concurring:
The Supreme Court’s Opinion in Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994), supports the argument that blood alcohol evidence can be admitted without relating it back to the time of driving. Plowever, the Court’s decision was specifically based upon two facts: the defendant’s blood alcohol was significantly higher than the 10% threshold, and the lapse of time between the taking of defendant’s blood and his driving was only forty minutes.1 Id. at 334, 648 A.2d at 531. Subsequent to Yarger the Supreme Court summarized the state of the law regarding relation back testimony, stating: “the stronger the inference of guilt, the less significant is the necessity for evidence of relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused BAC test result to the time of driving.” Commonwealth v. Loeper, 541 Pa. 393, 398, 663 A.2d 669, 671 (1995), citing with approval Commonwealth v. Osborne, 414 Pa.Super. 124, 128, 606 A.2d 529, 531 (1992). However, as appellant argues, the Supreme Court has not determined what temporal threshold and what blood alcohol reading will relieve the Commonwealth of providing relation back testimony. Thus, courts are left without clear guidance: a result which will inevitably lead to inconsistent applications of the rule.
For instance, the defendant in the present case had a higher blood alcohol reading than the defendant in Yarger, but the lapse of time between appellant’s driving and the taking of the blood was almost three times longer than in Yarger. At what point does one factor outweigh the other? Following the Supreme Court decisions in Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), the Commonwealth should bear the burden of producing relation back testimony in all cases in which it seeks to introduce a blood/alcohol test result; otherwise, the result standing alone calls for the jury to make a scientific determination related to blood/alcohol absorption rate without an adequate foundation.
*1337However, I agree with the majority’s decision in this case in light of this Court’s decision in Commonwealth v. Weis, 416 Pa.Super. 623, 611 A.2d 1218 (1992): although I am compelled to note that the decision in Weis relied upon a Supreme Court decision which was not precedential. See Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988).2 Nonetheless, the Weis Court regarded that decision as dispositive despite the decisions in Commonwealth v. Jarman, supra, and Commonwealth v. Mo-daffare, supra. Although I would not have put such an expansive reading on Gonzalez, we are nonetheless bound by the decision to do so.
. However, the Court in Yarger also took some support for its decision from the existence of subsection 5 of the drunk driving statute (75 Pa.C.S. § 3731(5)). See Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994). That subsection has since been held unconstitutional. See Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996). Given that recent decision the Supreme Court may wish to revisit Yarger.
. The lead opinion in Gonzalez did not gamer a majority of votes, and was merely an "Opinion Announcing the Judgment of the Court”. See Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988).