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Home My WebLink About97-05211 ..~ I i I I I - ' ..... I ~ i ( ", , , , 1'1 ", " " '11'P 1",1" ., ., , , ., , '11,'1' "I' ,',J " " Ijq' .,',',',!' " . w " , , , ., I, , . I , I , , , , ,'1' , " ., , , ,,' , , , , .11 .1 , ,', " " . "', Ill, , , , ., " " " , , " , , " i',1 , i' , " , " " ',' , , .i " , I " , , " ., " " -j'j .1, , ,,, I' I: , , , , , ' ,,1"1 ;"'\'(':'.1 , " " I I" ].'1 ','I " , ,1),\' , ,', , Ii :1; ,I '.It I,' ',',I;, ., I, .' ,I., " ,. ,';' I"~ I , , , 'il ,,11 , " ,,' ,I " .\ " ,", " ", ;,: ", , " 'II,' '.' ,I' " " ". ',I' , " , ' ',' I , " ! ,'I ',", 'i , \,1 r;. " I " " " ",' ,11'" ., , " I,. , '", I , " " ., ;1' ~~~~~~~~**~---**---_._-~----~-~ ~ 1__ ---...,-.... ...- ...- H - ,,,.-. --- . . . '" . .. . . ... . .. ",. . H..' "'.' . ~l 8 :i IN THE COURT OF COMMON PLEAS : ~; OF CUMBERLAND COUNTY ~ ~l ~ :1 STATE OF f~~t. PENNA, : vi '" ~ ~ " 8 VAN CARLTON WELLS * I~ ~ I~ I~ 8 8 J. I l!I ~ ~ :a .,.:. .:.:. .:.:. .~:. .~:' .. ... " ~ N 0, ...';l7:-~:.!J.l. .... . ...... 11)911 ~ ~ ,;, ~ \,1'1",...11:; THERESA R. RINGGOLD WELLS ~I ~ ~I ~I ~l ~ ~ DECREE IN DIVORCE fII~ I) 15" AND NOW, . . . . . .. . . . . . . .. '. 19....... U~ C~ LJ~ decreed that ............ . . . ,e ... .... . . . . . . . . . . . . . . and11e':~~AP' ,'rJC;ol.J ~~/(~ It is ordered and . . . . . . '. plaintiff, . . . . '. defendant, 'J ~ ~ ~ ~ g 8 ~ ~ ~ ~ ~ ~ ~ 8 ~ . . -.'-- .- .. .. '*' ,>>:. 'lI!:' ore divorced from the bonds of matrimony, The court retains jurisdiction of the following claims which have been raised of record in this action for which a final order has not yet been entered: ....,.,.....,..., " II v T h p ^tt..t:~ Prothonotary . . . .:<<. <c. .:<<. .:.:. .:.~. <<<. .:+;. -:.:. .:.:. :+:- .:+:. -:+;. .;.;. .:+;. ,~.;. ,', ~ ,', ~ 8 8 ~ ,'~ $ 8 * 8 8 ($ 8 ~ $ ,;, ~ ~ ~ ~ ,. " " , ,. " ..... ('1') /:'.: h; tr. " I~~ .. ~;~ ,'. '.4,r:! 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IAttect'l thIllorm 10 IhI front of lhe InIIIlpl.co, Of on thl blek il'Plce doeI not po""1. I 'Writ,'RltUm R~pt RlQu,,'~'on 1M m51lpilCl below th, article numb.r. ti aTM RetlJ/11 RltCelpt willlhow to whom the ar11c1, WII dt~v.rad end Ihl dati i dItliv.tld. \ . + 3. Altic e Addre..ed 10: -/z..<'~9Y /' aid /.1..,"'- ~ '.I" / / , ~ ../ //..."5;; ~. )cl. ,,"" / ~-;-:1J.U 1."5" . A-4~?,'/'-':' #/7/>(; 5. Ree.lvod By: (Print NSIM) 1 '.I . . ,...., I B1so wish to recel... th. loIlowlng ..rvle.. (for en extralae): I 1. 0 Addre...... Addre.. 2. . ReslJlcted DelIvIlfY Consull postma.ter lor I.e, I 4.. Artlele Number I f ! l- I 4b. ervlce ype o Reglelerod . Ctrtlfted o Expre.. Mall 0 InlUred RatumRecelptIofMerl:llendlIB 0 COO 7. Date 01 Delivery . : \ , ~ . :, , , I I .'. I ( I I, \, I , , " . ,_. ,...... , ...-"/' _.~. , tv.. C) 7 ~'.J I..l frl ~lJ Ti <.~ STIPlJLATION AGAINST UF.NS THIS AGRBBMBNT made the .J2~ ~ay of _(/,I,~4rr by and between ROBERT J. COLDSMITH, III here inafter CONTRACTOR, , 1997, referred to aB and PAUL W. WARD, III and LAURIE A. WARD, hp.reinafter referred to as OWNERS whereby the former undertook and agreed to erect and construct improvements to a dwelling house on the certain lot of ground situate in Upper Frankford and Lower Mifflin Townships, Cumberland County, Pennsylvania, more fully bounded and described un the attached Exhibit "A", NOW THEREFORE, THIS AGREEMENT WITNESSETH I That the said CONTRACTOR, for and in consideration of the sum of One ($1.00) Dollar to them in hand pa.ld by OWNER, the rece.lpt whereof is hereby acknowledged, and the further consideration mentioned in the agreement aforesaid, for himself and his subcontractors, and all parties acting through or under him, covenants and agrees that no mechanic's liens or claims shall be filed or maintained by him or any of them against the said buildings and the lot of ground appurtenant thereto tor or on account of any work done or materials furnished by them or any of them under said contract or otherwise, for, towards, in, or about the erection and construction of the said buildings on the lot above described, and the said CONTRACTOR, for himself, their subcontractors and others under them hereby expressly waive and relinquish the right to have, file, and maintain any mechanic's liens or claims against the said real estate and/or buildings or any of them, and agree that this instrument, waiving the right of lien, shall be an independent covenant. '_' ~-/..J.,~ '/'l.<:,/ ...( WITNESS our hands and seals this _,I('"day of Sf' I"~,,,.~ , 1997, intendin~ ~ be lega:ly bou~h::e~ (~/ ..1"/ ~~~;,p, lA..)a QJ~..(..,,-- '.. ~ (. /~~./ .. (-ROJrRT J, CotOSMITH, III, / ontractor PU'--{!{" ~VCL(./.JlI PAUL W. WARD, III, Owner ..---....... (~-t1 ~ /,/U_~vJ 1- :& '" I I . ' ,. 'U() ((. ( ( CO.. [,1./ LA IE A. WARD, Owner .... ~" I l:J ll'; ,~. .. c , LI.i, ..... r,. " ".( , ~I' II,.: \, ., p, . ('-~< (:1, 1;\, J~ " t" rc' V, " C- O 0' . " 'I', 1'1,1 r~j G ',,1 ,;11 " , ., , , '\1 . . " I' )" " , . " . .. : . r-j i ' I '1" .3 ~ ~ ~ .. J tJ ~ I, 'i , " ~ ~.' ...'; ~r,,! ij:':' ?'i " 4.1" ,,'I, ""~ . I "" r' I' CI \/1 lr. (~ t';~ .. r.~ ... ::': ...: , . i:l~ C'" rl.. .I.!.; ". r-. ~.,.. ., , , ., ,,, , ' c. ~:r; lj , -< J . "" ~ . 1 ~ I , r! .~ 1 I I I 1 I I I I , , " , I' " " " ,J; ~ , " )' ,I 1 , I II .j' "1',1 ",I'li I I i"1 " I ", " " 1;0 ii .. , , ., , I "I " 1, " I , I I .. i' , ,I I \, I " " I' ,I ",' ".' 1,1 'I j '.... if 1 I. ',I', I' , " ., ,. " ~ ',{ i':: to,. .- ~,~ \\" ., ~:J ,~ i' ".' ~~ ....... ~( \ ~ I'" \' ~ '~ l)I' r (l. " c" JJ; l'J vI (') ~~ L"" I' , , '\1 , J ,.. ~V; I ", ~' " 1-' ., 0 V ',.J ~ '~ ~h - S~ J l~ ~ ,s" Ye t: ~ ~I ~ i ~ ~ ~<... ! ~ . ...' PATRICK f', LAUER. JR. Attorney .1 L.w 210tl ""0'110'5,..., Au" Bqildin. Camp Hill. PA 110 II (717) 16:1-18IX) O~EP 2 5 ~97J COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO I 'I '/ - " .i I '1 C', (" ( - r" v. DUANE EDWARD KOUGH, Appellant LICENSE SUSPENSION APPEAL ~PEAL FROM SUSPENSION OF OPERATOR'S PRIVILEGE AND NOW comes the Appellant, Duane Edward Kough, by and through his attorney, Patrick F. Lauer, Jr., Esquire, and respectfully avers the following: 1. Appellant resides at 235 Steelstown Road, Newville, Cumbexland County, Pennsylvania 17241. 2. The Appellant received a Notice dated September 4, 1997, that as a result of his alleged violation of Vehicle Code Section 1547, Chemical Test Refusal, his driving privilege was being suspended for a period of one year, effective suspension date October 9, 1997, at 12:01 a.m, A true and correct copy of the , Notice is attached as Exhibit "A". 3. The Appellant submits that the police officer lacked a I reasonable basis to request Appellant to submit to a chemical test. 4. The Appellant submits that he did not intelligently and voluntarily refuse to submit to a chemical test. IJtNJIt A 1 2 3 THE COURT: Good morning. 4 MR. KABUSK: Good morning, Your Honor, This 5 is the case Duane Edward Kough, K-o-u-g-h, the Commonwealth 6 of Pennsylvania, Department of Transportation, Bureau of 7 Driver License, case number 97-5213 Civil, Licenae 8 Suspension Appeal. 9 By official notice dated and mailed September 10 4, 1997, the Department of Transportation notified the 11 motorist, Duane Edward Kough, operator's license number 12 22220308, that as a result of his violation of Section 1547 13 of the Vehicle Code, relating to chemical test refusal on 14 8/14 of 1997, his driving privilege was being suspended for 15 a period of one year, The Department is ready to proceed. 16 THE COURT: Ready, Mr. Lauet'? 17 MR, LAUER: Yes, sir. 18 MR. KABUSK: The Department calls Sergeant 19 Clifford Carlsen. 20 21 22 23 24 BY MR, KABUSK: 25 Q Friday, Dscember 5, 1997 Whereupon, CLIFFORD A, CARLSEN having been duly sworn, testified as follows: DIRECT EXAMINATION Sergeant Carlsen, please state your nams, and 3 1 spell your last name for the record? 2 A My name is Clifford A. Carlsen, 3 C-a-r-l-s-e-n. 4 Q Where are you employed? 5 A I am a patrol sergeant with the City of 6 Harrisburg Police Department. 7 Q How long have you been so employed? 8 A Nineteen years, 9 Q During the course of your official duties, 10 have you had occasion to investigate an alleged incident of 11 DUI on or about 8/14 of '97? 12 A Yes, sir, 13 Q Would you tell the court about that incident, 14 please? 15 A Yes, sir. on 8/14/97, which was a Thursday, I 16 was dispatched to the area of Thirteenth and Derry streets 17 in the city of Harrisburg, Mora specifically, 1252 18 Mulberry, which is a connector with Thirteenth and Derry to 19 investigate a traffic accident involving two vehicles. 20 The dispatch officer, upon giving the call, 21 told my -- me and another officer that responded that it was 22 a two vehicle accident, That one of the drivers of the 23 vehicles involved, which was a black male, had been thrown 24 from the car. so, henceforth, not only were the police 25 dispatched, but also an ambulance crew as well as fire. 4 1 I responded to the call by traveling 2 westbound on Derry street, utilizing the police unit's red 3 lights and sirens. As I reached the intersection of 4 Thirteenth and Derry, which is approximately fifty feet from 5 the accident scene, I turned off the siren, and as I was 6 crossing through the intersection, I noticed a white male 7 running northbound on Thirteenth street, 8 This white male, as he was running, his arms 9 were flailing allover the place, He was running almost in 10 a state of falling forwards. And behind the white male wa~ 11 a group of eight to ten black males that were chasing him, 12 The black males caught up with the white male 13 in the area of the one hundred block of South Thirteenth 14 street, where they tackled him to the ground and began to 15 beat him, Using the police car, I pulled across the street 16 up on to the curb and disbursed the crowd, 17 It was later that I learned that the white 18 male that the crowd had chased was Duane Edward Kough, Mr, 19 Kough is present today in the courtroom, sitting to the 20 right of Mr. Lauer, 21 Medical assistance was requested for Mr, 22 Kough, He was bleeding about the mouth and the eyes, about 23 the head. He was guarded until the ambulance crew arr~ved, 24 He was then put on a gurney and put in the back of the 25 ambulance. 5 1 In the rear of the ambulance, I had a moment 2 or two to talk to him, He was mumbling out of control. He 3 was saying over and over that it was, it was unfair that the 4 crowd did this to him, that he wasn't running away from the 5 accident, And he didn't really understand why the crowd had 6 to beat him up, 7 As he was giving me this account of what 8 happened, I noticed an overwhelming odor of an alcoholic 9 beverage upon his breath, or an alcoholic substance on his 10 breath, At this point, my contact with hJ.m ended and I went 11 back to the accident scene, He was safe in the ambulance 12 and the ambulance was taking him to Harrisburg Hospital. 13 I raturned to the accident scene where I got 14 the information on the cars involved, I supervised the 15 removing of the driver that had been thrown partially out of 16 the other vehicle. He was also taken to Harrisburg 17 Hospital, 18 I then left the scene to one of the patrol 19 officers to get the vehicles towed from the scene and to 20 clean up the roadway, And I proceeded to Harrisburg 21 Hospital, 22 The time period from when I spoke with Mr. 23 Rough in the ambulance to the time period that I arrived at 24 at the hospital is approximately thirty to forty minutes. 25 Upon my arrival at Harrisburg Hospital, I 6 1 went up to the nurses station and requested the whereabouts 2 of the motor vehicle accident victim that was brought in by 3 Harrisburg River Rescue, They indicated to me that he was 4 back in the trauma area, I went back to the trauma area 5 where I found Mr, Kough still on a gurney, being treated by 6 about eight to ten medical personnel, 7 I watched the medical personnel treat Hr, 8 Kough for about ten minutes before there was a break, They 9 then -- the doctor in charge then indicated to me that I 10 could go ahead and speak to Hr. Kough. 11 I introduced myself to Hr, Kough and I told 12 him that I was the officer that was going to be responsible 13 for investigating the traffic accident that he was involved 14 in, Mr. Kough became extremely belligerent towards me, he 15 really didn't want to talk about the accident. He wanted to 16 know what I was going to do to the individuals that 17 assaulted him, 18 I explained to Hr, Kough that we would take a 19 report on the assault against him and we would investigate 20 that to the fullest extent we could, but that my purpose 21 here at that point was to investigate the traffic accident. 22 Mr, Kough again reiterated to me that I was 23 to do something about these individuals that assaulted him. 24 And, once again, I noticed on his breath an overwhelming 25 odor of an alcoholic substance. 7 1 At this time, I informed Mr, Kough that he 2 was under arrest for driving his vehicle under the influence 3 of liquor, alcohol or a controlled substance, and that I 4 would be requesting medical personnel to be withdrawing 5 blood from him for the purpose of determining what his blood 6 alcohol content was, 7 I also informed Mr, Kough that at this point 8 his Miranda rights do not apply, that his Miranda rights 9 apply only after the blood is drawn, and that we begin 10 questioning about the accident, and that if he failed to 11 provide a sample of his blood, as required, that he would 12 lose his driver's license for a period of one year, and that 13 his refusing to provide this sample of blood would be used 14 against him in a court of law, 15 My explanation to him of that information 16 didn't go as easy as it did here on the stand. He kept 17 interrupting me, He kept yelling obscenities at me, He 18 would stop and he would wad up in his mouth a bunch of blood 19 and spit it at the nurses and the doctors, He would yell 20 obscenities at the doctors, 21 At one point he explained to me that he has 22 the fucking right to drive his vehicle whenever he wants, 23 and that we have no right to take his blood, 24 I again explained to Mr, Kough that I wanted 25 to take his blood for the purpose of determining his blood 8 1 alcohol content, and that if he refuses to give up the 2 blood, that I will be filing a form with PennDOT and that 3 his driving license privilege would be suspended for a year, 4 Mr. Kough told me to go fuck myself, that he wasn't giving 5 up any blood, 6 He then became so violent in the ER that the 7 hospital staff had to tie him on to the gurney, and at that 8 point I left his side. 9 Q Thank you, During the course of your 10 conversations with him, did you ask him if he was driving 11 the 12 13 14 HR. LAUER: THE COURT: HR. LAUER: Objection, leading. Pardon me? Objection, it is a leading 15 statement, 16 17 somehow? 18 BY MR, KABUSK: 19 Q Officer, how did you come to think that Mr. 20 Kough was the driver of the vehicle involved in the 21 accident? 22 A There was three different ways. One was the 23 crowd, as I pulled up, was yelling there goes the driver. 24 HR. LAUER: Objection. That is hearsy, Your 25 Honor. THE COURT: Do you want to rephrase it 9 1 THE COURT: That is perfectly admissible for 2 why the policeman does what he does, MR, KABUSK: That was my argument, Your 3 4 Honor. 5 6 7 8 9 THE WITNESS: The second THE COURT: I didn't get all that, THE WITNESS: I'm sorry, THE COURT: Something about the crowd, THE WITNESS: As I pulled up, Your Honor, and 10 got out of the car, the crowd was yelling that there goes 11 the driver, and they were pointing at Kough. 12 THE COURT: Okay, 13 THE WITNESS: There was a witness at the 14 scene -- a witness, there was about thirty to forty people 15 at the scene, but there was one individual who did give his 16 name and address and was willing to testify that indicated 17 that Mr, Kough was the driver, 18 MR, LAUER: Objection, hearsay, 19 THE COURT: Same reason for refusing that 20 objection, sir, this is all part of the investigation, 21 MR, LAUER: Yes, sir. 22 THE COURT: Do you want to give me more 23 details on that? Or do you have them with you? 24 THE WITNESS: I can give you more details on 25 the witness, yes, Your Honor, 10 1 THE COURT: Name, address, Go ahead. 2 THE WITNESS: The witness was John L, snyder, 3 He is a white male, thirty. His address is 1234 Mulberry 4 street in the City ot Harrisburg, 5 THE COURT: You had a third reason? 6 THE WITNESS: Yes, Your Honor. It was trom a 7 statement that Mr, Kough gave to me both in the ambulance as 8 well as in the hospital, The statement in the ambulance was 9 that he was driving, but they didn't have to do this to him, 10 And the second statement was in the hospital, that it was 11 his tucking right to drive his truck whenever he wanted to. 12 BY MR. KABUSK: 13 Q Did the motorist submit to a chemical test as 14 you requested? 15 A 16 17 18 BY MR, LAUER: 19 Q Sir, the name of this witness, what is the 20 name of the witness you said who observed my client driving 21 the vehicle? 22 A 23 Q 24 A 25 Q No, sir. MR, KABUSK: No further questions. CROSS-EXAMINATION Yes, sir. What is the name of that person? John L. Snyder. Did that witness give you a written 11 /'" 1 statement? 2 A No, sir. 3 Q Had you ever spoken to that witn..s befors? 4 A Before this incident? 5 Q Yes, 6 A No. 7 Q So you didn't know if this person was a 8 truthful person, or who this person was from anyone else, 9 agree? 10 A No, I had never met him before. 11 Q How much time did you spend with that person? 12 A Maybe three minutes, 13 Q Okay. For the record, was this person a 14 black male or a white male? 15 A White male, 16 Q Okay, Now, was this an individual who was 17 just driving by or standing on the corner or what? 18 A He was sitting on his front porch which would 19 have been right where the accident occurred. 20 Q Did this witness tell you that there were two 21 people in the vehicle? 22 A Yes. 23 Q And the vehicle that is alleged, that was 24 driven by my client, correct? 25 A That is correct, yes. 12 1 Q okay. How did this witness identity Mr. 2 Kough as being the alleged driver? 3 A He stated to me that the individual that was 4 driving was the one that the crowd beat the shit out ot. 5 Q Okay. The other individual that was with Mr, 6 Kough got beat up as well, Isn't that trus? 7 A No, 8 Q That person was chased, isn't that true? 9 A Not to my knowledge, no. 10 Q Did you speak to the other individual that 11 was in the car with Mr. Kough? 12 A Yes, I did. 13 Q He didn't tell you that he was chased by 14 these black males? 15 A No, 16 Q Did you ask him if he was? 17 A Yes. I asked him if he was okay. He said he 18 was not injured, and he was not hurt. He was standing 19 beside -- or behind the rear of the pick up as I arrived. 20 He never moved anywhere, sir. 21 Q Now, what you observed though were a large 22 number of black males chasing Mr. Kough, correct? 23 A Correct. 24 Q How many black males did you observe chasing 25 Mr. Kough? 13 1 2 3 guys? 4 5 6 7 8 9 10 agree? 11 12 13 right? 14 A From around his eyes, yes, 15 Q Blood coming from his mouth, right? 16 A Yes. 17 Q He was knocked to the ground, in fact, he 18 suffered some head injuries as well, isn't that true? 19 A He had, to my knowledge, he had lacerations, 20 I don't know how substantial the head injuries were, 21 Q Now, basically you observed these people 22 punching Mr, Kough in the head area though, agree? 23 A Kicking, 24 Q Kicking? 25 A Yes. A Q I would say between eight to ten. Were 80me of these people large men, big A Q A Q A Q I would say normal. Not huge, not small. Eight to ten guys chased Mr. Kough, right? Yes. Tackled him, right? Yes. And then basically beat the pulp out of him, A Q Correct, Mr, Kough had blood coming out of his eyes, 14 1 Q You saw them winding up with their teet 2 kicking, agree? 3 A Yes, 4 Q Kicking towards his mouth, towards his eye., 5 towards his ears, towards the back ot his head, his whole 6 head area, agree? 7 A They pretty much had him circled, I didn't 8 see exactly where. 9 Q How many of these eight to ten people, almost 10 all of them, were basically doing a number on him, isn't 11 that true? 12 A Yes. 13 Q Now, Mr. Kough then, was he picked up or did 14 you go up to him and stop these people from beating him up? 15 A I chased the people off of him, away trom 16 him, 17 Q Did you investigate with any of these 18 witnesses to tind out the names of any of these people who 19 assaulted Mr, Kough? 20 A No. Atter my conversation with Mr, Kough at 21 the hospital about the driving, I then asked him questions 22 about the assault, he told me to get the tuck away, that he 23 would handle it himselt. 24 Q So my point being is you did nothing atter 75 that point in time, even though he said he would take care 15 ~- 1 of it himself, you a8 a police officer did nothing to 2 investigate what you actually observed wa8 a crims, agree? 3 THE COURT: Well, let's leave that case for 4 another day, Mr, Lauer. 5 MR. LAUER: Okay, Judge. 6 BY MR. LAUER: 7 Q Now, then when you went to the h08pital, 8 about thirty minutes after, Mr. Kough was being treated by a 9 large number of doctors, agree? 10 A A large number of medical staff, 11 Q Medical staff, right, And you don't know how 12 those injuries that he sustained affected his judgment or 13 his mind or his physical abilities, agree? 14 A Agree, I am not a doctor, 15 Q Right. And despite when he first started 16 talking to you, Mr, Kough started talking to you, asking you 17 about these people aS8aulting him, you said, I don't want to 18 talk about that right now, all I want to talk about is the 19 accident? 20 THE COURT: Well, the officer didn't quite 21 say it that way, 22 BY MR. LAUER: 23 Q That was basically the gist of what happened, 24 isn't that true? You said I don't want to talk about the 25 assault right now, I want to talk about the accident, right? 16 1 A At that point the accident was my primary 2 investigation, yes. 3 Q From what you observed, I mean you 4 investigated assaults, from what you observed, he basically 5 sustained an aggravated assault, wouldn't you agree with me? 6 Eight to ten people kicking someone in the head? 7 A I can' t agree or I can' t disagree, I can 8 tell you what our department policy is on how we grade the 9 different assaults. 10 Q Okay. 11 MR, KABUSK: Your Honor, I object to that 12 question. 13 THE COURT: Well, I think that depends on the 14 severity of the injury, Mr. Lauer, and that would require 15 medical testimony, 16 BY MR. LAUER: 17 Q You never observed Mr. Kough drive a vehicle, 18 agree? 19 A That is correct. 20 Q And Mr. Kough never specifically said I was 21 driving the vehicle at that time, agree? 22 23 24 time? 25 A Q Disagree, He said I W"S driving the vehicle at that A Yes, he said it in the ambulance, 17 1 Q 2 A 3 4 Honor. 5 6 7 8 9 10 11 testimony? 12 13 Your Honor. r', Who was present when he made that statement? Two paramedics. MR. LAUER: I have no further questions, Your THE COURT: Anything else? MR. KABUSK: Nothing further, Your Honor. THE COURT: You may step down, sir, THE WITNESS: Thank you, Your Honor. MR. KABUSK: The Commonwealth rests, THE COURT: They have rested, Ml'. Lauer. Any MR. LAUER: I would like to call my client, Whereupon, 14 15 16 17 18 BY MR. LAUER: 19 Q Mr. Kough, would you state your name, and 20 spell your last name? DUANE E, KOUGH having been duly sworn, testified as follows: DIRECT EXAMINATION 21 A Duane E, Kough, K-o-u-g-h. 22 Q Mr. Kough, where do you live? 23 A 235 Steelstown Road, Newville, Pa. 24 Q You heard the officer testify regarding the 25 accident on August 14 of '97, correct? 18 ~ 1 A Yes, 2 Q Tell the Judqe what happsned after this 3 automobile accident occurred? After it happened? Yes, I have no idea, Okay, Do you recall being in a hospital? I recall waking ~p in the hospital, that is know I had a lot of bruises, cuts and stuff, 4 A 5 Q 6 A 7 Q 8 A 9 all I know. I 10 That is 11 Q Did you sustain any head injuries when you 12 were in the hospital? 13 A Yeah, 14 Q Do you know what -- can you tell the Judge 15 what injuries you sustained? 16 HR, KABUSK: Objection, Your Honor. He is 17 not a doctor. 18 THE COURT: He can tell us how he felt. But 19 what he sustained would require medical testimony, Mr, 20 Lauer, 21 BY MR. LAUER: 22 Q Did you receive any cuts underneath your 23 eyes? 24 A I had a black eye, My nose was all swelled 25 up, My lips were swelled up, A couple of my teeth were 19 <- 1 loose. I had lumps allover the back of my head. My 2 cheekbone was all swelled up, My neck was real sore, I 3 mean I had like a stiff neck, could barely turn my head or 4 anything. The lumps on my head, I had lumps on the back of 5 my head for about four, five days after that, after I woke 6 up. 7 Q 8 A 9 Q 10 A 11 Q 12 A 13 Q 14 A 15 about 9:30, 16 Q How did you feel when you were in the 17 hospital, physically, after just being assaulted by eight to 18 ten men where you were kicked in the head? I am talking 19 right after, when this police officer is there, how did you 20 feel? What hospital were you in? Harrisburg, What section of the hospital were you in? ICU, Intensive care unit? Yeah, How long were you in intensive care? Until -- that was I think Friday morning, 21 A I have no idea, I don't, I don't recall. I 22 don't know, I don't remember any of it, 23 Q You don't remember any of that? 24 A The first time I saw this gentleman was down 25 at Dauphin County at the District Justice's. 20 ~, .- 1 Q Did you ever have any problem with your 2 memory prior to being assaulted that night? 3 A No, 4 Q The officer testifie~ that you were being 5 kicked in the head area. Do you even remember being kicked 6 in the head? 7 A No. 8 Q Do you even remember refusing this officer's 9 request to take any test? 10 A No. 11 Q If you would not have been kicked in the head 12 repeatedly by eight to ten men and the officer asked you to 13 take a blood test -- 14 MR, I<ABUSK: Objection, Your Honor. 15 BY HR. LAUER: 16 Q -- would you have done that? 17 THE COURT: What? 18 MR. I<ABUSK: Objection, Your Honor, on the 19 hypothetical question. It is irrelevant. 20 THE COURT: Irrelevant, Mr. Lauer. 21 MR. LAUER: Okay. 22 BY HR. LAUER: 23 Q Did you do anything to these eight to ten 24 people which -- assault them or anything like that, whioh 25 led to them assaulting you? 21 ....., ,...... 1 A I don't know. 2 Q No recollection? 3 A No, 4 MR, LAUER: No further questions. 5 CROSS-EXAMINATION 6 BY MR. KABUSK: 7 Q Mr. Kough, prior to the accident on 8/14/97, 8 were you drinking? 9 MR, LAUER: Objection, It is beyond the 10 scope of direct. 11 THE COURT: Well, has he had his day in court 12 on this in Harrisburg yet? 13 MR, LAUER: No, sir. 14 THE COURT: All right, I am not going to 15 force him to answer any of this, 16 MR, KABUSK: No further questions, 17 THE COURT: step down. Anything else, Hr, 18 Lauer? 19 MR. LAUER: No, sir, 20 THE COURT: Any rebuttal? 21 MR. KABUSK: No, Your Honor. 22 THE COURT: While we are still on the record, 23 Mr, Lauer, please concisely state your issues. 24 MR. LAUER: The issue in this case, Your 25 Honor, is a person must willfully -- 22 r..., 1 THE COURT: Please, concisely state your -- 2 HR. LAUER: Yes, the issue is did Mr, Kough 3 willfully refuse to submit to a request to submit to a bloQd 4 test when, in tact, he was questioned about giving the blood 5 test 6 THE COURT: That is not concise, Do you have 7 any other issues? 8 MR, LAUER: The issue is did he willfully 9 submit to a test. 10 THE COURT: You told me that one, Do you 11 have any other isaues? 12 HR. LAUER: No, 13 THE COURT: One issue, 14 MR. LAUER: That is it, 15 THE COURT: Thank you, sir. Now we will go 16 off the record for the argument, 17 (Argument off the record,) 18 THE COURT: We will go back on the record as 19 Mr. Lauer has a new issue or issues he wants to raise. 20 Conciaely state it, sir, 21 MR, LAUER: The other issue is did the 22 officer have a reasonable basis to believe that my client 23 was under the influence of alcohol 24 THE COURT: Are you saying probable cause to 25 arrest? 23 1 2 3 4 5 argument, 6 7 8 ~, / MR, LAUER: THE COURT: MR, LAUER: THE COURT: Yes, sir, Do you have anything else? No, sir, Back off the record for the (Argument continued off the record,) (Whereupon, the following Order was entered,) AND NOW, December 5, 1997, 11:20 a,m" after 9 hearing and consideration of the testimony presented, the 10 defendant's appeal is dismissed, 11 We do find that the officer had probable 12 cause to arrest the defendant and request the test, We find 13 that the officer prop~rly advised the defendant regarding 14 the alcohol test warnings, and we find that the defendant 15 clearly and consciously refused to submit to any test. 16 By the court, 17 Isl G90rae E. Hoffer. J, 18 THE COURT: Anything else? 19 MR. KABUSK: Nothing further, Your Honor. 20 THE COURT: Anything else, Mr. Lauer? 21 MR. LAUER: No, sir. 22 THE COURT: Did I rule on all your issues? 23 MR. LAUER: Yes, sir. 24 (Whereupon, the proceeding was 25 concluded at 11:20 a.m.) 24 ,I '" hI 1: , , tr. C'J 'j. I,V~ " .~ t::~ '0'; I.,. .. ,~ 'I: ~') f" i a." i':.,), .'.. t. ~.1.. '., , , c:> " , , )!,: 'j' ('oJ . 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