J-A12005-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                   v.

JASON PARKS,

                         Appellant                 No. 1540 MDA 2014


          Appeal from the Judgment of Sentence August 14, 2014
              In the Court of Common Pleas of Perry County
           Criminal Division at No(s): CP-50-CR-0000100-2013


BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                            FILED JUNE 17, 2015

     Jason Parks appeals from the judgment of sentence of forty-five days

incarceration to be followed by county intermediate punishment imposed by

the court after it found him guilty of driving under the influence (“DUI”)—

highest rate, second offense, DUI—general impairment, and summary traffic

violations. We affirm.

     Penn Township Police Officer Christopher Zampogna was on patrol on

November 22, 2012.        At approximately 1:15 a.m., Officer Zampogna

observed a vehicle traveling in front of him going in the same direction. He

saw the car come to a stop in the right hand turn lane before moving to the

left turn lane without signaling. The operator of the car, however, did not

turn left, but proceeded to go straight through the intersection.    Before
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traveling through that intersection, the driver stopped the vehicle in the

middle of the intersection. The driver then made a sharp right turn from the

intersection without signaling, before traversing over a small cement divider.

The car then made a left hand turn, again without a signal, and nearly

collided with the curb on the side of the road. Officer Zampogna effectuated

a traffic stop based on the erratic driving. Appellant was driving.

      Officer Zampogna detected the odor of an alcoholic beverage on

Appellant’s breath and asked Appellant if he had been drinking. Appellant

admitted to consuming one beer. In addition, Appellant’s eyes were glassy

and he was slurring his speech.       Accordingly, Officer Zampogna asked

Appellant to perform field sobriety tests.   Appellant failed the first test, a

one-legged stand test, when he lost his balance after a six-second count.

Next, Officer Zampogna demonstrated the walk and turn test.           Appellant

could not successfully complete that test. He took four steps before losing

his balance and could not walk heel to toe.         Officer Zampogna placed

Appellant under arrest and transported him to Harrisburg Hospital for a

blood draw. Appellant’s blood alcohol content (“BAC”) was .165%.

      Prior to trial, Appellant filed a motion in limine requesting permission

to introduce evidence that Officer Zampogna had been arrested and

charged, but not found guilty, of attempting to acquire a prescription drug

by misrepresentation. Specifically, Appellant alleged that the Pennsylvania

Attorney General’s Office had submitted an affidavit of probable cause for

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arrest based on the officer’s admission that he lied and asked his wife, a

dermatologist, to prescribe him hydrocodone. Appellant wished to introduce

this evidence to impeach the officer, as well as show that Officer Zampogna

had been addicted to hydrocodone. The parties filed briefs on the issue and

the court denied Appellant’s motion.     The matter proceeded to a non-jury

trial before a different judge.

      The court found Appellant guilty of DUI—general impairment, DUI—

highest rate, second offense, and several summary traffic offenses.

Subsequently, on August 14, 2014, the court imposed sentence. This timely

appeal ensued.      The trial court directed Appellant to file and serve a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Appellant complied, and the court which ruled on the motion in limine

authored a short memorandum decision. The matter is now ready for this

Court’s review.     Appellant raises one issue for our consideration: “Is

evidence of prior criminal activity, and prior false statement to law

enforcement not resulting in a conviction admissible to impeach the Affiant

(police officer) in an unrelated proceeding?” Appellant’s brief at 4.

      In considering the denial of a motion in limine, we employ an

evidentiary abuse of discretion standard unless the question is purely one of

law. Commonwealth v. Moser, 999 A.2d 602, 605 (Pa.Super. 2010).

Generally, the admission of evidence “will not be disturbed on appeal unless




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that ruling reflects manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support to be clearly erroneous.” Id.

      Appellant acknowledges that Pennsylvania law precludes a witness

from being impeached by evidence of criminal activity that did not result in a

conviction. However, he argues that an exception should exist because the

officer herein was the only witness to the crime and was arrested and

admitted to providing false information to law enforcement. In support,

Appellant relies on Downey v. Weston, 301 A.2d 635 (Pa. 1973), a

personal injury case.   Therein, the Pennsylvania Supreme Court precluded

cross-examination of an expert physician on whether he had violated his

Hippocratic Oath and ethical standards by disclosing a medical file to the

attorney for a defendant doctor. In doing so, however, the Downey Court

did opine that evidence of misconduct could be admissible on cross-

examination where it “bears directly on the witness’ ‘character of truth.’”

Downey, supra at 639.        The Commonwealth counters that this Court is

bound by prior precedent, which prohibits impeaching any witness with

evidence of a crime for which the witness was not convicted. We agree.

      Pennsylvania Rule of Evidence 608(b)(1) provides that, except for

evidence relating to a conviction of a crimen falsi crime, see Pa.R.E. 609,

“the character of a witness for truthfulness may not be attacked or

supported by cross-examination or extrinsic evidence concerning specific

instances of the witness' conduct[.]”    Pa.R.E. 608(b)(1).    The comment to

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the Rule sets forth that it “prohibits the use of evidence of specific instances

of conduct to support or attack credibility. This is consistent with

Pennsylvania law.    See Commonwealth v. Cragle, 281 Pa. Super. 434,

422 A.2d 547 (1980).” Comment to Pa.R.E. 608.

      In Cragle, this Court noted that, “Pennsylvania case law has long held

that a witness may not be impeached by evidence of criminal activity for

which the witness has not been convicted.”        Id. at 548 (collecting cases).

Therein, defense counsel attempted to cross-examine a prosecution witness

regarding evidence of prior receiving stolen property crimes for which he had

not been convicted.       The trial court declined to permit the cross-

examination. This Court affirmed that ruling. The Cragle Court specifically

addressed Downey, supra, concluding that the statement referenced by

Appellant herein was dicta and even if it was not dictum, it was not intended

to overturn a long line of consistent precedent sub silento, which dated back

to 1798. See, e.g., Stout v. Rassel, 2 Yeates 334 (Pa. 1798) (“The credit

of a witness is only to be impeached by his general character, and not by

charges of particular offences of which he has not been convicted.”).

Since the trial court appropriately applied existing law, we find that it did not

abuse its discretion or commit an error of law.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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