By Burt Rose
The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. John HOOVER, Appellant, 2011 WL 776114, 2011 PA Super 42, No. 891 WDA 2009 (March 7, 2011), an appeal from a Judgment of Sentence of the Court of Common Pleas of Venango County, Criminal Division in a DUI case. The case was before Judges ALLEN, OLSON and COLVILLE, who wrote the Opinion.
The issue was whether the trial court erred when it ruled the Commonwealth would be allowed to cross examine the Appellant’s character witnesses by questioning them as to their knowledge of his prior DUI arrest and/or his participation in an Accelerated Rehabilitative Disposition program with respect to that prior DUI case. The Court ruled that the Appellant’s participation in an ARD program was not a conviction for impeachment purposes; thus, the trial court erred when it ruled that the Commonwealth would be permitted to cross examine Appellant’s character witnesses by questioning them as to the prior DUI arrest.
Appellant wished to present character witnesses to show that he was law abiding and that he was not the kind of person who drives while intoxicated. If he had presented evidence of good character for being law abiding, his position that the unusually high BAC (.382%) resulted from erroneous testing could have been persuasive to the jury. Appellant’s expert indicated Appellant could not have had such a high BAC level while the Commonwealth’s expert indicated he could. Also, the Commonwealth’s evidence allowed for the inference that the Appellant may have had a history of drinking and driving over an extended period of time. Appellant’s character evidence of being law abiding would have been in direct opposition to such an inference.
Judge Colville wrote that the Court could not conclude that the lack of character evidence, which was precipitated by the trial court’s erroneous pretrial ruling, could not have contributed to the verdict and therefore the error was not harmless. The Court vacated the Appellant’s judgment of sentence, reversed the trial court’s order denying his pretrial motion in limine and remanded the case for further proceedings.
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