Opinion
No. 835 C.D. 2012
11-13-2012
Henry John DiSalvatore, Appellant v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Henry John DiSalvatore (Licensee) appeals from the April 2, 2012, order of the Court of Common Pleas of Lawrence County (trial court) affirming the decision of the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (DOT), to suspend Licensee's operating privilege. We affirm.
On October 7, 2011, Corporal Jamie Clark was assisting Trooper Walter Bell at an accident site on Interstate 376 when a passing motorist approached her patrol car. The motorist rolled down his window and informed Corporal Clark that the white van traveling in front of his vehicle was "driving all over the roadway." Corporal Clark immediately left the accident scene in her patrol car and followed the white van for approximately one and one-half miles. Corporal Clark observed that the van had difficulty remaining in its lane of travel, driving onto the berm three times and almost striking roadside construction markers three times.
Corporal Clark testified that Interstate 376 was under construction at the time, so there was only one lane of travel. (N.T., 3/30/12, at 9.)
Corporal Clark initiated a traffic stop of the white van. After requesting Licensee's license and registration, Corporal Clark smelled a strong odor of alcohol emanating from Licensee's breath. She also observed that Licensee had glassy eyes and slurred speech. After exiting the vehicle, Licensee failed the field sobriety tests. Corporal Clark arrested Licensee for driving under the influence and transported him to the hospital for a blood test. Corporal Clark read the implied consent warnings to Licensee three times, but he refused to submit to a blood test.
Thereafter, DOT notified Licensee that it was suspending his operating privilege for eighteen months effective December 6, 2011. Licensee appealed to the trial court. After a de novo hearing, the trial court affirmed the suspension of Licensee's operating privilege. Licensee now appeals from that decision.
On appeal, Licensee argues that the trial court erred in admitting, over Licensee's objection, Corporal Clark's testimony regarding the statement by an unidentified motorist who was unavailable to testify at the hearing. We disagree.
Questions concerning the admissibility of evidence are within the trial court's sound discretion, and we will not reverse the trial court's decision absent a clear abuse of discretion. Commonwealth v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007).
A statement is hearsay only if it is offered to prove the truth of the matter asserted. See Pa. R.E. 801(c). An out-of-court statement that is offered to explain an individual's course of conduct is not hearsay. Jerry v. Department of Corrections, 990 A.2d 112, 116 (Pa. Cmwlth. 2010), appeal denied, 608 Pa. 649, 12 A.3d 372 (2011). In Menosky v. Commonwealth, 550 A.2d 1372, 1374 (Pa. Cmwlth. 1988) (en banc) (emphasis added), our court explained this principle as follows:
[T]he individual who telephoned the police to report the accident stated that the man involved in the accident "appeared to be intoxicated." . . . The individual who made the call did not testify. Thus, this evidence, which was objected to on grounds of hearsay, was inadmissible to prove the truth or falsity of Licensee's intoxication. But the trial judge properly ruled that the statement, as non-hearsay, was admissible for purposes of proving the state of mind of the officer hearing the statement or explaining the reason for the conduct of the officer in response to hearing this statement.See also Commonwealth v. Bishop, 936 A.2d 1136, 1143-44 (Pa. Super. 2007) (determining that the detective's testimony about what the defendant's wife told the detective in a phone conversation was not hearsay because the statement was not offered for its truth but to explain why the detective contacted the FBI); Duffy v. Department of Transportation, Bureau of Driver Licensing, 694 A.2d 6, 9 (Pa. Cmwlth. 1997) (noting that the trooper's testimony regarding a witness's statement to another officer about the identity of the driver in an accident was not hearsay because the statement was not offered for its truth but only to prove that the statement was made).
Here, Corporal Clark's testimony, recalling the motorist's statement that the white van was driving erratically, was not hearsay. The statement was offered to demonstrate why Corporal Clark left the accident scene and followed the van before making her own observations about Licensee's driving. As in Menosky, the motorist's out-of-court statement was not used to prove the truth of the matter asserted; rather, it was used to show the motivation for the officer's course of conduct. Therefore, the trial court correctly admitted the testimony.
In his brief, Licensee also argues that the trial court's admission of the challenged testimony was unfairly prejudicial. At the hearing, however, Licensee objected only on hearsay grounds, not on prejudice grounds. Therefore, this claim is waived. --------
Accordingly, we affirm.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 13th day of November, 2012, we hereby affirm the April 2, 2012, order of the Court of Common Pleas of Lawrence County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge