J-S28033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ZBIGNIEW JAROSZYNSKI,

                            Appellant                   No. 1298 EDA 2015


             Appeal from the Judgment of Sentence April 20, 2015
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0002013-2014


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED APRIL 06, 2016

        Appellant, Zbigniew Jaroszynski, appeals from his conviction of driving

under the influence of alcohol (DUI) and driving without a valid inspection. 1

We affirm.

        As aptly stated by the trial court in its July 9, 2015, opinion:

              On February 1, 2014, at approximately 3:30 p.m., Upper
        Moreland Patrol Officer Thomas [E.] Sokolis responded to a
        dispute between a landlord and tenant [(“Earlier Incident”)].
        Officer Sokolis defused the situation by informing Appellant, the
        landlord, that if he wanted the tenant, Virginia Alexander, to
        leave, he would have to evict her through formal proceedings.
        Officer Sokolis also instructed Appellant to stay away from Ms.
        Alexander.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(b), 4703(a), respectively.
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            Approximately two hours later, Officer Sokolis was
      informed of another dispute at the same location. Upon arriving,
      Ms. Alexander informed Officer Sokolis that Appellant, once
      again, entered her room without invitation, removed her
      belongings and drove off in a white Pontiac.

            Minutes later, Officer Sokolis observed a white Pontiac
      nearby, driving along Grant Avenue. Officer Sokolis entered his
      police cruiser and began to pursue the white Pontiac. Officer
      Sokolis caught up with the Pontiac in time to see the vehicle
      make a U-turn and park along Ellis Road. Appellant exited the
      white Pontiac and began walking away from the vehicle. Shortly
      after Appellant began walking, Officer Sokolis stopped him to
      investigate [] Ms. Alexander’s allegations.

           Upon speaking with Appellant, Officer Sokolis noticed that
      he had an odor of alcohol and bloodshot, glassy eyes. Appellant
      was subsequently arrested and consented to chemical testing.
      The results of the tests showed that Appellant’s blood alcohol
      concentration ("BAC") was 0.143% at 6:24 p.m. and 0.139% at
      6:27 p.m.

(Trial Court Opinion, 7/09/15, at 1-2).

      On December 9, 2014, Appellant filed a motion to suppress any

statements or items seized as part of his allegedly illegal DUI arrest. (See

Motion to Suppress, 12/09/14, at unnumbered pages 3-4).       On December

19, 2014, the trial court conducted a hearing on Appellant’s motion. Officer

Sokolis testified about the events leading up to Appellant’s arrest; he made

no mention of Appellant appearing intoxicated during the Earlier Incident,

which occurred approximately two hours before his arrest.        (See N.T.

Suppression Hearing, 12/19/14, at 5-14). At the conclusion of the hearing,

the trial court denied Appellant’s motion.




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       On March 18, 2015, the case proceeded to a one-day bench trial. The

court granted the Commonwealth’s motion to incorporate the testimony

from the suppression hearing over Appellant’s objection.     (See N.T. Trial,

3/18/15, at 3-4). Officer Sokolis testified “from where [he] left off [at the

suppression hearing].” (Id. at 5). During the course of defense counsel’s

cross-examination, the officer said for the first time that he observed

Appellant display signs of intoxication during the Earlier Incident. (See id.

at 17). The trial court sustained the Commonwealth’s objection to defense

counsel’s attempt to cross-examine the officer about the discrepancy

between his testimony at the suppression hearing, in which he did not

mention Appellant being intoxicated during the Earlier Incident, and at trial,

wherein he stated that he did observe signs of intoxication. (See id. at 19-

20). The court also sustained a similar objection by the Commonwealth to

defense counsel’s attempt to question Ms. Alexander about whether

Appellant appeared intoxicated when he was at her apartment that

afternoon. (See id. at 35). At the conclusion of trial, the court convicted

Appellant of DUI and driving without a valid inspection.    (See id. at 58).

Appellant timely appealed.2



____________________________________________


2
  Appellant filed a timely statement of errors complained of on appeal on
June 3, 2015 pursuant to the court’s order; and the court filed an opinion on
July 9, 2015. See Pa.R.A.P. 1925.



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       Appellant raises one issue for this Court’s review: “Did the trial court

abuse its discretion when it precluded the defense from questioning Officer

Sokolis and Ms. Alexander regarding Officer Sokolis’ prior statements which

would have affected his credibility?”            (Appellant’s Brief, at 6) (most

capitalization omitted). Specifically, Appellant maintains that the trial court

abused its discretion when it precluded him from cross-examining Officer

Sokolis about his trial testimony that Appellant appeared intoxicated during

the Earlier Incident, where he did not make such statement at the

suppression hearing.3 (See Appellant’s Brief, at 12). He further maintains

that the court erred in prohibiting him from cross-examining Ms. Alexander

about “whether or not she noted any signs of intoxication from [Appellant]

during their . . . interaction” two hours prior to his arrest for DUI. (See id.

at 13). Appellant’s issue does not merit relief.

       Our standard of review of this matter is well-settled:

       A trial court has broad discretion to determine whether evidence
       is admissible, and a trial court’s ruling regarding the admission
       of evidence will not be disturbed on appeal unless that ruling
       reflects manifest unreasonableness, or partiality, prejudice, bias,
       or ill-will, or such lack of support to be clearly erroneous. In
       addition, the trial court has broad discretion regarding both the
       scope and permissible limits of cross-examination. The trial
____________________________________________


3
  Appellant also claims that the trial testimony was inconsistent with the
officer’s report regarding the Earlier Incident because it did not mention
Appellant being intoxicated. (See Appellant’s Brief, at 12). However, this
issue is waived where Appellant did not raise it at trial. See Rosser, infra
at *8; see also Pa.R.A.P. 302(a) (“Issues not raised in the [trial] court are
waived and cannot be raised for the first time on appeal.”).



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      judge’s exercise of judgment in setting those limits will not be
      reversed in the absence of a clear abuse of that discretion, or an
      error of law.

Commonwealth v. Rosser, ____ A.3d _____, 2016 WL 769485, at *8 (Pa.

Super. filed Feb. 26, 2016) (en banc) (citations and quotation marks

omitted).

      Pursuant to the Pennsylvania Rules of Evidence, “[t]he credibility of a

witness may be impeached by any evidence relevant to that issue, except as

otherwise provided by statute or these rules.” Pa.R.E. 607(b). Further:

      [A]n attorney may discredit a witness by cross-examining the
      witness about omissions or acts that are inconsistent with his
      testimony. . . . However, the scope and limits of cross-
      examination [are] vested in the trial court’s discretion and that
      discretion will not be reversed unless the trial court has clearly
      abused its discretion or made an error of law.

Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. 2005)

(citation omitted). Likewise, “[t]he court should exercise reasonable control

over the mode and order of examining witnesses and presenting evidence so

as to . . . avoid wasting time[.]” Pa.R.E. 611(a)(2).

      Here, at the suppression hearing, Officer Sokolis did not mention

whether Appellant was or was not intoxicated at the Earlier Incident. (See

N.T. Suppression Hearing, 12/19/14, at 5-20).        However, at trial, Officer

Sokolis testified that Appellant had been intoxicated at that time, and

Appellant   sought   to   cross-examine    the   officer   about   this   alleged

inconsistency. (See N.T. Trial, at 17).

      Specifically, the following relevant exchange occurred:

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     [APPELLANT’S COUNSEL:]        The part [of the transcript] I have
     just handed you is the part of the suppression hearing in which
     you are discussing your interaction with [Appellant] [earlier] that
     afternoon, isn’t it?

     [OFFICER SOKOLIS:]            Yes.

     [APPELLANT’S COUNSEL:]      Could you identify the line number
     in that testimony where you describe any signs of intoxication
     that you observed during your first interaction with [Appellant]?

           [COMMONWEALTH]:         Objection, Your Honor.      I would
           object to relevance again. We are focused on the time he
           was driving the vehicle within two hours. What happened
           at 3 p.m. that day is not relevant to those issues.

           THE COURT:        Yes, I would like to hear your response
           to that.

           [APPELLANT’S COUNSEL]:        Your Honor, this is relevant
           for two reasons. First, the testimony if [Appellant] were
           intoxicated that afternoon, that will make it more likely
           that he was intoxicated when he was stopped later that
           day after driving. So as I mentioned before, this narrows
           down the possibility of when he could have drank alcohol.
           It’s our position he did not drink anything that afternoon,
           and did not drink anything while he was driving. He drank
           when he was already─when he had already stopped his
           vehicle behind his house.

                 Furthermore, Your Honor, this testimony goes to the
           credibility of the officer.

           THE COURT:         I am going to sustain the objection. All I
           really care about is what happened two hours prior to the
           time of his testing.

           [APPELLANT’S COUNSEL]:      Your Honor, this is at 3:30,
           Your Honor, and he was stopped at 5:45.

           THE COURT:        Yeah, but the test was taken at . . . 6:24
           and 6:27.

           [APPELLANT’S COUNSEL]:         That’s correct, Your Honor.

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               THE COURT:      All right. Narrow it down. I’m not sure I
               understand where you are going with this.

               [APPELLANT’S COUNSEL]: Your Honor, where I am going
               with this is today in court is the first time that this officer
               has testified under oath that [Appellant] had been
               intoxicated that afternoon. Your Honor, the fact whether
               or not [Appellant] was intoxicated that afternoon would
               make it more or less likely that he was intoxicated, that he
               was already intoxicated when he was driving.

               THE COURT:        So for the sake of efficiency then, all I
               am really concerned about is the circumstances of
               [Appellant’s] arrest.

(Id. at 19-21).

         The Commonwealth also objected to Appellant’s attempt to elicit

testimony from Ms. Alexander about whether Appellant appeared intoxicated

earlier that day.     (See id. at 35).         Specifically, the following occurred at

trial:

               [APPELLANT’S COUNSEL:]         Your Honor, Miss Alexander
               will testify . . . that when she saw [Appellant] at around
               3:30 that afternoon, he was not intoxicated. . . .

               THE COURT:         All right.

               [COMMONWEALTH]:          Your Honor, we would object . . .
               that is not relevant to the issues before us today[.]

               THE COURT:        Yes, . . . just for efficiency’s sake, I really
               want to concentrate on the time frame surrounding the
               arrest, so whatever testimony you have of Miss Alexander
               will be permitted as it relates to that incident.

(Id.).

         At the conclusion of trial, the court convicted Appellant of violation of

section 3802(b) of the Vehicle Code, which provides:

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        An individual may not drive, operate or be in actual physical
        control of the movement of a vehicle after imbibing a sufficient
        amount of alcohol such that the alcohol concentration in the
        individual’s blood or breath is at least 0.10% but less than
        0.16% within two hours after the individual has driven, operated
        or been in actual physical control of the movement of the
        vehicle.

75 Pa.C.S.A. § 3802(b).

        Based on the foregoing, we conclude that the trial court properly

exercised its discretion in limiting Appellant’s line of inquiry regarding

Appellant’s intoxication over two hours before his arrest. Based on the plain

language of the statute, this evidence was irrelevant for purposes of

establishing a violation of section 3802(b) where the proper inquiry was

whether Appellant had a BAC of “at least 0.10% but less than 0.16% within

two hours after [he had] driven, operated or been in actual physical control

of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(b).

        Also, while we acknowledge that a party has a right to cross-examine

a witness for purposes of challenging credibility, we also are mindful that

“the scope and limits of cross-examination [are] vested in the trial court’s

discretion and that discretion will not be reversed unless the trial court has

clearly abused its discretion or made an error of law.”    Bricker, supra at

1019.     Here, the trial court presided over the suppression hearing, was

aware of any inconsistency in the officer’s testimony, and “knew it would

have the opportunity to review the prior statements and weigh Officer




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Sokolis’s credibility without the need for additional testimony.”     (Trial Ct.

Op., at 7).4

       Therefore, we conclude that the court properly exercised its discretion

to limit Appellant’s cross-examination of Officer Sokolis about his intoxication

at an incident two hours prior to his arrest. See Bricker, supra at 1019.

Appellant’s issue does not merit relief. See Rosser, supra at *8.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2016




____________________________________________


4
  Moreover, we observe that the officer’s trial statement does not actually
conflict with anything he said at the suppression hearing. At that hearing,
the Commonwealth did not ask the officer if Appellant appeared intoxicated
at the Earlier Incident; and Appellant’s counsel did not ask the officer
anything at all about the Earlier Incident. (See N.T. Suppression Hearing, at
6-8, 15-19).



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