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Commonwealth v. Lehman3/24/2003
1 Russell Edward Lehman appeals from the February 1, 2002, forty-eight (48) hour to eighteen (18) month judgment of sentence imposed after a jury found him guilty of operating a motor vehicle with a blood alcohol content of 0.1% or greater. The charge arose after appellant was discovered passed out in the driver's seat of his car, which was stopped on the side of the road with its engine running. Appellant argues (1) the results of his blood alcohol content test (BAC) should have been suppressed; (2) the evidence presented was insufficient to establish he was in physical control of the vehicle; and (3) his trial was wrongly conducted beyond the 365-day time period prescribed by Rule 600, Prompt Trial.
2 In early morning hours of August 14, 1999, Officer Robert Wagner, a five-year veteran of the Lawrence County New Wilmington Borough Police Department, was stopped by an anonymous passerby and told that about " of a mile down the road, in Mercer County, there was a vehicle parked near the roadway and the driver was slumped over. The passerby expressed obvious concern for the driver's well being (N.T., Suppression Hearing, 1/10/01, at 6-7). Based on this information, Officer Wagner proceeded to the scene, located ΒΌ mile outside of his jurisdiction, and discovered the appellant's car, engine running, headlights on, radio blaring, parked in a closed hardware store parking lot, perpendicular to and facing the road, approximately one foot from the fog line. The driver, Officer Wagner observed, was very sweaty and slumped to the passenger's side. Id. at 8-9. These observations, coupled with the officer's inability to rouse appellant either by shouting at him or shaking him, caused Officer Wagner to fear appellant had a health problem causing his stupor. Id. at 10. When, after a few minutes, appellant finally awakened, he was confused and did not know where he was or why he was there. Id. At this point, having detected the odor of alcohol, Officer Wagner determined appellant was not in need of medical attention and therefore did not call an ambulance. Id. at 29. The officer asked for identification and, after several moments of confusion, the appellant produced his license. Id. at 11. At this point Officer Wagner returned to his cruiser and contacted the Mercer County Pennsylvania State Police because, " felt the individual was under the influence and it was their jurisdiction to handle the incident." Id. at 12. Mercer County advised Officer Wagner it was unable to respond and would relay the information to the State Police barracks in New Castle, Lawrence County. The State Police asked that Officer Wagner stand by until an officer could reach the scene. Id. at 17.
3 Officer Wagner then returned to appellant's vehicle where appellant, still voicing his confusion as to where he was, asked if he could exit his vehicle. Permission was granted. As the two men chatted, Officer Wagner asked appellant if he would perform field sobriety tests.
[The Commonwealth]: And why did you ask him that?
[Officer Wagner]: I just - Basically, for my observation and practice, it was like something I did. I didn't keep notes on him or anything like that. I don't have any notes on the sobriety tests.
[The Commonwealth]: And how did you make that request of him? If you don't recall the exact words, just approximately.
[Officer Wagner]: I don't recall the exact words. I think I just asked him to perform some sobriety tests and he said that he would do them.
[The Commonwealth]: Do you recall whether it was a request rather that an order?
[Officer Wagner]: Yes, it was a request. [The Commonwealth]: What was his response when you
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