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HomeMy WebLinkAbout01-03756 "'-"J',~;!Wr~' ~ ,J ,r. i ~ I H r; ai' ~o 1': ~ ,; 1, ~ ~. ~. 1! ; {~ ~ 'if li l~ , < . CHRISTOPHER Q. BROCIOUS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 61-3 7 5~ Ct I/ll COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee Appeal of Operators License Suspension - Chemical Test Refusal II II ~: (1 I' f ~~ 'k -'~ ", J; ~'i f. 'ti 'r: .,>; ORDER OF COURT AND NOW this Otlld. day of cr.Pf 2001, upon consideration of the wi thin APPEAL OF OPERATORS LICENSE (,-, i.~ SUSPENSION, it is hereby ordered that a hearing shall be held regarding this matter at on the ,;z~~ day of 2001 at q:ro a.m./p.dI. in Courtroom No. y of the ~': Cumberland County Courthouse, Carlisle, Pennsylvania. A supersedeas is granted pursuant to Vehicle Code Section ,iJ 'i"- , l; j~ ~. i;' " j' 1, ~,,: 1550(b) (1) until such time that this honorable court resolves this appeal. BY THE COURT: ,. -If/L x. " " '-I', t , .Ii ,1:' , :.- ::. '. 1: -i, I ,~ ;f ~,: Distribution: -PA Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104 -Patrick F. Lauer, Jr., Esq., 2108 Market St., Camp Hill, Pa , 17011 -;:; .! , J i 'i; , Ii ,..~>- ,- -,_ --,'N""," . -,~,. -'," -E ,,""" '"," , . " '''~" '~ 00 _c." , ",-. "..,,,,-, ~--<"'-"'''<' -,_~_-~C"_" ~_~,.-, -.~ ~. ~~- ~~~- "'.'~< '.:'\ -,' \j\ "'\ ,.. ..:u-. .0 \\;-, (\< t",~ d' .)"" 0' \\ ~, "._';_ ')~i~ri-rr~ 1,_.'-\...)\'/;'-'_'-- '\ \'-',/1 \! I~"t,h!\ ?t.\',\ \~\) i \..,.'i' .- 'I.. , ( , I' , ,>! -'I __'@Il_~;~~Rl~,,&~;\l'(;-i!<?\f<#l'%f~~,?,JI;I,,,~~~;Iff'fJlli2f'-'.,*l"'w}.~?n,~j',--" "J"".,"_,,.,:,,, '" '''h'',,,,-"r','YF4-;~f,"~~''':'j-i,01'C'_~';!,,,~,,t''' ;f' ii 'ill' ~ , >.;:, " \; " ~ ~, " 1 ~ .f .~ 't, ~~ I' 4:; " ;~: H i .~ ,~;' , . ~l ,~j u ,1 'i .'~ ., f ",' ,if ,.; Ii '. , , ! 11 '1" i , "!: j ~ ;L ok"~ 'i' , ~"~";r:": , CHRISTOPHER Q. BROCIOUS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 I- .3 '7 5?, c.u;y -r.L&w- v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee Appeal of Operators License Suspension - Chemical Test Refusal APPEAL OF LICENSE SUSPENSION AND NOW comes the Appellant, Christopher Q. Brocious, by and through his attorneys, the Law Offices of Patrick F. Lauer, Jr., and respectfully avers the following: 1. Appellant resides at 1148 Highland Drive, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. The Appellant received a notice dated May 24, 2001 that, as a result of his conviction of violating Section 3731 of the Vehicle Code, Driving under influence, his driving privilege was being suspended for a period of one year, effective suspension date June 28, 2001, at 12:01 a.m. A true and correct copy of the Notice is attached as Exhibit "A". 3. The Appellant submits that on April 23, 2001, he filed a timely motion for Acquital and/or Arrest Judgment, with the Court of Common Pleas Cumberland County. A true and correct copy of the Motion is attached as Exhibit ~B". 4. The motion is currently being considered by the Honorable Kevin A. Hess. 5. If the decision is adverse to the Appellant, an appeal will il " /" ~, ft' N ~ ')4 ~ ~ ,i';' 1, I I: !! ii' !,;j ,~, ,t f tt'. ~j; h 1::' , K j, j., W " l ,'I ,;1 h t\ J ~, <> ;, f~ 1:;: (; ,: ~'! , ".',i ! , .. :-"-"e,'",_ C",,w,, be filed with the Superior Court. WHEREFORE, your Appellant respectfully requests your Honorable Court to schedule an evidentiary hearing on the matter. Respectfully submitted, Date: &!/fj/Il( I ' ~ ~ ~ Patrick F. Lauer, Jr., Es i e 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 Ii , :* ~... I , I ; , , ~ ~ ~ ~ i .~ I'~. ~. .~ 'I ! I '. " ';~: ~ {lj " 'i~ ,m :r i! .iJi jl ~ ~~, .~ :'1 ~j Ir {i ~ .'i; '..(f: ,,; .1 ji 11 '~JJ :i r; ~. ~~! ~ ,1 tr: ;~i r :I Ii j1 .;1 1 ;~ 1J,i' , ! j j ~ ~, c:, . , -:@i"~~~-, CHRISTOPHER Q. BROCIOUS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee Appeal of Operators License Suspension - Chemical Test Refusal CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Appeal upon opposing counsel by depositing a copy of the same in the United States Mail, Camp Hill, Pennsylvania, through first class mail, certified, return receipt requested, postage paid and addressed as follows: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104 Respectfully submitted, Date: &/11/0/ ~ Patrick F. Lauer, Jr., Esqu re 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 ~0 [ j !, ~. I f Ii. I f'f ! ~ :1 ! l .rt f!, ~~ ~ fj m ~. ~ f<! ,,~ ,': ~:; 1'.]. ~r " CHRISTOPHER Q. BROCIOUS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee Appeal of Operators License Suspension - Chemical Test Refusal ATTORNEY VERIFICATION I, Patrick F. Lauer, Jr., Esquire, undersigned counsel for Appellant, Christopher Q. Brocious, hereby verifies and states that: Ii' n 11 ., " ;! F .~ 1. I am the attorney for Appellant, Christopher Q. Brocious; 2. I am authorized to make this verification on my client's ); 'ii ') J: '~~ Jy ~, !. I , " behalf; 3. The facts set forth in the foregoing Appeal are known to me and not necessarily to my client; 4. The facts set forth in the foregoing Appeal are true and correct to the best of my knowledge, information and belief; i' i; and 5. I am aware that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. ~:" F Respectfully submitted, ,,'. f 1 Date: t/lf/ClI . I Patrick F. Lauer, ire 2108 Market Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 i f' <~ \i Ii '. ,., -.- I',~'.'" "'-'" ,,:,,', ,; ,'-'.;,",,--, .:_~, . ",J - ",j:".- !)<jfj~.,;;,w., " COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION Bureau of Driver Licensing Mail Date: MAV 24, 2001 "''''''r'''O_''''"J''-' , J~,", CHRISTOPHER Q BROCIOUS 1148 HIGHLAND DR MECHANICSBURG PA 17055 WID I 011376114247231 001 PROCESSING DATE 05/17/2001 DRIVER LICENSE' 23893491 DATE OF BIRTH 02/27/1975 Dear HR. BROCIOUS, This is an Official Notice of the Suspension of your Driving Privilege as authorized by Section 1532B of the PennsYlvania Vehicle Code. As a result of your 03/09/2001 conviction of violatin.g Section 3731 of the Vehicle Code DRIVING UNDER INFLUENCE on 04/26/2000: As a result of your conviction for driving under the influ- ence, YOU are required by law to have all vehicleCs) owned by YOU equipped wit~an approved ignition interlock system before your driving privilege can be restored. If YOU fail to complY with this requirement, your driving privilege will remain suspended for an additional year. You will receive more information regarding this requirement approximatelY 30 days before your eligibilty date. · Your driving privilege is SUSPENDE~ for a period of I YEARCS) effective 06/28/2001 at 12:01 a.m. *********************************************************** WARNING: If YOU are convicted for driving while your license is suspended, the penalties will be, a MINIMUM of 90 days imprisonment AND a 1,000 fine AND your license will be suspended for 1 year. *********************************************************** Before PennDOT can restore your driving privilege, you must follow the instructions in this letter for COMPLYING WITH THIS SUSPENSION, PAYING THE RESTORATION FEE and PROVIDING PROOF OF INSURANCE. You should follow ALL instructions very carefUllY. Even if you have served all the time on the suspension/revocation, we cannot restore your driving priv- ilege until all the requirements are satisfied. " ,. . J ., ,L ~-'_- l:~ ~._ - '0 _ ,,_ ;.__<_ ,_ ~,j " , <o.",_~" .~~ J..l '''~i: 011376114247231 the Vehicle Code, YOU will not receive credit for this suspension/revocation or any additional suspension/revocation until yOU complete your prison term and yOU have complied with the requirements listed in this letter. The Court must certify your completion to PennDOT. You may wish to contact your probation officer and/or the Court after you~ release to make sure that PennDOT is prop- erlY notified. PAYING THE RESTORATION FEE You must pay a restoration fee to PennDOT' to be restored from a suspension/revocation of your driving privilege. To pay your restoration fee, complete the following steps: 1. Return the enclosed Application for Restoration. The amount due is listed on the application. 2. Write .your driver's license number (listed on the first page) on the check or money order to ensure proper credit. 3. Follow the payment and mailing instructions on the back of the application. PROVIDING PROOF OF INSURANCE Within t~e last 30 days of your suspension, we will send YOU a letter asking that YOU provide proof of insurance at that time. This letter will list acceptable documents and what will be needed if YOU do not own a vehicle registered in PennsYlvania. Important: Please make sure that PennDOT is notified if YOU move from your current address. You may notify PennDOT of your address change by calling any of the phone numbers listed at the end of this letter. APPEAL You have the right to appeal this action to the Court of Common Pleas (CiviLl Division) within 30 days of the mail date, MAY 24, 2001, of this letter. I~ you ~1le an appeal in the county Court. the Court will give you a time-stamped cert1~1ed COpy of the appeal. In order for your appeal to be valid, YOU must send this time-stamped certified COpy of the appeal by certified mail to: Pennsylvania Department of Transportation Office of Chief Counsel Third Floor, Riverfront Office Center Harrisburg, PA 17104-2516 , < .".1 . "'<..' ,~ . J..',j.,,-i:;', '_.----.>'-,- >,'j 011376114247231 Remember I this is an OFFICIAL NOTICE OF SUSPENSION. You must return all current PennsYlvania driver license products to PennDOT by 06/28/2001. Sincerely, ~~.~ Reb.ecca l. Bickley, Director Bureau of Driver licensing INFORMATION 7:00 a.m. to 9:00 p.m. IN STATE 1-800-932-4600 TDD IN STATE 1-800-228-0676 OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE 717-391-6191 WEB SITE ADDRESS www.dot.state.pa.us . ':t._ ~;. ~ , ",~ ~ "" ,~, ~ , ..,.,.) ,_,_" _ > ,,,",,,L>oo '. <: ".','-- - ~--,'",-~" <"""~,;o" '. , 011376114247231 COMPLYING WITH THIS SUSPENSION You must return all current PennsYlvania driver's licenses, learner's permits, temporary driver's licenses (camera cards) in your possession on or before 06/28/2001. You may surrender these items before, 06/28/2001, for earlier credit; however, YOU may not drive after these items are s,urrendered. YOU MAY NOT RETAIN YOUR DRIVER'S LICENSE FOR IDENTIFICATION PURPOSES. However, yoU may apply for and obtain a photo identification card at any Driver License Center for a c~st of 9.00. You must present two (2) forms of proper iden- tification (e.g., birth certificate, valid U.S. passport, marriage certificate, etc.) in order to obtain your photo identification card. You will not receive credit toward serving any suspension until we receive your license(s). Complete the following steps to acknowledge this suspension. 1. Return all current Pennsylvania driver's licenses, learner's permi ts and/or camera cards to PennDOT. If YOU do not have any of these items, send a sworn nota- rized letter stating you are aware of the suspension of your driving privilege. You must specifY in your letter whY ~YOU are unable to return your dri ver' s license. Remember: You may not retain your driver's licen~e for identification purposes. Please send these items to: Pennsylvania Department of Transportation Bureau of Driver Licensing P.O. Box 68693 Harrisburg, PA 17106-8693 2. Upon receipt, review and acceptance of your PennsYlvania driver's licensl!'(s),-narlier's permit(s), and/or a sworn notarized letter, PennDOT will send YOU a receipt con- firming the date that credit began. If YOU do not re- ceive a receipt from us within 3 weeks, please contact our office. Otherwise, YOU will nnt be given credit toward serving this suspension. PennDOT phone numbers are listed at the end of this letter. 3. If YOU do not return all current driver license pro- ducts, we must refer this matter to the PennsYlvania State Police for prosecution under SECTION 1571 (a) (4) of. the Pennsylvania Vehicle Code. Additionally, the Court of CUMBERLAND CTY, Court Number 01651, Court Term 2000 has sentenced YOU to serve a prison term for this violation. Pursuant to Section 1541(a.l) of - " ~, , -,-~ -. ---,; o~... _,J,,, ;. ~,,\~". ,~. ,- .",._' . _.:,' L.: .,' ..' -", , i-,;~",--,2~;'--~-' , <""{lUx,:;;:,_ \. ~ I l I /:. ,i_.'. ...'...~ . --~---- C C . III " l'" III C II'l III C ::;) C III C l'" l'" ... "" C U C C < C ClCCIClL "" Cl)C "" III lr" OC~ J l'" :r Zo: l'" ,., CIC'<::;) ru lr" W~Cl) ru 1tI, % II'l C ",- lL~U "" ru '0......... lr" Z :r .,.%Z :r 0 II'l < ", ~ ...1lCl% 'lr" .< ClI::rU ItI 0 lI:"",,W = . fI'I w. U"",,lI: Q ~ ,ru ....~~ z,.. ::IW~ OZ' C :Eoflj " 0 9 <Ire O. en :II: ~. 0 i 0:: :x: c I- w w I/J ~ - 0 >O~ <( :;~~ 0 Q Z UJ I/J I I b I I I I Z I 0 Q jJ<if'~ ., -<'>Ii 1,--' , , J I f 1 ! I 1 M i 1 ! , , , !M ..j .j ! ,) j :~ , i j A lJ 'il i ~-) t-, r,; . ., ) i l .~ " ii . ,l. ';_';1-_ . "j,;: . . ,,-~-h.,..';-,_ ,-.--L..,",~:~ . ' . COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. 00-1651 v. CHRISTOPHER QUAY BROCIOUS AND NOW, this ~ day of : CHARGES: 3731 (A)(I) (A)(4) ORnER OF ("OTTRT . 2001, it is hereby ordered that a an oral argument of I day of . 2001, at _,m" at th~ I the above-captioned matter shall be held on the ;, ' Cumberland County Courthouse, Carlisle, Pennsylvania. I I I 'i BY THE COURT, T, , 'f. I j I J ~ 1 '! < j ! j ,\ , ) \ , , .J ~~ ii' ~~ ..-,1 ;-", 'J ,~,I,,, ,"._"" -. .,,; >",,~_,-- -r' ",,,.,;-,_,,,,,. , COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. CHRISTOPHER QUAY BROCIOUS AND NOW, this ---, day of that : NO. 00-1651 . : CHARGES: 3731 (A)(I) (A)(4) ORnER 01<' rOTTRT . 200 1, it is hereby ordered ~, BY THE COURT, J, ~ - ,- .Jj ;.-c. ^-'-~ -- ,-,--- -", ,1;-: ", ',.," ,-, - ~',' ,""O_"'+__,':"",-,:l'-O' ~,"~\-'-' ) ~ COMMONWEALm OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-1651 CHRISTOPHER QUAY BROCIOUS : CHARGES: 3731 (A)(1) and (A)(4) DEFENDANT'S POST SENTENCE MOTION FOR :PET .IEF MOTION FORM"QJTIT 4. T. 4. NTl/OR 4. RRE~T .rrmGMENT PA. Rules Criminal Procedure 1410(B){1) AND NOW, comes the Defendant; Christopher Q, Brocious, by and through his attorneys, The Law Offices of Patrick F, Lauer, Jr" who respectfully avers the following: 1. The Defendant was convicted of3731 (A)(l)on March 9, 2001,; at a jury~trial6efore . . '-., w the Honorable Kevin A. Hess. '_-J 2, '. ,:~ -' ,--,OJ The Defendant stopped his vehicle and put it in park at the entfat1<;e to a::tt>llboo1!( on ;-"1 . Ul the P A Turnpike, A bottle of Captain Morgan was lying next to the Defendant and he was suffering some type of seizure; there was no evidence the Defendant drank from the open bottle of Captain Mprgan. The bottle was not introduced as evidence. 3, Trooper Sarra, the arresting officer, testified at the preliminary hearing that he did not' get "face to fuce" with the defendant any time that night and he was down by the Defendant's hips while the Defendant was in the ambulance, (Page 32 lines 1 0-15 of the PreIiminary Hearing Transcript; See Exhibit "A"), Probable cause exists where the facts and circumstances within the officers' knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being - . ~- -- -- " -~'- ,',,1 '" I, ",~ ~_ '__.. _0" ..c;J- ;:'i'-~_""' ,,-. - ~,c," " ,'_,-,- L'- -.,,,,~.- ! 1 ~ ,; j , 'I , , i j committed. RP.I'gp.r v N"", Vnrl<,388 U,S, 41, 87S.Ct. 1873, 18L.Ed,2d 1040 (1%7). Arguably, mere j suspicion that a person may have been driving drunk is not sufficient, ~ , 4, Under Pennsylvania case law there must be other corroborative f3cts that would give rise to probable cause that the Defendant was driving under the influence of alcohol than a mere odor '\ I )1 j " ~~ ,I l j of alcohol. C'nmmnm>Tp"lth v Rno", 34 D&C 3(b) 16 (1985), Courts have interpreted this to include: a motorist's erratic and unsteady driving, strong ~ emanations of alcohol from motorist's car and person, failing all or most of sobriety tests, red, . .~ " " 1 ) , 1 1 '1 .' ~ :' glassy and/or bloodshot eyes, staggering when walking, unsteady walking and refusing sobriety ~ " tests. Mnnnp.y v C'nmmnnwp.~lth,654 A.2d 47(pa.Commw.1994); Cnmmnnwp.~lth v RAnonn,280 h~~~ I 5. Trooper Sarra testified at the Preliminary hearing the Defendant's speech was clear I and that he agreed with another officer's testimony at the preliminary hearing that the Defendant's speech was clear, (page 32, lines 22-25 and page 33 lines 1 & 2, preliminary hearing transcript) A 'j . l , 'j I , , Exhibit "fIl', 6. Trooper Sarra testified at the preliminary hearing he did see the Defendant suffering ~ from some type of convulsions, (page 33, lines 9-11 preliminary hearing transcript) Exhibit "fIl', 7, Trooper Sarra testified at the preliminary hearing that he could not say that the Defendant's eyes were glassy or not. (page 33, lines 22-24 preliminary hearing transcript) Exhibit" N', 8. Trooper Sarra testified at the preliminary that he could not say that the Defendant's eyes were bloodshot. (page 33, lines 24-25, Page 34, Line 1 preliminary hearing transcript) Exhibit "An, ~: > J 1 j 1 'j I i j J I .' , Ii , ~") J i 1 ,I ! ~ \; u "<;. i " .' " , :j , J 1 1 I I j I , , i 1 .cc , - '. ,,-, ~. -, ~,., -,. " ~J "'-'lc~, ,-:--~-- . -,-,+ ,- ,-,;." ""'___'__"""0_"';':"'-- ..',_! .,_.,- , . 9, Trooper Sarra testified at the preliminary hearing that based upon his training, education and experience that the smell of alcohol alone would not necessarily mean that the Defendant was impaired to the point that he could not drive, (page 34, Lines 21-25) Exhibit "N', 10, Trooper Sarra testified at the preIiminaty hearing under oath that he awId DOt give an opinion based upon what he observed that the Defendant was impaired from alcoho~ to the point he could not drive. (page 35, lines 18-25) Exhibit "N', 11. Trooper Sarra, the arresting officer, contradicted himself at trial from his testimony at the preliminary hearing in that at trial Trooper Sarra testified that in his opinion, the Defendant was under the influence of alcohol to the degree that rendered him incapable of safe driving, 12. Officer Glen Th9mpson who had 18 years of experience, testified at the preliminary hearing and at trial that based upon his training, education and experience he could not give an opinion that the Defendant was under the influence of alcohol to a degree that would render him incapable of safe driving, Officer Thompson observed the Defendant suffering from convulsions and observed the Defendant for 20 minutes. 13, Trooper Anthony Morrow testified at trial that he could not give an opinion that the , I Defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving, 14, The Defendant was suffering from some type convulsions when EMT arrived and the arresting officers never observed driving and the Defendant was inside the ambulance at the time he i I was observed by the Troopers, 15, The Defendant submits that the jury's verdict shocks one's conscience in that there was no evidence of unsafe driving, and there was no opinion testimony that the Defendant was under 1 \ l 1 , . I i I, i 'I t i ; , 1 j _I, ~ -, '-"-,-,,,,-- -1.-, __'-,;": --~ "" Ii5Jl1.L-'-""~~~:1 , I I \ I I , I I I I I I I I I I i I I I ~ 'I " j I I I " , -~_ --. - C'," ,'",,1.-.. -",c;'-'___<"" . , the influence of alcohol to render him incapable of safe driving at the time he was in actual control of the vehicle. 16, A medical doctor who treated the Defendant about two (2) hours after the Defendant was removed from the vehicle did DOl: give an opinion within a medical degree of certainty that the Defendant was under the influence of alcohol to a degree he could not drive his vehicle safely at the time the Defendant was in the vehicle. 17. I In the case at bar, there were no corroborative facts given by the officers to prove i beyond W reasonable doubt the Defendant was under the influence of alcohol to such a degree that rendered him incapable of safe driving, 18, The witnesses ~e cross-examined at trial on their inconsistent statements given at the preliminary hearing and the preliminary hearing transcript was used to impeach said witnesses, These statements are part of the trial record, 19, Defendant submits that his arrest violated his Pennsylvania and United States Constitutional rights, in that the officer 1acked the necessary probable cause to arrest him, briefs can be completed, WHEREFORE, the Defendant requests Your Honorable Court to grant him a new trial or an arrest of judgment based upon the facts that there was insufficient evidence as a matter of law to I , ! convict him of373 1 (A)(l), MOTION FOR NEW TRIAL OR AN ARREST OF JUDGMENT THE VERDTCT WAS A(;A. TNST 1'"RE WETt::.RT OR THE EVIDENCF, ! - ! I 1 i .i ,~ 1 ! 1 :1, i ; ., \ , , ; Ii " I ~ , .", , , I, D " :1 " , " ,= '" - .' ..t " '-:_ -, 'r-.-,=,~~!,_.i' I.- -~_ '_"_,..j,,,-,,'u,'fr."" -;-,,:--, ' -, -, " 21. Paragraphs 1 through 20 are incorporated herein by reference, 22. The Defendant submits that all the evidence, in viewing them in the manner most favorable to the Commonwealth, the verdict was against the weight of the evidence pursuant to PaCrimR 1124A. 23. The Commonwealth called a medical doctor who treated the Defendant an hour and a half after he was in the vehicle and when this doctor saw the Defendant his convulsions had stopped, 24. This medical doctor did JWt give an opinion within a degree of medical certainty that , the Defendant was under the influence of alcohol to a degree that rendered him incapable of safe I , I driving at the time of the incident, 25, The medical Doctor testified that he had run some preliminary tests and his preliminary _ findings were that the Defendant's altered mental state could possibly have been from alcohol. The i Doctor also testified that after running initial tests it was his opinion the alcohol affected his mental state when he examined him. The Doctor gave no opinion to the Defendant's fitness to drive at the time of the incident, 26, The medical doctor testified at trial that the only way to determine whether or not the convulsions the Defendant suffered were an underlying medical problem would be to conduct some brain wave studies, No brain waive studies were ordered, 27. The doctor admitted under cross-examination that without any brain wave studies, his opinion that the Defendant's altered state was caused by alcohol could be completely wrong, 28, The Doctor did not testilY to detecting the odor of alcohol, blood shot eyes, slurred ' speech, lack of balance any other obseJVati.ons at the time he examined the Defendant. ,i 1\ j , j 1 t, 1 ":j ':j i , , , i , , 91 j , A I ,j 1 , . ~ A j 1 I "1\ 'J ,I ;1 ~ ~~ " , '~"," _, J '.' ',~' ~-,,~ -,-~ 1..,.- "~Ii'~i~: ,-." ~, " . " 29. The Defendant submits that the jUl)" s verdict was based upon speculation and conjecture, 30, There was no substantive evidence to establish the Defendant was impaired from alcohol to the point he could not drive or was suffering some medical complications that caused the Defendant to suffer "seizure" like actions, WHEREFORE, the Defendant requests Your Honorable Court arrest judgment, grant the I I I I , I j I I I I , Defendant a new trial or acquit the Defendant, MOTION FOR NEW TRIAL IN~TmFT("'TENT .Rmv IN~TRTT("TIONS 31. Paragraphs- 1 through 30 are incorporated herein by reference. 33, Defense Counsel then requested the Court to instruct the jwy if an individual gave fiIIse testimony about an important fuct the jUl)' could disregard their entire testimony, 34. The Court refused to give said instructions because 'Counsel requested them after the I initial instructions were given, 35. The Defendant was prejudiced by the failure of the Court to provide the additional instructions, 36, Trooper Sarra testified under oath at the preliminary hearing that he could not give an opinion on the kfJ issue of impllirm..nt yet at trial he did so. The Defendant submits said jUl)' instruction was fundamentally to this case, I I! J~' I I l j , i , i 1 !! ~ j , I l~ j 1 1 j j " , < J , 'j j I \~j , , i i ~ J J J ~ - ~--, ,-.c,'c.:_ ":".-,.-.--- '~~ -~ .~ -oJ ~, ; ~L _~ . . " 37. According to Pennsylvania Criminal Rule 1l19(c) after a jury has retired.., additional or correctional instructions may be given by the trial judge, 38. In the case at bar the trial judge refused to give correctional instructions which prejudiced Defendant and therefore was harmful to the Defendant. WHEREFORE, the Defendant requests the Court grant him a new trial, Respectfully submitted, Date: 4 -/1- 2 00 I P 'ckF. Lauer, Jr., uire 08 MaIket Street, Aztec Building Camp Hill, Pennsylvania 17011-4706 10#46430 Tel. (717) 763-1800 < J! I ! - ".A~)~' " ;,..- -.~- .,", ,_'c'. " ^_ - ,.1 ' . ';c," ,. _..'.~ ."'/. '.fr-' 1 -'-'01; 1 . '. . '. COMMONWEALTII OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 00-1651 ;1 1 ~ h 'I 'I ':;' 1 I . , ., ~ ;~ CHRISTOPHER QUAY BROCIOUS : CHARGES: 3731 (A)(I) and (A)(4) rERTTFJC'ATE OR ~ERVJC'E I hereby certifY that I am this day serving a copy of the foregoing DEFENDANT'S POST SENTENCE MOTION FOR RELIEFfMOTION FOR ACQUITAL AND/OR ARRESTED JUDGMENT upon the person, and in the manner, indicated below, which service satisfies the , . requirements of the Pennsylvania Rules of Criminal Procedure, by depositing a copy of the same '. :> ' with the United States Post Office at Camp Hill, Pennsylvania, through first class mail, prepaid ,j ii ~ ., , i I j , J ~ I ~ and addressed as follows: Office of the District Attorney Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Pa c , er, Ir" Esquire 210 Market Street, Aztec Bldg. Camp Hill, Pennsylvania 17011 ID# 46430 Telephone (717) 763-1800 Date: 4 -/1-200/ i:it~~M-~~""_"J;&~"i!i!t1l:l~i'!!&Hi'lW.~i;<-~~~;M"""'~"--,'ili>~"'/~,~'''-~~W*&'~1W-''''''~''~-'''''';''''''Jli1ll!it~~~'.- "''';ll''''""''~'~ , , ' . J':Jy ~ ~- ~ Yl 2;1 ....n iJl U\ -g -i ~ F 5 Gel ~ ~ = "~~~~~- ~" ~ '" ,,-~ ,-~ I I . (', c.: ~g~ tss: -< '<: ~~! L; . -'- @ {.--;, 'i ~ t H '[ [ , ! , .1 :r i! t n' [I, 'I if ir ii 'I I !l- " ,I II I r 1"1 CD "-0 :..,) >) I_D ; :.< .., ,~ ~ ..~ ~' Ii 1e, .~ .1 '!I' ii ~, f::. t " J ~fH j ',.1 f 1 " .II: ill t'i' \T :}: ~;: 'Ie 'it ,~,~: T >~# ~: J, It: ~, l." '~): ..'l' rc. ,~I' l ~I i: J,'., ~/ ~: -~~;, J !',' '~,: .~ . t 1 ~: ~: ~: ,~ , '1 j 'f' l l ,~ i : 1 ~ tj: ~' ] , x ~ , ~ ~t j.'" i\ I i,~~" CHRISTOPHER Q. BROCIOUS, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-3756 CIVIL v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, Appellee Appeal of Operators License Suspension - Chemical Test Refusal PRAECIPE TO WITHDRAW APPEAL OF OPERATORS LICENSE SUSPENSION TO THE PROTHONOTARY: Kindly withdraw the license appeal in the above captioned case. The Parties agree that Appellant's license suspension will " , I , be effective January 1, 2002. Respectfully submitted: ., Esquire 2108 Market Stree , Aztec Building Camp Hill, Pennsylvania 17011-4706 ID# 46430 Tel. (717) 763-1800 Date: 9!;,()!{)/ I I Distribution: -PA Dept. of Transportation, Office of Chief Counsel, Third Floor, Riverfront Office Center, Harrisburg, PA 17104 -Patrick F. Lauer, Jr., Esq., 2108 Market St., Camp Hill, Pa 17011 -Christopher Brocious, 1148 Highland Drive, Mechanicsburg, PA 17055 -Judge Kevin A. 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