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7 Pa. Commw. 584

Commonwealth v. Passarella

Commonwealth Court of Pennsylvania

Decided February 26, 1973

Commonwealth Court of Pennsylvania · decided 1973-02-26

Key passage — most relied on by later courts

““No medical doctor testified that appellee suffered an actual concussion; no medical evidence was introduced as to what effects such a concussion would have had on appellee after he was released from the hospital. Testimony as to appellee’s medical ‘record’ were of doubtful validity and merely indicated that a ‘possible’ concussion occurred. As said in Commonwealth v. Harris, 351 Pa. 325, 330 , 41 A.2d 688, 691 (1945), quoted in Scannella v. Salerno Importing Co., 2 Pa. Commonwealth Ct. 11, 15 , 275 A.2d 907, 909 (1971): ‘Certainly every “act, condition or event” which some hospital physician places in a hospital record does not ipso facto become competent when later an issue is being judicially tried to which such fact would be relevant if proved by competent testimony.’ (Emphasis in original).”

quoted by 3 later decisions, including Commonwealth v. Kelly, Schindler v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

“The automobile has bestowed great material, intellectual and social benefits. By the agency of the bad driver, it has also visited upon a substantial minority of persons disasters of Apocalyptic dimensions. At the forefront of the instruments of destruction has been the drunken driver. [The implied consent laws] were intended to supply scientific, physiological proof of the presence or absence of the influence of intoxicants, as a substitute for or supplement to the observations of eyewitnesses, uncertain when made and usually required to be recalled long after the event. Furthermore, the jury could thus be provided a means of accounting for aberrant behavior otherwise than as symptomatic of the inevitable blow on the head.”

quoted by 2 later decisions, including 136 Pa. Commw. 342 - COM., DEPT. OF TRANSP. v. Fiester, 147 Pa. Commw. 70 - COM., DEPT. OF TRANSP. v. Hoover

Relies on Commonwealth v. Harris · Commonwealth v. Halteman · Commonwealth v. Gallagher

Good law ✅— No negative treatment on recordhow we know

Decided 1973-02-26

How this case has been cited

Cited by 22 later decisions — most recently June 2009

22 state decisions

1101973198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Opinion by

Judge Mencer,

¶2On August 12, 1971, a police officer discovered James A. Passarella (appellee) behind the wheel of a car which had just been in an accident. Appellee had to be helped from the car; he had difficulty keeping his eyes open; he had to be supported because he could not stand by himself; he had difficulty speaking without slurring his words; and he had a strong smell of alcohol about him. Other individuals in the vehicle seemed to be in a similar inebriated state.

¶3Appellee was then taken to Lankenau Hospital where he was examined and then released. He was then charged with a violation of Section 1037 of The Yehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 P.S. §1037, and taken to the Lower Morion Township Police Station where he was asked to take a breathalyzer test. He refused this and was then asked to consent to a blood test, which he also refused. As a result, pursuant to Section 624.1(a) of The Vehicle Code, 75 P.S. §624.1 (a), the Secretary suspended appellee’s operator’s license for six months. The Commonwealth has appealed an order of the Court of Common Pleas of Montgomery County sustaining appellee’s appeal of the suspension.

¶4At the hearing, appellee testified that he had no recollection of the events surrounding the accident and did not recall being asked to take the chemical tests, evidently because of a blow to his head in the accident.

¶5*586Over the objection of counsel for the Commonwealth, one Herbert F. Holmes, who operates an independent service of producing hospital records in court for ten hospitals (including Lahkenau), testified that the “diagnosis” of appellee’s “record” stated “multiple abrasions, possible cerebral concussion.” (Emphasis added.) The Commonwealth’s objection was that Holmes lacked the necessary qualifications to testify about such records and, additionally, failed to testify to the mode of the record’s preparation as required by Section 91(b) of the Uniform Business Records as Evidence Act, Act of May 4, 1939, P. L. 42, No. 35, 28 P.S. §91 (b).

¶6The lower court concluded that “[i]t is clear from the evidence in this case that the defendant had suffered a cerebral concussion, the effect of which persisted for several hours, and which rendered [appellee] incapable of making conscious, knowing decisions and replies to questions. . . . There being no wilful refusal to undergo a chemical test in this case, it follows that the license suspension was improper.”

¶7Our duty is to examine the testimony to determine whether the findings of the court are supported by competent evidence, and to correct conclusions of law erroneously made. Commonwealth v. Buffin, 2 Pa. Commonwealth Ct. 404, 278 A. 2d 366 (1971) ; Commonwealth v. Halteman, 192 Pa. Superior Ct. 379, 162 A. 2d 251 (1960).

¶8The record reveals the following testimony of the arresting officer: “Upon his release from the hospital, I transported Mr. Passarella to the lockup ... he was asked if he would consent to take a Sobermeter test, and it was explained to him that all he had to do was blow up a balloon. At this point he refused to blow up the balloon, and when asked again if he would consent to a blood test, he also refused this. He was again advised of his rights, and he chose to remain silent. . . . Also while in the lockup he was asked certain ques*587tions on the Alcohol Performance Report form, in which he refused to answer any questions asked him at that time.”

¶9The arresting officer continued by saying that from his observation he did not observe anything about the condition of appellee that would indicate that his refusal to answer the questions was as a result of injuries suffered in the accident.

¶10We have said, in Commonwealth v. Gallagher, 3 Pa. Commonwealth Ct. 371, 374, 283 A. 2d 508, 509-10 (1971), that “Section 624.1 and its precursors from other jurisdictions were intended to supply scientific, physiological proof of the presence or absence of the influence of intoxicants . . . thus [providing] means of accounting for aberrant behavior otherwise than as symptomatic of the inevitable blow on the head.”

¶11Had appellee consented to either a breath or blood test his aberrant behavior could more accurately be ascribed to a blow on the head or to simple intoxication. The basic purpose of Section 624.1 would have been fulfilled.

¶12We must conclude, after a careful examination of the record, that the evidence presented does not support the conclusion that appellee suffered from a concussion and was therefore incapable of making a conscious, knowing refusal to either chemical test. On the contrary, it would seem that appellee had sufficient control of his faculties to be able to refuse unequivocally both chemical tests and to refuse to answer questions for a routine report.

¶13No medical doctor testified that appellee suffered an actual concussion; no medical evidence was introduced as to what effects such a concussion would have had on appellee after he was released from the hospital. Testimony as to appellee’s medical “record” were of doubtful validity and merely indicated that a “possible” concussion occurred. As said in Commonwealth v. Har*588ris, 351 Pa. 325, 330, 41 A. 2d 688, 691 (1945), quoted in Scannella v. Salerno Importing Co., 2 Pa. Commonwealth Ct. 11, 15, 275 A. 2d 907, 909 (1971) : “Certainly every ‘act, condition or event’ which some hospital physician places in a hospital record does not ipso facto become competent when later an issue is being judicially tried to which such fact would be relevant if proved by competent testimony.” (Emphasis in original.)

¶14The order of the Court of Common Pleas of Montgomery County is reversed, and the order of the Secretary of Transportation is reinstated.

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