Opinion
May 14, 1980.
Motor vehicles — Suspension of motor vehicle operator's license — Knowing refusal of breath test — Credibility — Conflicting evidence,
1. Questions of credibility and the resolution of conflicting evidence in determining whether a motor vehicle operator was capable of making a conscious and knowing refusal of a requested breath test are for the trial court, not the reviewing court, in a motor vehicle operator's license suspension case. [349]
Submitted on briefs, April 11, 1980, to Judges WILKINSON, JR., ROGERS and MacPHAIL, sitting as a panel of three.
Appeal, No. 466 C.D. 1979, from the Order of the Court of Common Pleas of Montgomery County in case of Commonwealth of Pennsylvania v. Stephen M. Cohen, No. 78-21644.
Suspension of motor vehicle operator's license by Secretary of Transportation. Licensee appealed to the Court of Common Pleas of Montgomery County. Suspension affirmed. BROWN, J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Alvin Freiberg, with him David B. Comroe, Robinson, Greenberg and Lipman, for appellant.
Morris Levin, with him Harold H. Cramer, Assistant Attorneys General, Ward T. Williams, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for appellee.
The very narrow issue presented in this appeal from the trial court's dismissing appellant's appeal from a suspension of his operating privileges for failure to submit to a breathalyzer test is a factual one — does the record support the finding that appellant's refusal was conscious and knowing. It is appellant's position that he was so under the influence of a "small portion of wine" imbibed at an office party, combined with medication, that he was incapable of knowingly making a willful refusal. We disagree and affirm.
The law applicable to this situation is ably set forth by Judge MENCER in Commonwealth v. Passarella, 7 Pa. Commw. 584, 300 A.2d 844 (1973) and by Judge BROWN in his opinion in this case, filed in Montgomery County Court of Common Pleas to No. 78-21644 in the Civil Division, making it unnecessary to repeat it here. No one doubts that questions of credibility and selecting between conflicting evidence are matters for the trial court. McMahon v. Commonwealth, 39 Pa. Commw. 260, 395 A.2d 318 (1978).
Quite apart from the credibility of appellant's testimony, the following testimony of the arresting officer would support the trial court's decision. On cross-examination —
Q. All right. Now, this man was not in good condition, was he, during that entire time?
A. He was — he seemed coherent, knew what we were talking about.
Accordingly, we will enter the following
ORDER
AND NOW, May 14, 1980, the order of the Court of Common Pleas of Montgomery County, Civil Division, entered February 2, 1979 at No. 78-21644, dismissing the appeal and reinstating the suspension of the operating privileges of Stephen M. Cohen for a period of six (6) months is affirmed.