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Commonwealth v. Montini4/27/1998
offered are ambiguous and that, in the absence of a rule uniformly requiring the Commonwealth to present such evidence, the defendant impermissibly bears the burden of proving his innocence.
I express no opinion as to the merit of these arguments. Rather, I note that after reviewing Montini's brief, I find nothing that resembles these arguments or supports the position advocated by the Majority. Montini merely asserts that, in order to establish each element of 75 Pa.C.S. § 3731(a)(4), the Commonwealth must always present expert testimony relating back the defendant's BAC to the time that he was arrested. He does not maintain that under the current state of the law it is unclear when expert testimony is required or that the burden of proof is impermissibly shifted. Yet, after concluding that extrapolation evidence was not required in the instant case, the Majority goes beyond that which is properly before it and expounds on a subject that, in the absence of being raised on appeal, is ill suited for our review at this time.
The Superior Court is an error correcting court and we are obliged to apply the decisional law as determined by the Supreme Court of Pennsylvania. See Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 286 (1985)(noting that "the formal purpose of the Superior Court is to maintain and effectuate the decisional law of this [Supreme] Court as faithfully as possible."); Kafando v. State Farm Mut. Ins. Co., 704 A.2d 675, 677 (Pa.Super. 1998). "Nonetheless, a second function of the intermediate appellate court is to stimulate revision in the law by the highest court where reform or clarification is necessary." Morgan v. McPhail, 672 A.2d 1359 (Pa.Super. 1996), aff'd, ___ Pa. ___, 704 A.2d 617 (1997). However, at the same time, we may not act as appellate counsel, nor may we advocate positions not properly presented to us on appeal. Commonwealth v. Wright, 702 A.2d 362, 370 (Pa.Super. 1997); Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa.Super. 1996). Here, in challenging the law as it presently exists, without Montini's encouragement, the Majority oversteps these boundaries. Not only does Montini not object to the current law on relation back evidence, but on the facts of this case, relation back evidence clearly is not required. Thus, by expounding on the perceived frailties of the law relating to extrapolation evidence and stepping out of the argument as presented in Montini's brief, the Majority does not remedy an inJustice. Simply put, the Majority's Discussion does not touch the case. Instead, the Majority is merely airing its own views in an inappropriate forum. Accordingly, while I concur in the result, I cannot join the Majority's Opinion.
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