HomeMy WebLinkAbout02-1610PATRICK T. SULLIVAN, III,
Petitioner
Vo
COMMONWEALTH OF PA :
DEPARTMENT OF TRANSPORTATION,:
Respondent :
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
DRIVERS LICENSE APPEAL
MOTION FOR HEARING
AND NOW, this 1st day of April 2002, the Petitioner, Patrick T. Sullivan, III, by and
through his attorney, Austin F. Grogan, Esq., avers the following:
1. The Petitioner was stopped on or about February 8, 2002 and cited for refusing to
submit to a chemical test of his breath and/or blood;
2. The Department of Transportation, on or about March 5, 2002, notified the
Petitioner that his privileges would be suspended for a period of one (1) year effective April 16,
2002 for the chemical test refusal (copy of letter attached);
3. The Petitioner disputes the chemical test refusal and requests a hearing de novo in
this matter.
WHEREFORE, the Petitioner requests this Honorable Court to stay the suspension and
schedule a hearing and to grant the Petitioner's request to dismiss the license suspension.
Date
Respectfully submitted,
P~ustin F. GrogS, Esqu)a'~
24 North 32nd Street /
Camp Hill, PA 17011(..~/
(717) 737-1956
Attorney for Petitioner
I.D.//59020
COMMONNEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
MaiZ Date: MARCH 12, 2002
PATRICK T SULLIVAN III
330 S 31ST ST
CAMP HILL PA 17011
WID ~ 020646112100588 001
PROCESSING DATE 03/05/2002
DRIVER LICENSE # 19052858
DATE OF BIRTH 12/28/1960
Dear MR. SULLIVAN:
This is an O~flctal Notlce of the Suspension of your Driving
Privilege as authorized by Section 15q7 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 15q7
of the Vehicle Code, CHEMICAL TEST REFUSAL, on 02/09/2002:
· Your driving privilege is SUSPENDED for a period o~ 1
YEAR(S) effective 04/16/2002 at 12:01 a.m.
NARNING: If you are convicted of driving while your
license is suspended/revoked the penalties will be a
MINIMUM of 90 days imprisonment AND a 1,000 fine AND
your driving privilege will be suspended/revoked for
a MINIMUM 1 year period
COMPLYING NITH 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 0q/16/2002. You may
surrender these items before, Oq/l&/2002, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU MAY NOT RETAZN YOUR DRZVER~S LZCENSE FOR ZDENTZFZCATZON
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of 9.00. You must present two (2) forms of Proper
identification (e.g., birth certificate, valid U.S.
passport, marriage certificate, etc.) in order to obtain
your photo identification card.
You w111 not recelve credit toward servlng
untll we ,ecelve your license(s). Complete
steps to acknowledge this suspension.
02061&112100588
Return all current Pennsylvania driver's licenses,
learner's permits and/or camera cards to PennDOT. If
you do not have any of these items,' send a sworn
notarized 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 driver's
license. Remember= You may not retain your driver's
license for identification purposes. Please send these
items to:
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 68693
Harrisburg, PA 17106-8695
Upon receipt~ review and acceptance of your Pennsylvania
driver's licenseCs)~ learner's permit(s), and/or a sworn
notarized letter, PennDOT will send you a receipt
confirming the date that credit began. If you do not
receive a receipt from us within $ weeks, please contact
our off/ce. Otherwise, you wil! not be given credit
toward serving this suspension. PennDOT phone numbers
are listed at the end of this letter.
If you do not return all current driver license
products, we must refer this matter to the Pennsylvania
State Police for prosecution under SECTION
of the Pennsylvania Vehicle Code.
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. Nrite 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.
020646112100588
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (.Civil Division) within $0 days of the mail
date, HARCH 12, 2002, of this letter. Zf you flle an appeal
in the County Court, the Court ~111 glve you a time-stamped
certified copy o~ the appeal. In order for your appeal to
be valid, you must send th/s t/me-stamped cert/f/ed copy of
the appeaZ by cert/f/ed mail to:
Pennsylvania Department of Transportation
Office of Chief Counse!
Th/rd Floor, Riverfront Office Center
Harrlsburg, PA 1710q-2516
Remember, this /s an OFFZCZAL NOTZCE OF SUSPENSZON. You
must return all current Pennsylvan/a driver license products
to PennDOT by 0q/16/2002.
S/ncerely,
Rebecca L. Bickley, D/rector
Bureau of Dr/vet Licensing
[NFORHATION 7:00 a.m. to 9:00 p.m.
IN STATE 1-800-952-q600 TDD IN STATE
OUT-OF-STATE 717-591-6190 TDD OUT-OF-STATE
NEB SITE ADDRESS w~.dot.state.pa.us
1-800-228-0676
717-$91-6191
PATRICK T. SULLIVAN, III,
Petitioner
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
No.
COMMONWEALTH OF PA : DRIVERS LICENSE APPEAL
DEPARTMENT OF TRANSPORTATION,:
Respondent :
ORDER
AND NOW, this i~6d'' day of ~ 2002, upon consideration of the
attached Motion, a hearing is scheduled for the ~ day of f.~ 2002, in
Courtroom ~ at I.,~{m. at the Cumberland County Courthouse,0Carl0iisle, Pennsylvania.
PATRICK T. SULLIVAN, III,
Petitioner
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. ~ -- ]gl6 ~c~ '~
COMMONWEALTH OF PA : DRIVERS LICENSE APPEAL
DEPARTMENT OF TRANSPORTATION,:
Respondent :
MOTION FOR ItEARING
AND NOW, this 1st day of April 2002, the Petitioner, Patrick T. Sullivan, III, by and
through his attorney, Austin F. Grogan, Esq., avers the following:
1. The Petitioner was stopped on or about February 8, 2002 and cited for refusing to
submit to a chemical test of his breath and/or blood;
2. The Department of Transportation, on or about March 5, 2002, notified the
Petitioner that his privileges would be suspended for a period of one (1) year effective April 16,
2002 for the chemical test refusal (copy of letter attached);
3. The Petitioner disputes the chemical test refusal and requests a hearing de novo in
this matter.
WItEREFORE, the Petitioner requests this Honorable Court to stay the suspension and
schedule a hearing and to grant the Petitioner's request to dismiss the license suspension.
Respectfully submitted,
Date q~ l~' ~ °°F/ i~~&~
Austin F. GrogS, Esqu)r~ -
24 North 32nd Street / J
Camp Hill, PA 17011 {.J
(717) 737-1956
Attorney for Petitioner
I.D. #59020
COMMONNEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION
Bureau of Driver Licensing
Nail Date= MARCH 12, 2002
PATRICK T SULLIVAN III WID ~ 020646112100588 001
330 S 31ST ST PROCESSING DATE 03/05/2002
DRIVER LICENSE ~ 19052858
CAMP HILL PA 17011 DATE OF BIRTH 12/28/1960
Dear HR. SULLIVAN:
This is an O~flctal Notlce of the Suspension of your Driving
Privilege as authorized by Section 15~7 of the Pennsylvania
Vehicle Code. As a result of your violation of Section 15~7
of the Vehicle Cede, CHEMICAL TEST REFUSAL, on 02/09/2002:
Your driving privilege is SUSPENDED for a period of
YEAR(S) effective 04/16/2002 at 12:01
WARNING= If you are convicted of driving while your
license is suspendedYrevoked the penalties wi~ be a
MINIMUM of 90 days imprisonment AND a 1,000 fine AND
your driving privilege will be suspended/revoked for
a MINIMUM 1 year period
COMPLYING NITH 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 0q/16/2002. You may
surrender these items before, 0q/16/2002, for earlier
credit; however, you may not drive after these items are
surrendered.
YOU MAY NOT RETATN YOUR DRTVER'S LICENSE FOR ZDENTTFTCATZON
PURPOSES. However, you may apply for and obtain a photo
identification card at any Driver License Center for a cost
of 9.00. You must present two (2) forms of proper
identification (e.g., birth certificate, valid U.S.
passport, marriage certificate, etc.) in order to obtain
Your photo identification card.
You w111 not receive credlt to~ard servlng any
untll we recelve your license(s). Complete the f~.~-o~.~ng
to
this
0206~6112100588
1. Return all current Pennsylvania driver's licenses,
learner's permits and/or camera cards to PennDOT, If
you do not have any of these items, send a sworn
notarized letter stating you are aware of the suspension
of your driving privilege. You must spec/fY in your
letter why you are unable to return your driver's
license. Remember= You may not retain your driver's
license for identification purposes. Please send these
items to:
Pennsylvania Department of Transportation
Bureau of Driver Licensing
P.O. Box 68695
Harrisburg, PA 17106-8&95
2. Upon receipt, review and acceptance of your Pennsylvania
driver's license(s), learner's permit(s), and/or a sworn
notarized letter, PennDOT will send you a receipt
confirming the date that credit began. If you do not
receive a receipt from us within 5 weeks, please contact
our office. Otherwise, you will not be given credit
toward serving this suspension. PennDOT phone numbers
are listed at the end of this letter.
If you do not return all current driver license
products, we must refer this matter to the Pennsylvania
State Police for prosecution under SECTION 1571(a)(4)
of the Pennsylvania Vehicle Code.
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.
Follow the payment and mailing instructions on the back
of the application.
020&46112100588
APPEAL
You have the right to appeal this action to the Court of
Common Pleas (Civil Division) within $0 days of the mail
date, HARCH 12, 2002, of this letter. If you ~tl0 an appeal
in the County Court, the Court wtll glve you a time-stamped
certified oopy of the appeal. In order for your appeal to
be valid, you must send this t/me-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
Remember, this is an OFF/CZAL NOTZCE OF SUSPENS/ON. You
must return al! current Pennsylvania driver license products
to PennDOT by 04/16/2002.
Sincerely,
Rebecca L. Bickley, Director
Bureau of Driver Licensing
INFORHATION 7=00 a.m. to 9=00 p.m.
ZN STATE 1-800-952-4600 TDD IN STATE
OUT-OF-STATE 717-391-6190 TDD OUT-OF-STATE
NEB SITE ADDRESS www.dot.state.pa.us
1-800-228-0676
717-391-&191
PATRICK T. SULLIVAN, III,
Petitioner
COMMONWEALTH OF PA
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 02-1610
:
: DRIVERS LICENSE APPEAL
DEPARTMENT OF TRANSPORTATION,:
Respondent :
ORDER
AND NOW, this ~ day of May 2002, it is hereby Ordered that the Hearing
scheduled for ~,°2002 be cancelled. A new Hearing shall be scheduled for
September 23, 2002, in Courtroom 2 at ! :30PM at the Cumberland County Courthouse,
Carlisle, Pennsylvania.
ATTORNEY AT LAW
24 North 32nd Street
Camp Hill, PA 17011
Telephone (717) 737-1956
Fax (717) 761-5319
May 16, 2002
The Honorable Judge Edgar B. Bayley
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
Re:
Patrick Sullivan III
v. Commonwealth of Pennsylvania, Department of Transportation
No. 02-1610
Dear Judge Bayley:
This is a follow up to Attorney Kabusk's phone conference on May 15, 2002
when he advised our office that the officer is not available for the newly rescheduled
Hearing as outlined in my May 15, 2002 letter. Upon request of the officer and
Attorney Kabusk we respectfully request that the Hearing in the above matter be set for
September 23, 2002 at I:30PM. Assuming this request is agreeable I have enclosed an
Order for your signature.
If you have any questions, please contact me at your convenience.
Respectfully, ~
AFG/rr
Enclosures
Cc: Patrick Sullivan
George Kabusk, PennDot Office of Chief Counsel
PATRICK T. SULLIVAN, III,
APPELLANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
APPELLEE
· 02-1610 CIVIL TERM
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGF
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
ORDER OF COURT
AND NOW, this _~O~"* day of September, 2002, the within appeal from a
suspension of driving privilege, IS DISMISSED.
George Kabusk, Esquire
For the Department of Transportation
Austin Grogan, Esquire
For Appellant
:sal
PATRICK T. SULLIVAN, III,
APPELLANT
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF TRANSPORTATION, BUREAU
OF DRIVER LICENSING,
APPELLEE
IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: APPEAL FROM SUSPENSION OF DRIVING PRIVILEGF
BEFORE BAYLEY, J.
OPINION AND ORDER OF COURT
Bayley, J., September 30, 2002:-
Petitioner, Patrick T. Sullivan, III, filed this appeal from the suspension of his
driving privilege by the Department of Transportation for one year for refusing to submit
to a chemical test of his breath on February 9, 2002. A hearing was conducted on
September 23, 2002. We find the following facts.
On February 8, 2002, at 11:31 p.m., Officer Warren Cornelius, of the Camp Hill
Borough Police, received a dispatch. The dispatcher said that a woman called saying
that a driver known to her was currently driving from the Harvey Taylor Bridge (over the
Susquehanna River) to 330 South 31=t Street in Camp Hill, and that there may be an
altercation when they arrived. A short time later Officer Cornelius received another
dispatch informing him that the same woman reported that they had arrived at 330
South 31`t Street, and asked the police to respond immediately (to a domestic dispute).
02-1610 CIVIL TERM
02-1610 CIVIL TERM
Officer Cornelius arrived at the residence at 11:39 p.m.
The officer walked to the front door of the residence where he saw a birdhouse
that was knocked over. He met Tracy Carper on the front porch. Carper said that
Patrick Sullivan drives to the residence intoxicated from Harrisburg every weekend, and
she asked the officer what he was going to do about it. She stated the Sullivan was
upstairs, and that he threatened her but there was no assault. Officer Cornelius went
upstairs and located Sullivan. The officer smelled an odor of alcohol coming from
Sullivan, and saw that his eyes were bloodshot and glassy. Sullivan told the officer that
he had not been drinking. Officer Cornelius told him to go downstairs and he took him
outside. The following written statement was then obtained from Tracy Carper:
I went downtown to the Manicore Club 2nd and North St. I took Pat
out at about 11:20. He called me names and kicked me on the way out.
This occurred in Harrisburg. Followed him home at 330 S. 31st St. Camp
Hill. I observed him driving a green Suburban from the Manicore Club to
Camp Hill. He was under the influence of alcohol. VVhen we got home he
was verbally abusive. Threw mailbox poles at me told me to get the fuck
out. I called Camp Hill Police. They met me at the house.
The officer had Sullivan perform a walk-and-turn test. Sullivan could not keep
his balance and started to test too soon. During the walking stage, he missed heel-to-
toe between every step both out and back, and he raised his arms both out and back.
He made an improper turn by spinning and stumbling on the turn. He refused to take a
one-leg stand test, saying that he had not been driving. Officer Cornelius arrested
Sullivan at '11:46 p.m. for driving under the influence. The officer then went to the
vehicle that Carper told him Sullivan had been driving. He touched the hood and felt
-2-
02-1610 CIVIL TERM
that it was warm.
Officer'Cornelius took Sullivan to a booking center, arriving at 11:56 p.m. At
12:17 a.m., on February 9~, the officer gave Sullivan chemical testing warnings which
included a warning that his operating privilege would be suspended for one year if he
did not submit to a chemical test of his breath. Sullivan was then asked to submit to a
breathalYZer test. He refused.
The legality of an arrest is immaterial for purposes of a license suspension.
Commonwealth of Pennsylvania, Department of Transportation v. Wysocki, 517
Pa. 175 (1987). In order to suspend operating privileges pursuant to the Vehicle Code
at 75 Pa.C.S. § 1547, the Department must establish that the licensee (1) was arrested
for driving under the influence by a police officer who had reasonable grounds to
believe that the licensee was operating or in actual physical control of the movement of
a vehicle while under the influence of alcohol; (2) was asked to submit to a chemical
test; (3) refused to do so; and (4) was warned that refusal would result in the
suspension of driving privilege. Banner v. Commonwealth, Department of
Transportation, 737 A.2d 1203 (Pa. 1999). In Banner, the Supreme Court of
Pennsylvania stated:
The standard of reasonable grounds to support a license suspension
does not rise to the level of probable cause required for a criminal
prosecution. Reasonable grounds exist when a person in the position
of the police officer, viewing the facts and circumstances as they
appeared at the time, could have concluded that the motorist was
operating the vehicle while under the influence of intoxicating liquor.
In determining whether an officer had reasonable grounds to believe that
-3-
02-1610 CIVIL TERM
a motorist was in "actual physical contrer' of a vehicle, the court must
consider the totality of the circumstances, including the location of the
vehicle, whether the engine was running and whether there was other
evidence indicating that the motorist had driven the vehicle at some point
prior to the arrival of the police. VVhether reasonable greunds exist is a
question of law reviewable by the court on a case by case basis.
(Emphasis added.) (Footnote omitted.) (Citations omitted.)
In DiPaolo v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, 700 A.2d 569 (Pa. Commw. 1997), the
Commonwealth Court of Pennsylvania, citing Department of Transportation, Bureau
of Traffic Safety v. Drsisbach, 26 Pa. Commw. 201 (1976), stated:
[F]or 'reasonable greunds' to exist, the police officer obviously need
not be correct in his belief that the motorist had been driving while
intoxicated. We are dealing here with the authority to request a
person to submit to a chemical test and not with the admission into
evidence of the result of such a test. The only valid inquiry on
this issue at the de novo hearing is whether, viewing the facts
and circumstances as they appeared at the time, a reasonable
person in the position of the police officer could have
concluded that the motorist was operating the vehicle and
under the influence of intoxicating liquor. (Emphasis added.)
A police officer may consider the statement of a third party in deciding whether
reasonable greunds exist to believe that the licensee was operating or in actual
physical contrel of the movement of the vehicle while under the influence of alcohol,
and there is no requirement that the third party be produced at the license suspension
hearing. Patterson v. Commonwealth, 138 Pa. Commw. 292 (1991).
In the case sub judice, (1) Officer Cornelius received a dispatch at 11:31 p.m.
that a woman, later determined to be Tracy Carper, reported that a driver known to her
02-1610 CIVIL TERM
was driving a vehicle toward 330 South 31st Street in the Borough of Camp Hill, and that
he was under the influence of alcohol, (2) the officer received a second dispatch that
the driver had arrived at 330 South 31st Street, (3) Officer Cornelius arrived at that
residence at 11:39 p.m., where Tracy Carper told him that Sullivan was the driver, (4)
the officer smelled an odor of alcohol coming from Sullivan, and saw that his eyes were
bloodshot and glassy, (5) Carper set forth in writing that Sullivan had just driven to the
residence from the Manicore Club in Harrisburg while he was under the influence of
alcohol, (6) the officer had Sullivan perform a walk-and-turn test which Sullivan started
too soon, was unable to keep his balance, missed heel-to-toe between every step both
out and back, raised his arms both out and back, and made an improper turn by
spinning and stumbling on the turn? (7) Sullivan refused to take a one-leg stand test,
and (8) the officer determined that the engine was warm in the vehicle Carper told him
Sullivan had just been driving. On these facts, we conclude that a reasonable person in
the position of Officer Cornelius could have concluded that Sullivan had just been
operating a vehicle in the Borough of Camp Hill while under the influence of intoxicating
~ See Commonwealth v. Ragan, 438 Pa. Super 505 (1995), in which the Superior
Court stated that sobriety tests "are grounded in theories which link the individual's lack
of coordination and loss of concentration, with intoxication. This inter-relationship is
also recognized in what is generally accepted as the common indicia of intoxication,
within the understanding and experience of ordinary people."
-5-
02-1610 CIVIL TERM
liquor?
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this ..~{~"" day of September, 2002, the within appeal from a
suspension of driving privilege, IS DISMISSED.
George Kabusk, Esquire
For the Department of Transportation
Austin Grogan, Esquire
For Appellant
:sal
~ From the evidence presented by witnesses who testified for petitioner, there is little
doubt that Sullivan was ill-served by Carper who was in a tiff regarding her perception
of Sullivan's conduct during an evening of drinking in Harrisburg. Notwithstanding, this
does not effect whether Officer Cornelius, viewing the facts and circumstances as they
appeared to him, could have concluded that Sullivan drove his vehicle in the Borough of
Camp Hill while under the influence of intoxicating liquor.
-6-
PATRICK T. SULLIVAN, III,:
Petitioner :
Vo
COMMONWEALTH OF PA
DEPARTMENT OF TRANSPORTATION
Respondent :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 02-1610 CIVIL TERM
IN RE: LICENSE SUSPENSION
Proceedings held before the
HONORABLE EDGAR B. BAYLEY, J.,
cumberland County Courthouse, Carlisle, Pennsylvania,
on September 23, 2002, at 1:38 p.m.
in Courtroom Number Two.
APPEARANCES:
GEORGE H. KABUSK, Esquire
For the Department of Transportation
AUSTIN F. GROGAN, Esquire
For the Petitioner
FQR THE COMMONWEALTH
1. Warren Scott Cornelious 4
2. Brandon Mitchem 27
FQR THE PETITIONER
1. Danelle McCann 29
2. Alvin S. Black 38
3. William Hall 49
4. Sherry Zimmerman 53
INDEX TO WITNESSES
DIRECT CROSS ~ ~
17 ....
35 37
47 --
52 --
58 --
FQR THE COMMONWEALTH
1.
2.
3.
INDEX TO EXHIBITS
PennDOT DL-26 Form
Tracy Carper's written statement
Video
FQR THE PETITIONER
1. Preliminary hearing
transcript
2. Part of one rear view mirror
3. Part of second rear view mirror
4. Photograph of house
~ ADMITTED
11 12
12 15
16 16
NOT IDENTIFIED/NOT ADMITTED
38 60
38 60
20 60
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September 23, 2002, 1:38 p.m.
Carlisle, Pennsylvania
(Whereupon, the following proceedings
were held:)
(Whereupon, Petitioner's Exhibits 1, 2
and 3 were marked for identification.)
(Whereupon, Commonwealth's Exhibits 1 and
2 were marked for identification.)
THE COURT: Proceed.
MR. KABUSK: Good afternoon, Your Honor.
This is the case of Patrick T. Sullivan, III, versus the
Commonwealth of Pennsylvania, Department of Transportation.
By official notice dated March 12th, 2002, the Department
notified Patrick T. Sullivan, III, operator's number
19-052-858, that as a result of his violation of Section
1547 of the Vehicle Code relating to chemical test refusal
on 2/9 of '02 his driving privilege was being suspended for
a period of one year. The Department now calls Officer
Cornelious.
Whereupon,
WARREN SCOTT CORNELIOUS,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q Officer Cornelious, please state your name
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and spell your last name.
A My name is Warren Scott Cornelious,
C-o-r-n-e-l-i-o-u-s.
Q Where are you employed?
A As a uniformed patrol officer with the Camp
Hill Borough Police Department, Camp Hill, Pennsylvania, in
Cumberland County.
Q During the course of your official duties,
have you had occasion to investigate an alleged incident of
DUI on or about February 9th, 2002?
A Yes.
Would you please tell the Court about that
Q
incident.
A
On Friday, February 8th, 2002, I began my
shift as a patrol officer with the Camp Hill Borough Police
Department at 2330 hours or 11:30 p.m. I was on station
when I received a telephone call from the Cumberland County
Communications Center reporting a possible DUI headed
southbound.
MR. GROGAN: I'm going to object at this
point to anything the 911 call would refer to to the truth
of the matter asserted. I'm assuming he's going to testify
that his actions were based on the information received.
THE COURT: It is admissible to show why he
did what he did. You were dispatched to do what?
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THE WITNESS: I was dispatched for a
possible DUI, Your Honor, coming from the City of
Harrisburg via the Harvey Taylor Bridge onto the Camp Hill
bypass. The caller had indicated that the defendant -- the
driver of the DUI vehicle was known to her and would be
going to 330 South 31st Street in the borough of Camp Hill.
The caller also indicated that there may be some type of
altercation slash --
MR. GROGAN: I would object to anything this
caller -- this call went to 911, not to Officer Cornelious.
THE COURT: Overruled. This is what you are
receiving in the dispatch?
THE WITNESS: Yes, Your Honor.
THE COURT: Go ahead. You may tell me what
the dispatcher told you.
THE WITNESS: About a possible altercation
at that residence.
I finished getting my stuff to load it into
my patrol car, and a second call was received advising that
they were now home and requested the police to respond
there immediately for a domestic.
I responded to that residence where I
arrived at or about 2339 hours, or 11:39 p.m., and met with
the complainant, Tracy Carper. Ms. Carper began explaining
to me --
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MR. GROGAN: Just for the record, I'm going
to object to anything Tracy Carper would have said. She's
not here today, and I believe they are going to try to
offer this for the truth of the matter asserted.
MR. KABUSK: Your Honor, he is testifying as
to the basis for reasonable grounds. All that is
admissible testimony.
THE COURT: I agree.
the address you were dispatched to?
THE WITNESS:
Overruled. What was
I'm sorry.
330 South 31st Street, Your
Honor.
THE COURT: Now, you arrived and Tracy
Carper was there?
THE WITNESS: Yes, Your Honor. I met with
Tracy Carper who was at the front door. Upon my approach
to the front door, I noted that there was a birdhouse that
appeared to be at the right of the door. It had been
knocked over.
I met with Ms. Carper who advised me
initially that this gentleman drives intoxicated home from
Harrisburg every weekend and what was the Camp Hill Police
going to do about it. I began conversing with her. She
told me that there were threats made against her, however,
there was no assault.
I took her information and asked her where
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the other half of this domestic was. Ms. Carper advised me
that he was upstairs, and I explained to her that there was
nothing that I could do about the DUI unless she was
willing to provide me with a written statement since I did
not see the gentleman drive, and she advised she would
provide me with a written statement and did, in fact,
provide me with that statement.
I went upstairs to speak with the gentleman
who Ms. Carper advised was the other half of the domestic
slash DUI driver, and he did verbally identify himself as
Patrick Sullivan. I noted that Mr. Sullivan was wearing a
pair of black shoes, gray pants, and a long-sleeve white
dress shirt.
While speaking with Mr. Sullivan, I could
detect an odor of an alcoholic beverage emanating from him
and noted that his eyes were bloodshot and glassy in
appearance. When asked how much he had to drink, Mr.
Sullivan advised me that he had not been drinking. I asked
him to explain how I could smell an odor of an alcoholic
beverage emanating from him, and he advised me that he did
not have to explain anything to me.
Sergeant Olson of the Camp Hill Police
Department arrived at some point and began speaking with
Carper, and I requested that Mr. Sullivan accompany me back
downstairs to find out what the problem was. Mr. Sullivan
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advised me that there was no problem and he was not going
downstairs, and I again advised him that he needed to go
downstairs until we could sort this out.
The written statement was obtained from Ms.
Carper, and I advised Mr. Sullivan to step outside so that
I could administer the standardized field sobriety tests to
him. He did comply with my request, and once outside I did
administer the standardized field sobriety tests to him
between the -- behind the rear of my patrol car.
During the sobriety tests, I noted the
following signs of intoxication. During the walk-and-turn,
the instruction stage, I noted that he could not keep his
balance and he started the test too soon. During the
walking stage, I noted that he missed heel-to-toe between
every step both out and back, and he raised his arms both
out and back. I also noted that he made an improper turn
by spinning and stumbling on the turn.
After I explained the instructions to the
walk-and-turn to Mr. Sullivan, he advised me that he was
not going to take the one-leg stand test since he was not
driving a vehicle.
Based on everything that I had observed thus
far, I believed that Mr. Sullivan was under the influence
of alcohol to a degree that he could not safely operate a
motor vehicle, and at or about 2346, or 11:46 p.m., I did
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place him under arrest for DUI and secured him in the rear
of my patrol car.
BY MR. KABUSK:
Q Officer Cornelious, how did you place him
under arrest?
A I advised Mr. Sullivan that he was being
placed under arrest for DUI, handcuffed him to the rear of
his body, and secured him in the rear of the Jeep that I
was driving that evening.
Q Then what happened?
A I went back and touched the hood of the
GMC -- green GMC that Carper advised that he was driving
and noted that the hood was still warm to that vehicle.
Q What did that indicate to you?
A Indicated to me that the vehicle had been
recently parked there, thus giving more credit to Ms.
Carper's statement.
Q Then what happened?
A I transported Mr. Sullivan to the West Shore
Booking Center where he would be requested to submit to a
chemical test of his breath. I arrived at the West Shore
Booking Center at or about 11:56 p.m. where I released him
into the custody of Agents Judy Jones and Brandon Mitchem,
both of the Cumberland County Central Processing Center.
Then at or about 12:17 a.m. on Saturday,
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February 9th, 2002, I did read the 0'Connell Warnings to
Mr. Sullivan from the PennDOT DL-26 form on videotape and
obtained his signature that he understood the form. When
asked if Mr. Sullivan would submit to the chemical test
that I requested of him, he advised me that he would not
take the breath test.
Q How did he so advise you?
A He advised me verbally that he would not
take the breath test.
And you indicated you read the PennDOT DL-26
Q
form to him?
A
Q
Yes, sir.
What's been marked as Commonwealth Exhibit
No. 1 is a copy of that form, and this is a photocopy
similar to that. Would you identify that fo~m?
A Yes, sir. It is a copy of the DL-26 form
that I read to Patrick Timothy Sullivan at 12:17 a.m. on
Saturday, February 9th, 2002.
Q And what did you read to him?
A I read Section 1 through 4(c).
MR. KABUSK: Your Honor, in the interest of
time, I will forego him having to read it word for word.
BY MR. KABUSK:
Q
A
But you testified you read it word for word?
Yes, sir.
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MR. KABUSK: I move for the admission of
what has been marked Commonwealth Exhibit No. 1.
THE COURT: Admitted.
MR. KABUSK: May I approach the witness,
Your Honor?
BY MR. KABUSK:
Q
THE COURT: Yes.
I'm going to show you what has been marked
as Commonwealth's Exhibit No. 2. Would you identify that?
A Yes, sir. It is a copy of the written
statement provided to me by Tracy Carper.
Q When did you obtain that?
MR. GROGAN: I'm going to object, Your
Honor. That's not what this document indicates. It
indicates the witness is Sergeant Tom Olson, not Patrolman
Scott Cornelious.
THE COURT: What is it?
THE WITNESS: It's the written statement,
Your Honor. I provided a copy to Ms. Carper. Sergeant
Olson was present when it was written, and I collected the
written statement from Ms. Carper.
THE COURT: Okay.
BY MR. KABUSK:
Q
A
When did you obtain that statement?
After Mr. Sullivan was placed in the rear of
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my patrol car.
Q
A
Would you read that statement.
Yes.
MR. GROGAN: I just want it noted for the
record I'm objecting to the officer reading the statement
because it is a hearsay statement. He's already testified
to what he did based on the information received.
THE COURT:
MR. KABUSK:
grounds, Your Honor.
THE COURT:
MR. KABUSK:
prove the truth of this.
What is this admissible for?
This goes to reasonable
Through hearsay?
Your Honor, I'm not trying to
I'm trying to prove that he
had -- this goes to his reasonable grounds.
THE COURT: You are trying to show what she
told him, but this is after he was placed under arrest,
right, after the arrest, not before the arrest?
MR. KABUSK: That's true, Your Honor.
THE COURT: You have got to show your
reasonable grounds before or you can make it up later?
MR. KABUSK:
anytime during the incident.
THE COURT:
MR. KABUSK:
Reasonable grounds can be at
Do you have authority?
I do, Your Honor. I would cite
to you the case of PennDOT versus Stewart, 527 A.2d, 1119.
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THE COURT: 520?
MR. KABUSK: 527 A.2d 1119. I would read to
you the portion -- this is a quote from the case. The
inquiry is not whether the officer as he approached the
scene had reasonable grounds, rather it is whether at
anytime during the course of the interaction between the
officer and respondent the officer was given reasonable
grounds to believe he was driving under the influence of
alcohol.
THE COURT: What were the facts of that
case?
MR. KABUSK: The officer received a call
reporting an automobile accident. He arrived at the scene.
Respondent was leaning over the car removing a spare tire.
No one else was around. During the course of questioning,
respondent admitted having operated the vehicle.
The officer noted the respondent had the
strong smell of alcohol. The officer asked respondent to
take field sobriety tests. The respondent did not. The
officer stated that he gave respondent three field sobriety
tests. He asked respondent -- et cetera, et cetera.
THE COURT: So you are saying it is
before -- he had all this information before he asked him
to take the test in this case, in our current case?
MR. KABUSK: Yes, Your Honor.
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BY MR. KABUSK:
Q
A
THE COURT: The objection is overruled.
Would you read the statement.
Yes, sir. I went downtown to the
Maennerchor Club, Second and North Street. I took Pat out
at about 11:20. He called me names and kicked me on the
way out. This occurred in Harrisburg.
Followed him home -- I believe it says to or
at 330 South 31st Street, Camp Hill. I observed him
driving a green Suburban from the Maennerchor Club to Camp
Hill. He was under the influence of alcohol.
When we got home, he was verbally abusive,
threw mailbox poles at me. I told him to get the,
explicit, fuck out, end of explicit. I called Camp Hill
Police. They met me at the house.
MR. KABUSK:
witness, Your Honor?
THE COURT:
MR. KABUSK:
Thank you. May I approach the
Yes.
I move for the admission of
what's been marked Commonwealth's Exhibit No. 2.
THE COURT: Admitted.
BY MR. KABUSK:
Q Then you stated you read the DL-26 to him
word for word at the booking center?
A Yes, sir, to Mr. Sullivan who is seated to
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the left of Mr. Grogan.
Q Are you aware that a tape has been made of
that?
Honor.
long.
A Yes, sir, I was.
MR. KABUSK: We have a tape here, Your
It's very short. It's approximately three minutes
I would like to show that to the Court.
THE COURT: Okay. Are you going to mark it?
MR. KABUSK: Yes, Your Honor. This would be
Commonwealth Exhibit No. 3.
(Whereupon, the tape was played for
the Judge.)
MR. KABUSK: That is the relevant portion,
Your Honor. I move for the admission of what's been marked
Commonwealth Exhibit No. 3.
THE COURT: It is admitted.
BY MR. KABUSK:
Q
the DL-267
A
Q
times of this matter.
Officer Cornelious, did the petitioner si~n
incident?
arrive?
Yes, sir, he did.
Once again, would you review the relevant
When were you initially told of the
When were you dispatched and when did you
A I was dispatched at 2331 hours on Friday,
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February 8th, 2002. I arrived at 2339 hours on Friday,
February 8th, 2002. I arrested Mr. Sullivan at 2346 hours
on Friday, February 8th, 2002. I requested and read the
DL-26 form for the breath test request on Saturday,
February 9th, 2002, at or about 0017 hours.
MR. KABUSK: Thank you. No further
questions.
THE COURT: Cross.
MR. GROGAN: Thank you.
CROSS EXAMINATION
BY MR. GROGAN:
Q Officer Cornelious, just to clarify for the
record, you never saw the driver drive his vehicle or any
vehicle that evening, isn't that correct?
A That's correct.
Q As a matter of fact, he was not in control
of any vehicle when you arrived at his home, isn't that
also correct?
A
Q
That's correct.
Just to clarify, from the testimony here
today at the preliminary hearing, you found Mr. Sullivan in
his bedroom on the second floor in his home in Camp Hill,
isn't that also correct?
A That's correct.
Q And the only information that you have
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regarding Mr. Sullivan's movement the evening of February
8th was from Tracy Carper?
A That's correct.
Q And it's your testimony that when you
arrived at that home she was agitated and upset with Mr.
Sullivan?
A Yes.
Q And that she described some type of verbal
altercation with Mr. Sullivan?
A A verbal that occurred in Camp Hill, yes.
Q And it's your testimony here today that you
gave her a witness statement to complete? Is that your
statement here today?
A Yes, sir.
Q But you had never actually saw Miss Carper
complete the statement, isn't that also correct?
A That's correct.
Q It was actually Sergeant Olson who was with
Miss Carper when she completed whatever statement you
submitted here today, isn't that also correct?
A Yes, Sergeant Olson was with her while she
gave the statement. I collected the statement from her.
Q And Miss Carper is not here today, isn't
that true?
A That's true.
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Q
also true?
A
Q
And Sergeant Olson is not here, isn't that
That's true.
And Sergeant 01son was your supervising
sergeant when you were on duty that night?
A Yes, sir.
Q And he was supervising this arrest on the
evening of February 8th and the morning of February 9th?
A I don't think he was supervising the arrest,
but he was acting as a supervisor, yes.
Q A supervisor on that evening and morning?
A Yes, sir.
Q And that's under the rules of the Camp Hill
Police Department?
A I don't understand that question.
Q Well, the rules require that you have backup
when you go to make an arrest, isn't that true?
A That's not true.
Q It was true though, wasn't that true?
A What was true?
Q That you had to ride along with a
supervising sergeant at a point when you were a Camp Hill
police officer?
A That is true, yes.
Q On the morning -- on the night of August 8th
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when you arrived to the Sullivan home, Miss Carper came out
to speak to you on the front porch, isn't that true?
A Yes, the front door stoop, front porch, yes.
Q I'm going to show you a picture which I will
mark as Petitioner's Exhibit 4.
(Whereupon, Petitioner's Exhibit No. 4
was marked for identification.)
BY MR. GROGAN:
Q Officer, I'm going to show you a picture of
a home. Take a moment to review that picture. Is that the
picture of Mr. Sullivan's home as it appeared on the
evening of August 8th, 2002, and the morning of August 9th,
2002?
A No, I don't believe so.
Q How is it different?
A Well, you actually -- the picture appears to
be off of Columbia or Dickinson Avenue rather than the
South 31st Street, and there was some sort of -- it was
either a birdhouse or a pole, mailbox, to where this little
chair would be sitting to the right side of the door.
Q Do you recognize this as Mr. Sullivan's
home?
A Yes.
Q Do you recognize the front door and the
front stoop on that home?
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A Vaguely.
Q Is that where you met Miss Carper on the
evening of February 8th, 2002?
A Possibly.
Q You met her at the front door, is that your
testimony here today?
A It was the door off of South 31st Street is
the door that I met her at.
Q Did you meet her at the front door of the
home?
A I met her on the door at South 31st Street.
The address is 330 South 31st Street. So if you want to
call that the front door or the side door, that's correct.
Q And you don't have a clear recollection
today if that's where you met Miss Carper?
A No, I don't.
Q But she came out of the front door and met
you, is that true?
A She came out of the door on the 31st --
South 31st Street side and met me on the stoop of the
porch.
Q And then she described this domestic
incident as you testified here today to?
A Yes.
Q And then at some point after that you went
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in the house and called up to Mr. Carper who was on the
second floor, isn't that true?
A Mr. Sullivan?
Q Mr. Sullivan, excuse me.
A Yes, that's true.
Q And then you went upstairs to take him
downstairs, isn't that true?
A Yes.
Q And when you went upstairs, you found him
either at the bedroom door or inside the bedroom, isn't
that true?
A I don't think it was a bedroom door. I
believe it was a bedroom loft.
Q And he was looking down the steps as you
were looking up, isn't that correct?
A To the best of my recollection, yes.
Q And you spoke with him when he was on the
second floor of his home?
A Yes.
Q And he indicated to you that he did not want
to come downstairs?
A Yes.
Q And you ordered him to follow you
downstairs, isn't that true?
A Ordered, asked, yes.
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Q Did you say please come downstairs or did
you tell Mr. Sullivan to come downstairs?
A I might have asked please the first time.
don't ask please the second time.
Q And you had to direct him to come
downstairs, isn't that true?
A Yes.
Q And you were taking control of the
situation. Isn't that normal police practice?
A Yes.
Q And you were making your observations at
this point about the defendant, isn't that true?
A Yes.
Q The defendant at that point, now the
petitioner, is that correct?
A Yes.
Q And you ordered him to go outside, isn't
that also true?
A Yes.
Q You saw the videotape of Mr. Sullivan that
was taped on February 9th, 2002.
today in court?
A Yes.
Q Did he have an overcoat on?
A No.
Did you see that here
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Q And when you took him outside, you did not
allow him to get dressed for the weather, isn't that true?
A I did not allow him to put on a coat, no,
because he didn't ask.
You had a heavy winter coat on that morning,
Q
didn' t you?
A
It wasn't a heavy winter coat, but we have
our winter issue, yes.
Q You were wearing your winter issue on the
morning -- on the evening of February 8th and the morning
of February 9th?
A Yes.
Q And when you took him outside, it was
Sergeant Olson who was speaking with Miss Carper, is that
true?
A Yes.
Q When you took him outside, you basically put
him near your patrol car to do these field sobriety tests?
A Yes.
Q And that's when he told you he was not going
to comply with your request?
A No. He complied with some of my requests
for the sobriety tests, but he did not -- he would not
comply with the one-leg stand.
Q The one-leg stand. And at that point you
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placed him officially under arrest, isn't that true?
A Yes.
Q But his freedom of movement was stopped when
you directed him down from the second floor. Would you
agree on that?
A Yes, I believe so.
Q Now, it's your testimony that you had
reasonable suspicion that he was under the influence of
alcohol and incapable of safe driving. Is that your
testimony here today?
A Whether you want to use reasonable suspicion
or probable cause, yes.
Q Which term did you use -- are you using
probable cause?
MR. KABUSK:
THE COURT:
MR. KABUSK:
THE COURT:
BY MR. GROGAN:
Your Honor, this is --
yOu are objecting?
-- a legal conclusion.
Sustained.
Q Officer Cornelious, do you remember
testifying in a suppression hearing involving Danielle
Wagner with the Public Defenders' Office?
MR. KABUSK: Your Honor, objection.
the relevance to this?
MR. GROGAN:
What's
The proffer, Your Honor, I
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believe Officer Cornelious testified at a suppression
hearing in this courtroom that one time out of three after
he has formed reasonable suspicion that somebody is under
the influence he does not arrest them for -- or does arrest
them for DUI.
THE COURT:
MR. GROGAN:
three times when he --
THE COURT:
MR. GROGAN:
THE COURT:
don't want to.
BY MR. GROGAN:
Q
You want to admit that here?
Well, to show that two out of
Do you want to admit that here?
No, Your Honor.
Then ask another question if you
Officer Cornelious, turning your attention
to the DL form that you signed.
there?
Do you have a copy up
No, sir, I don't.
Can you testify to when Mr. Sullivan signed
A
Q
and dated the form?
A Yes. As we saw on the videotape, Mr.
Sullivan was presented it after I read it to him on
February 9th, 2002, at 0017 hours.
Q I asked you what was the date that he signed
it?
THE COURT: He just told you.
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MR. GROGAN: The date is different on the
on the form?
MR. GROGAN:
THE COURT:
THE WITNESS:
THE COURT: You mean what is the date marked
Is that what you are asking him?
Yes, Your Honor.
Is there a date on the form?
Yes, Your Honor. Mr. Sullivan
actually dated it February 8th, 2002.
BY MR. GROGAN:
Q
working for the Camp Hill Police Department, isn't he?
Mitchem.
Just for the record, Sergeant Olson is still
A
Yes.
MR. GROGAN:
THE COURT:
MR. KABUSK:
THE COURT:
THE WITNESS:
MR. KABUSK:
I have no other questions.
Any redirect?
No, Your Honor.
You may step down.
Thank you.
The Department calls Brandon
Whereupon,
BRAN-DON MITCHEM,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. KABUSK:
Q
Please state your name and spell your last
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name for the record.
A Brandon Mitchem, M-i-t-c-h-e-m.
Q And where are you employed?
A The District Attorney's Office, Central
Processing Department.
Q During the course of your official duties,
have you had occasion to be involved in the investigation
of an alleged incident of DUI on or about February 9th,
2002?
A
Q
A
Q
A
Q
they occurred?
A
Q
Yes, I did.
What was your role in that incident?
I was the processing agent in the case.
Did you watch the video as shown in here?
Yes, I did.
Did that accurately reflect the events as
Yes, it did.
Did the petitioner ever provide to you a
requested breath sample?
A No, he did not.
Q Did he inform you of any physical or medical
conditions that may have prevented him from properly
performing the test?
A Not to my recollection.
Q Did he exhibit any symptoms that would have
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indicated the presence of physical or medical conditions
that would have affected his ability?
A
excused.
Your Honor.
its witnesses.
testimony.
No.
MR. KABUSK:
MR. GROGAN:
THE COURT:
No further questions.
No cross.
You may step down. You are
MR. KABUSK: That is the Department's case,
The Department reserves the right to recall
THE COURT:
MR. KABUSK:
THE COURT:
MR. GROGAN:
You rest?
Yes, Your Honor.
Petitioner.
Yes, Your Honor.
I have
I would like to call first Danelle McCann.
Whereupon,
DANELLE McCANN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q
name.
A
Ma'am, just for the record please state your
Danelle McCann.
THE COURT: Spell your name, please.
THE WITNESS: M-c-C-a-n-n, D-a-n-e-l-l-e.
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BY MR. GROGAN:
Q
A
Ma'am, what do you do for a living?
I work for Rite Aid Corporation as well as
bartend at the Maennerchor Club in Harrisburg.
Q How long have you been a bartender?
A For almost six years.
THE COURT: Where again do you bartend?
THE WITNESS: The M-a-e-n-n-e-r-c-h-o-r.
BY MR. GROGAN:
Q Is that a private club?
A Yes, it is.
Q Just for the record, how long have you been
a bartender?
A A total of six years.
Q And have you had an opportunity to see
people intoxicated in the past --
A Yes.
Q -- during your years as a bartender? What
signs do you look for when somebody has been drinking or is
drunk?
A Intoxication signs would be eye contact,
slurred speech, physical demeanor, how they handle
themselves, if they are stumbling, how they can communicate
with you effectively is usually not there.
Q In addition to your duties as a bartender,
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have you had an opportunity to teach any type of bartender
certification courses?
A Yes, I have, here in Harrisburg.
Q And what type of bartender -- who do you
teach at this bartender certification course?
A Current bartenders or those who are
interested in the profession we teach and certify them.
And are you familiar with a TIPS
Q
certification?
A
Q
Yes, I am.
And have you taught the TIPS
certification --
A Yes, I have.
Q -- for wanna-be bartenders?
A Yes.
Q On the night of February 8th, 2002, were you
at this private club called the Maennerchor Club?
Yes, I was.
Were you there in your capacity as -- do you
A
work there?
A
Q
A
Q
I do work there.
Do you work there as a bartender?
Yes.
And were you there in your capacity as a
bartender on the night of February 8th, 2002?
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A
No, I was not.
What was your capacity that evening?
I was a patron of the facility.
Now, as you described it -- or I asked you
if this is a private club. Can you describe to the Court
how somebody gets into this private club?
A A member is issued a key card which they
buzz themselves in at the door. If they do not have a key
card or had maybe forgotten it, they can ring the doorbell
to be let in by someone inside the facility.
Q And on the evening of February 8th, 2002,
did you have an opportunity to let Tracy Carper into this
club?
A I did.
Q And why was that?
A She rang the door. I was not there
drinking. I was there on my way through town, and the
bartender was busy. I went to the door to answer it.
evening?
Q
When you opened the door, did Tracy come in?
Yes, she did.
What was her demeanor or her presence that
A She would not look at me. She was staring
at the ground and she mumbled. When she --
MR. KABUSK: Objection, hearsay, Your Honor.
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MR. GROGAN: It's actually not hearsay. It
goes to show what Tracy -- her appearance and actually goes
to her level of intoxication.
THE COURT:
MR. GROGAN:
THE COURT:
MR. GROGAN:
What is the question?
I asked her --
What did Tracy say?
What were her observations of
Tracy Carper as she let her in the club.
THE COURT: What did she look like? That
was the question. What was her demeanor?
THE WITNESS: When she came in, she didn't
make eye contact. She looked away from me. Her demeanor
was very standoffish. She didn't really want -- is that
what you mean?
BY MR. GROGAN:
Q
A
no.
THE COURT: Yes.
Did she say anything to you?
Other than mumbling who she was looking for,
Q After you enter the club, how do you get to
the main part of the club where all of the patrons are at?
A There is a hallway that leads into the
actual bar area.
Q And did you observe Tracy Carper walking
down that hallway?
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A I did.
Q And what were your observations about her
ability to walk the hallway?
A The hallway is very narrow, and she
staggered from side to side to get into the bar because she
walked in front of me.
bar?
Q
Did you follow her into the bar?
I did.
And what was her demeanor as she entered the
A She was -- almost a confusion.
a lot of people there. It's not very big. But she
searched for a few moments before she saw who she was
looking for. It took her a little while longer than it
should have.
Q
evening?
A No, I didn't even exist to her.
Q Was she -- in your experience as a
bartender, did she seem to be impaired that evening?
A
There is not
Did she appear to be coherent to you that
Absolutely.
And how impaired would you say she was that
evening?
A
was saying.
She was -- you couldn't understand what she
She was staggering. She just had every signs
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of intoxication.
Q If you were tending bar that evening on
February 8th, 2002, and you had saw Tracy, would you have
served her alcohol that evening?
A No, I would not have.
Q Why?
A Because she was intoxicated.
Q Based on your training and experience as a
bartender, was Tracy Carper under the influence of alcohol
that evening on February 8th, 2002?
MR. KABUSK:
THE COURT:
she was intoxicated.
MR. GROGAN:
Thank you.
THE COURT:
Objection, Your Honor.
Sustained. She already told me
I have no other questions.
Cross.
BY MR. KABUSK:
Q
CROSS EXAMINATION
Ms. McCaD_n, is this Maennerchor Club a
service club similar to, say, the Lion's Club or something
that is known for its good works?
A It's actually a German men's choir club. It
originated in 1863. It has slowly evolved over the years
to be open more or less to people in the area who get in by
current members.
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BY MR. KABUSK:
Q
A
Q
A
Q
A
Q
A
BY MR. KABUSK:
Q
A
Q
correct?
A
Q
that evening?
A
THE COURT: How do you spell Maennerchor?
THE WITNESS: M-a-e-n-n-e-r-c-h-o-r.
And it has a bar there, is that correct?
Correct.
And were people drinking that evening?
Yes.
And were you drinking that evening?
No, I was not.
And you are a friend of Mr. Sullivan?
I'm actually an acquaintance.
THE COURT: I'm sorry, you are what?
THE WITNESS: An acquaintance.
So you are not a friend?
No.
But you are here to testify on his behalf,
Correct.
And did you observe Mr. Sullivan drinking
Yes.
MR. KABUSK:
THE COURT:
No further questions.
Any redirect?
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BY MR. GROGAN:
Q
REDIRECT EXAMINATION
Did Miss Carper leave the bar and come back
in -- or the club and come back in?
time.
A
Yes, she did.
Who let her in the second time?
I cannot recall. It was not me the second
Q When she came in the second time, was she
visibly agitated and upset?
A Yes.
Q Can you describe what drew your attention to
Miss Carper when she returned the second time?
A She was cradling the mirror off of his SUV.
cross.
allow it.
MR. KABUSK:
I object to that.
THE COURT:
MR. GROGAN:
THE COURT:
Your Honor, he had closed his
He had his opportunity --
It is discretionary. I will
What was she carrying?
I agree he did close.
discretionary, and I will allow it.
BY MR. GROGAN:
Q
A
Go ahead.
What was she carrying?
It is
She was carrying the side mirror to his SUV.
I'm going to show you what's been marked as
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Petitioner's No. 2 and 3. Do you recognize these pieces of
equipment?
A It actually had the entire casing on it at
the time. It's minus the glass. It was the entire side
mirror contraption.
Q Did Tracy Carper bring in those items to
your club?
A One at a time.
MR. GROGAN: I have no other questions.
Thank you.
MR. KABUSK: Nothing further.
THE COURT: You may step down.
MR. GROGAN: Call Mr. Black.
Whereupon,
ALVIN S. BLACK, III,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q
the record.
A
Q
A
Q
A
Mr. Black, why don't you state your name for
My name is Alvin S. Black, III.
And do you have a nickname that you go by?
Chip.
What do you do for a living, Mr. Black?
I work for the United States Office of
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Personnel Management, Office of Merit Systems Oversight.
We investigate claims for and against employees of the
federal government.
Q Do you live here locally or do you live out
of town?
A Not presently, no. I live in Silver
Springs, Maryland.
Q Now, are you acquainted with the petitioner
here, Patrick Sullivan?
months.
A
Yes, I am.
How do you know Patrick Sullivan?
I worked with Pat probably for about six
Q And on February 2nd -- or, I'm sorry, excuse
me, February 8th, 2002, were you with Pat Sullivan on that
Friday evening?
A Yes, I was.
Q And when did you meet up with Pat Sullivan?
A Approximately 6:00 p.m. that night at a bar
called the Firehouse.
Q Where is the Firehouse located at?
A It's located right on Second Street there
near the Keystone, Commonwealth Keystone building, which is
where we were.
Q Were you there when Pat Sullivan arrived or
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did you come in after Pat Sullivan arrived?
A I believe I was there a little bit before
Mr. Sullivan was there.
Did you happen to see was Tracy Carper at
Q
that bar?
A
Q
Yes.
Did you have any interaction with Tracy
Carper that evening?
A Yes.
Q Can you describe her -- can you describe how
she looked that evening?
A Do you mean at this time?
Q At the Firehouse, yes.
A Rather pleasant, you know, calm demeanor.
Q Was she drinking that you know of?
A At the Firehouse, yes, I witnessed her
consuming alcohol.
And how long did you all stay at the
Q
Firehouse?
A
Q
Probably for about an hour or two.
During that hour or two, did Tracy Carper's
demeanor change at all?
A I would say so, yes.
Q And can you describe how her demeanor
changed during that hour that you were at the Firehouse
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with her?
A You know, she started to exhibit some of the
signs of being intoxicated, slurred speech, you know,
started to stumble a little bit.
Q When you say stumble, can you give an
example of how she was stumbling?
A Just not walking a straight line, you know,
tripping over herself, not falling of course, but that type
of thing.
Q
A
Q
A
Did you buy her any drinks that evening?
Yes.
And what did you buy?
I don't recall specifically, but her
favorite is apple martinis. I may have bought her one of
those.
Q Did all of you leave the Firehouse and go to
another bar?
A Yes, it's a bar called Fisaga's which is
directly up the street.
Q And who left the Firehouse with you to go to
this second bar called Fisaga's?
A Yes. It was roughly our whole group, Mr.
Sullivan, myself, and the rest of the party that was there.
Q Was Tracy with you?
A Yes.
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Q
Was Sherry Zimmerman with you?
Yes.
And did you walk or drive to this other bar?
We walked. It's not very far.
Where is this other bar located at?
Approximately two to three blocks from the
Firehouse on the same street.
Is it going towards the center of
Q
Harrisburg ?
A
Q
Right, towards the center of Harrisburg.
And when you arrived at the second bar, did
you all go in the second bar?
A Yes.
Q And did Tracy Carper go in with you?
A Yes.
Q Did Pat Sullivan go in with you?
A Yes.
Q Did Tracy Carper have more to drink that
evening at this second bar?
A Yes.
Q Now, how was her demeanor at the second bar?
Is she friendly? Is she hostile? Is she angry?
A She started to get progressively hostile.
Q To who?
A To Mr. Sullivan as the evening went on. I
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recall her saying things like she wanted to leave the
premises and so forth.
Q And what kind of signs -- you said that she
was stumbling in the first bar. Did she stumble, have
trouble keeping her balance in the second bar?
A Yes, again, and her tone of voice, the
volume of her voice increased. She became even more
stumbly, just her whole demeanor sort of progressed.
Q When you say her voice became loud or volume
went up, was she yelling or screaming?
A Yes, yes, in a -- I would call it not a real
loud scream, but she started to, you know, make accusations
towards Mr. Sullivan and started to have arguments and so
forth.
Q Was she combative with Mr. Sullivan?
A Not that I witnessed, no, at that point.
Q Was she arguing with him?
A Yes.
Q Did she eventually leave that bar by herself
or did you all leave that bar at another time as a group?
A Yes. From what I recall, Miss Carper left
that bar before we did, and then later on that night she
met up with us again at the Maennerchor Club.
Q How long did you remain in the bar after she
left that second bar Fisaga's?
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minutes.
then?
A I would say probably 45 minutes, 30, 45
Q
Is Mr. Sullivan with you?
Yes.
And you eventually leave that bar as a group
A
Yes.
Where did you go?
We went to the Maennerchor Club.
And where is that Maennerchor Club at?
It's sort of on a back street. I couldn't
even tell you how to get there right now, but it's not all
that far from Fisaga's.
Q Is it within -- is it within walking
distance?
A Yes.
Q And when you arrived at that bar, were you
with Pat Sullivan?
A Yes.
Q Was Tracy Carper with you?
A Not at that point. Mr. Sullivan signed me
in at that club because I'm not a member.
Q You are not a member so you were a guest
then. At some point did Tracy Carper come back into the
bar or come into that club?
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A Yes.
Q And what did you observe about Tracy
Carper's demeanor when you saw her in this private club in
Harrisburg?
A Again, it was extremely combative. She was
making accusations toward Mr. Sullivan. She wanted to
leave the premises immediately and was again physically
arguing with him, I guess verbally abusing him, so to
speak.
Q
A
Q
A
Q
A
Q
Did he leave with her at that point?
No.
Did she leave the bar?
Yes.
Did she return a second time?
Yes.
And anything unusual about the second time
when she came into the bar?
A The second time she entered the bar with
what appeared to be two of Mr. Sullivan's -- or one of Mr.
Sullivan's, actually, side view mirrors.
Q And what was she doing with that side view
mirror?
A Well, she lifted it up in the air and
smashed it on the floor there.
Q At the club?
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A At the club, yes.
Q Any other interaction between you and Tracy
Carper at that point?
A She really didn't have too much interaction
with myself. Again, she was making more verbal arguments
with Mr. Sullivan as well as Ms. Zimmerman making some
accusatory statements and so forth.
At some point did Mr. Sullivan leave with
Q
Tracy Carper?
A
Q
A
NO.
How did they get out? Who left first?
Essentially Tracy, Miss Carper, left first,
and then myself and Mr. Sullivan walked out of the club
together later on that night.
Q When you walked out of the club, did you
have an opportunity to see Tracy Carper?
A No, I did not.
Q Did you and Mr. Sullivan leave the area
together or did you separate after you left the club?
A We separated. We saw debris from his side
view mirrors at his vehicle, but I did not witness him
driving after that or anything to that nature.
MR. GROGAN: Thank you. I have no other
questions.
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BY MR. KABUSK:
Q
A
Q
A
Q
CROSS EXAMINATION
Mr. Black, you're a friend of Mr. Sullivan?
Yes, sir.
And you are testifying on his behalf?
Yes, sir.
And the evening of February 8th you
testified you were with him, is that correct?
A Yes, sir.
Q And you were essentially bar hopping,
correct?
bar?
bar?
A
That would be a correct term, yes.
And you met up with him at the Firehouse
A
Yes.
Was he drinking?
Yes.
Alcohol?
Yes.
And then from -- were you drinking alcohol?
Yes, sir.
And then from there you went to Fisaga's
A
Yes, sir.
Did he drink alcohol there?
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A Yes, I witnessed that.
how many though.
Q
A
Q
I could not tell you
Did you drink alcohol there?
Yes.
And from Fisaga's bar, did you go to the
Maennerchor Club?
A Yes, sir.
Q And that is essentially a drinking
establishment, correct?
A Yes, sir.
Q Was he drinking -- was Mr. Sullivan drinking
alcohol at the Maennerchor Club?
A I can't recall if Mr. Sullivan at that point
was drinking water or if he was consuming alcohol. So I
can't recall.
Q
Club?
A
Were you drinking alcohol at the Maennerchor
Actually I don't believe so, sir.
MR. KABUSK:
MR. GROGAN:
THE COURT:
THE WITNESS:
MR. GROGAN:
No further questions.
No redirect.
Sir, you are excused.
Thank you.
Call Bill Hall.
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Whereupon,
WILLIAM HALL,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q
state your name.
A My name is William Hall, H-a-l-1.
Q Where do you live, Mr. Hall?
A 7012 Pine Road, Harrisburg, Pennsylvania.
Q What do you do for a living?
A I'm an energy analyst for the Pennsylvania
Public Utility Commission.
Q And, Mr. Hall, do you know Patrick Sullivan?
A Yes, I do.
Q How do you know Mr. Sullivan?
A I've known Mr. Sullivan for about ten years.
We are good friends.
Q And were you with Mr. Sullivan on Friday
evening, February 8th, 2002, in Harrisburg?
A Yes, I met him at the Firehouse bar.
Q And did you have an opportunity to observe
Tracy Carper at the Firehouse bar?
A Yes, I did.
Q And could you describe her demeanor when you
Mr. Hall, just for the record, why don't you
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saw her at the Firehouse bar?
A Seemed perfectly normal. We often meet on a
Friday after work. I think I got there about 5:30. I
don't think Pat Sullivan was there yet. However, I was
talking to other people. I do remember seeing Tracy there.
Mr. Sullivan came in. He introduced me to a
few of the people he works with. We chatted for awhile. I
might have been there for about an hour. They had
discussed later going down to Fisaga's just to look at it.
I decided I didn't want to go there, and I went right
across the street to the Maennerchor Club which is a nice
quiet place.
Q Did you observe Tracy Carper drinking at the
Firehouse?
A Yes, I did.
Q Did you observe any signs of impairment or
intoxication while she was at the Firehouse?
A No, I didn't.
Q When you left the Firehouse, did you leave
with Tracy Carper and Pat Sullivan?
A No, I didn't.
Q Did you go directly to this private club
that's been described?
A Yes, and I had dinner.
Q At some point later in the night did they
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all -- did Pat Sullivan, Tracy Carper and this group of
people arrive at the Maennerchor -- did Pat Sullivan arrive
at the Maennerchor?
A Pat Sullivan and one or two of his friends
that I had previously met came in later. I noticed them.
They were a little bit away from where I was sitting, but I
said hello.
Q And was Tracy Carper with Pat Sullivan when
he arrived at the Maennerchor?
A No, not at that time.
Q Did she eventually show up at this club?
A Yes. My first recollection of her coming in
was with one of these mirrors. There was more to them at
that time, and, yes, I saw her come in.
Q What was her demeanor at that point when you
saw her at this club called the Maennerchor Club?
A I thought she had gone crazy. I could
barely understand what she was saying. She went right to
Pat. I could hear accusations, jumping from one issue to
the next issue to another issue, why did you do that and do
this, what about something else. I --
Q
Sullivan?
A
Q
Was she -- did you hear her argue with Pat
Yes.
Was she focused on one issue or was she
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ill-focused?
A She was very ill-focused and jumping from
one subject to another subject.
Q And what's your next recollection? Did they
leave together or did they leave one after the other?
A This went on for a little while.
storming out again. I asked Pat if he was okay.
yeah, I'll take care of this, and I went home.
She went
He said,
Maennerchor?
A
Thank you.
BY MR. KABUSK:
Q
correct?
A
Q
A
Q
A
Q
the Firehouse bar?
A Yes.
Is that the last time -- so you left the
Yes.
MR. GROGAN: I have no other questions.
CROSS EXAMINATION
Mr. Hall, you're a friend of Mr. Sullivan's,
Yes, that's correct.
And you are testifying here on his behalf?
Yes, that's correct.
And were you drinking at the Firehouse bar?
Yes.
And did you observe Mr. Sullivan drinking at
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Q
Were you drinking at the Maennerchor Club?
Yes.
Did you observe Mr. Sullivan drinking at the
Maennerchor Club?
A I don't recall watching him at that time.
could assume but that's all.
didn't see him buy a drink.
MR. KABUSK:
MR. GROGAN:
THE COURT:
THE WITNESS:
MR. GROGAN:
I didn't buy him a drink.
No further questions.
No redirect.
You are excused.
Thank you.
Your Honor, I call Ms.
Zimmerman, Sherry Zimmerman.
Whereupon,
SHERRY ZIMMERMAN,
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. GROGAN:
Q
your name.
A
Q
A
Q
A
Ma'am, just for the record, please state
My name is Sherry Zimmerman.
And where do you live, Miss Zimmerman?
I live in New Cumberland.
Miss Zimme~man, what do you do for a living?
I work for the Department of Transportation,
I
I
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Bureau of Municipal Services.
Do you know Patrick Sullivan?
Yes, I do. I'm his supervisor.
How long have you been Patrick Sullivan's
Q
supervi s or ?
A
Q
Since last October, I believe, about a year.
Were you present at this Firehouse bar
Friday evening, February 8th of 2002?
A Actually, I was not at the Firehouse. I
showed up at Fisaga's.
Q And--
A We all agreed as an office to kind of go out
as a group that night. I met them there.
Q Where do you work? You say you decided to
go out as a group.
A The Keystone building downtown.
Q Does Pat work there with you?
A Yes, he does.
Q On Friday, February 8th, you all decided to
meet up Friday evening?
A Yes, we decided to kind of go out as an
office.
Q So when did you first meet up with Pat? Was
this at the second bar?
A It was at the second bar, yeah.
I was
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working late, and it was probably, I'm thinking, around
7:00.
Q
A
Q
A
Q
When you arrived there, was Pat there?
Yes, he was.
Was Tracy there?
Yes, she was.
Did you have an opportunity to interact with
Tracy at this second bar?
A Yes, I did.
Q What was -- can you describe your
observations of Tracy that evening?
A Yes, I can. When I first met her, she was
friendly, but I could tell she was drunk. She was a happy
drunk. But throughout the course of the evening, there
was -- all of the co-workers were there, so we were all
kind of talking shop, and she sort of felt left out.
And through the course of the evening she
kept approaching us, and she would come off of her bar
stool and go over and say something kind of angry, and then
she would stagger over to her bar stool. It was apparent
that she was getting irritated with the fact that she was
not a part of this group.
Q Did she become combative with Patrick that
evening?
A
At Fisaga's she was argumentative. She was
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yelling in a loud kind of boisterous voice, but she wasn't
physically aggressive.
Q How did Pat respond to her at the second bar
Fisaga's?
A It was surprising because I don't think I
could have reacted that calmly. He was very calm, and he
seemed to be familiar with this is the way she gets and
I'll just be calm, she'll be okay. He was very calm.
Q Who left the bar first? Did Tracy leave
first or did Pat leave?
A Yes. After several attempts to get his
attention and they weren't working, he was like busy
talking shop, and she got angry and left.
Q At some point did the group of you leave
that bar to go to this third bar or establishment called
the Maennerchor?
A Yes. There was about -- there was four or
five of us still people from the office, and we just, yeah,
just about 20 minutes, 30 minutes later from my
recollection went to the Maennerchor.
Q And just for the record, how did you get to
this third establishment?
A
We walked.
Did Pat walk with you?
Yes.
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Q At the third establishment, did Tracy Carper
eventually show up?
A Yes, she did.
Q Anything unusual about her appearance when
she showed up that evening?
A Yes. It was like a bull in a China closet.
I mean, she came barreling into the room, angry, nothing --
I mean, she was kind of -- kind of like a bull in a China
closet, but she didn't have anything on her the first time,
and she was again trying to get his attention.
He was just standing there kind of like I
don't know how to do this. He was clearly embarrassed.
These were his new co-workers. He's trying to make an
impression, and his girlfriend is coming in just loud and
obnoxious.
Q Did she make derogatory co~ents about your
relationship with Pat?
A Well, clearly she wasn't getting his
attention, someone else was, so she started saying things
like so are you going home with her or are you going home
with me, which was extremely embarrassing because, I mean,
I'm his supervisor.
gone out as a group.
Q
another point?
This is the first time that we had
We hardly knew each other.
Did you see her walk from one point to
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A Yes.
Q Was she walking in control or was she
staggering or stumbling?
A She was staggering, yeah. You know, when
she -- I noticed when she would get off of her bar stool at
the first bar, she kind of bumped into people. Now, it's a
crowded place, but she was kind of like trying to, you
know, get through and she would bump into people, and at
the other bar she was just the same way.
Q
bar?
A
questions.
BY MR. KABUSK:
Q
A
wife.
BY MR. KABUSK:
Q
Sullivan?
A
Q
You say the other bar, you mean the third
The Maennerchor.
MR. GROGAN: Thank you. I have no other
CROSS EXAMINATION
Miss Sullivan, you are a friend of Patrick?
Zimmerman.
THE COURT: She is his supervisor, not his
Miss Zimmerman, you are a friend of Patrick
I'm his supervisor.
But you are here testifying on his behalf?
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A
BY MR. KABUSK:
Q
A
Q
A
Q
A
Q
A
Q
A
Yes, I am.
And you work at PennDOT?
Yes, I do.
Are you on leave time or are you on --
THE COURT:
MR. GROGAN:
THE COURT:
Wait a minute.
She's been --
Give me a break.
Next question.
You met Pat Sullivan at what bar?
The second bar, Fisaga's.
And was Mr. Sullivan drinking at Fisaga's?
Yes, he was.
Were you drinking?
I had a beer.
And then you went to the Maennerchor Club?
Yes.
And was Mr. Sullivan drinking there?
He had something to drink. I believe it was
water actually.
Q And did you have any alcohol to drink?
A I had a beer there as well.
MR. KABUSK:
MR. GROGAN:
THE COURT:
THE WITNESS:
No further questions.
No redirect.
You are excused.
Thank you.
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MR. GROGAN: Your Honor, at this point I
move for the admission of Petitioner's No. 1, which is the
preliminary hearing transcript from a criminal preliminary
hearing on May 16th, 2002, at District Justice Bob
Manlove's office and move for the admission of 2 and 3
which --
THE COURT: Let's deal with that first. Any
objection?
MR. KABUSK:
THE COURT:
MR. KABUSK:
To the transcript?
Yes.
I don't know what the relevance
is. I would object to it on the basis of relevancy.
THE COURT: What is the relevance?
MR. GROGAN: Just the testimony from Officer
Cornelious as it was in May and as it was here today.
THE COURT: You can cross-examine him on
that. The offer is rejected. The exhibit is not admitted.
MR. GROGAN: I would move for admission of
Exhibits 2 and 3 which are the side mirror pieces from his
THE COURT:
MR. GROGAN:
Admitted.
And move for four, which is a
picture of Mr. Sullivan's home in Camp Hill.
THE COURT: Admitted.
MR. GROGAN: Your Honor, at this point the
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petitioner rests.
THE COURT:
MR. KABUSK:
THE COURT:
Any rebuttal?
No, Your Honor.
The record is closed.
Argument,
petitioner, off the record.
(Whereupon, argument was held off
the record.)
THE COURT: I will take it under advisement.
(Whereupon, the hearing was concluded
at 2:51 p.m.)
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CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on
the above cause and that this is a correct transcript of
same.
~lc~a~' coSuher~fRf~orter~
The foregoing record of the proceedings on
the hearing of the within matter is hereb~
directed to be filed.
~pproved and
Edgar B. B ~
Ninth Judicial~k~strict
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