knowing and conscious. This court went on to recite that “a motorist’s bare assertion of physical incapacity, absent any supportive medical evidence, is insufficient to meet the required burden of proof.” Day, 93 Pa.Commonwealth Ct. at 52, 500 A.2d at 215. In Day we concluded that a motorist’s physical condition is to be determined on a case by case basis.

On appeal we must not exceed our scope of review by invading the province of the fact finder. Our Supreme Court recently discussed the appellate courts’ proper scope of review in Department of Transportation, Bureau of Traffic Safety v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989). In O’Connell, the Court notes:

When appellate courts review the decision of a court of common pleas in a license suspension case, the scope of review is limited to determining whether the findings of fact of the trial court are supported by competent evidence and whether the trial court committed an error of law or an abuse of discretion in reaching its decision.

Questions of credibility and conflicts in the evidence presented are for the trial court to resolve, not our appellate courts.

As long as sufficient evidence exists in the record which is adequate to support the finding found by the trial court, as factfinder, we are precluded from overturning that finding and must affirm, thereby paying the proper deference due to the factfinder who heard the witnesses testify and was in the sole position to observe the demeanor of the witnesses and assess their credibility. This rule of law is well established in our jurisprudence and is rooted in concepts of fairness, common sense and judicial economy.

Id., 521 Pa. at 248, 555 A.2d at 875 (citations omitted).

Here, the trial court determined that Licensee sustained obvious incapacitating injuries noting that the impact of Licensee’s head with the windshield of the vehicle was forceful enough to shatter the windshield and that the vehicle had sustained extensive front-end damage including a broken steering wheel. The trial court also found that Licensee was rendered unconscious, had a bump on his head and was cut and bruised. The trial court observed that the testimony of the police officer was inconsistent with regard to Appellee’s head injury¹ and noted that the officer was unable to recall if the windshield of the vehicle was shattered.

We are aware that this court has required competent medical evidence in similar factual situations to establish the operator’s inability to make a knowing and conscious refusal. However, to require medical evidence where the trial court finds an obvious and severe, incapacitating injury is to exceed our standard of review. Certainly Licensee was competent to testify concerning his condition at the time of the refusal. It is within the exclusive province of the trial court to judge the weight and credibility of Licensee’s testimony.

Accordingly, I would affirm on the basis that the trial court’s conclusion that, as a result of obvious incapacitating injuries, Licensee was unable to knowingly and consciously refuse chemical testing, is both correct as a matter of law and supported by substantial evidence.

1 . During direct examination of the police officer the following exchange took place:

Q. Did he have any injuries?

A. He had some injuries, yes, ma’am.

Q. What else did you observe — what were his injuries?

A. He had bruises on his legs. I believe he struck his head also____

On cross-examination:

Q. ... You indicated that Mr. Foley did not suffer from any head — head injuries based on your observation. Is that correct?

A. That’s correct, sir.

Reproduced Record at 11a, 17a-18a.