A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

A Panel of the Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Michael Timothy McKELLICK, Appellant, 2011 WL 2438935, 2011 PA Super 127, No. 906 EDA 2010, Filed June 20, 2011. This was an appeal from a Judgment of Sentence in the Court of Common Pleas of Monroe County, Criminal Division at No(s): CP–45–CR–0000589–2009. The judges were FORD ELLIOTT, STEVENS, and DONOHUE. Judge Stevens wrote the Opinion.

On November 12, 2008, Pennsylvania State Trooper Joshua Miller observed a Chevrolet Silverado in front of him sway slightly to the right side of the road, its passenger side tires crossing the white fog line, then swerve sharply onto the right shoulder and come to a stop without using its turn signal. When Trooper Miller approached the vehicle, he asked the driver why he had swerved off the road. The Appellant replied that the truck had “stalled out.” Trooper Miller alleged that he detected a strong odor of alcoholic beverage emanating from Appellant and noted that Appellant’s eyes were “blood shot and glassy.” Trooper Miller asked Appellant how much he had to drink and Appellant replied that he had consumed two beers. Appellant exited the vehicle, stumbling as he did so. Trooper Miller placed Appellant under arrest and transported him to Pocono Medical Center where blood was drawn which revealed that Appellant’s blood alcohol content at the time of testing was 0.23%.

Following Appellant’s arrest but prior to this matter proceeding to trial, Trooper Miller was tragically killed in the line of duty. Thus there were no surviving witnesses to the encounter between Trooper Miller and Appellant other than Appellant himself. However, Trooper Miller’s patrol car was equipped with a dashboard-mounted video camera that activated when he turned on his emergency lights, which recorded the encounter between Appellant and Trooper Miller. The video depicted the Appellant performing field sobriety tests, but does not include audio.

The two judge majority ruled that this video recording was properly admitted into evidence even though there was no testimony that it fairly and accurately depicted the events at issue. Judge Donohue wrote a strong dissenting opinion.

The Criminal Justice Section Student Research Center is open to help you in your court appointed and CJA cases. The hours of operation are Monday through Thursday from 9 a.m. to 3 p.m. The SRC, located in Room 303 of the Criminal Justice Center (The Jack Meyer’s lawyer’s lounge), offers free case law research for court appointed and CJA counsel. The research is provided by law students from local area law schools. Attorneys wishing to request research assistance on a court appointed case can do so either by visiting the lawyer’s lounge directly and meeting with a law student in person or they may submit a research request online at http://www.philadelphiabar.org/page/CJResearch?appNum=1. To make sure a law student will be available for your project, first contact the lounge at 3-7538 or 3-7539 (CJC internal only) or phillysrc1@gmail.com to check student availability.

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