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HomeMy WebLinkAbout97-2466 criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : :NO. 97-2466 CRIMINAL DEAN WILLIAM CHESTNUT, Defendant IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 HOFFER, P.J.: Defendant, Dean William Chestnut, has appealed his conviction, pursuant to 75 Pa. C.S.A. §3731 (a)(4), for operating a vehicle with a blood alcohol content of more than .10%. The facts underlying defendant's conviction are as follows: on August 21, 1997, a witness reported seeing a motorcycle accident along Route 944 in Cumberland County and a person staggering in the roadway. At 9:27 p.m. Officer James Peterson of the North Middleton Township Police responded to the report. At the scene, the officer encountered the defendant sitting on the edge of the · road. The defendant told the officer that he wrecked his motorcycle trying to avoid a deer. The defendant's motorcycle was found 400-600 feet away with the engine still warm. The officer noticed that the defendant staggered when he stood up. The defendant had bloodshot eyes and smelled strongly of alcohol. The officer asked the defendant if he had been drinking and the defendant told the officer that he had three or four beers during the evening. In the interest of defendant's 9%2466 CRIMINAL TERM welfare, the officer called an ambulance; when the ambulance arrived, defendant refused any treatment. The officer placed the defendant under arrest after that. No field sobriety tests were administered. Defendant's blood was drawn for testing at 10:45 p.m. The lab analysis reflected that defendant had a blood alcohol content of .15% at the time the blood was drawn. Defendant was charged with driving under the influence, specifically violations of 75 Pa. C.S.A. §§3731(a)(1) and (a)(4). A jury trial was held in this matter September 8, 1998. The jury heard testimony regarding the facts surrounding the defendant's arrest and expert medical testimony offered by both the defendant and the Commonwealth, in rebuttal. Defendant's expert, Dr. Lawrence Guzzardi, testified that determining, with any certainty, defendant's blood alcohol content at the time of the accident was impossible. Dr. Guzzardi said that without specific information as to defendant's height, weight, the amount of alcohol consumed, the food in the defendant's stomach, and the exact time defendant was driving, establishing the defendant's blood alcohol content was a mere guess. The Commonwealth presented Dr. Theodore Siek, a forensic toxicologist, in rebuttal. Defendant accepted Siek as an expert. Siek testified that, within a reasonable degree of medical certainty, the defendant's blood alcohol content was above .10% at the 2 97-2466 CRIMINAL TERM time of the accident, approximately 9:30 p.m. On cross examination, it became clear that Siek could not determine the exact blood alcohol content at the time of the crash but that he maintained that, within a reasonable degree of medical certainty, defendant's blood alcohol content was. 10% or higher when the accident occurred. Upon deliberation, the jury found the defendant guilty under 75 Pa. C.S.A. {}3731(a)(4) and not guilty under 75 Pa. C.S.A. {}3731 (a)(1). Defendant's statement of matters complained of on appeal asserts that the Court committed a number of errors. Defendant asserts that there was insufficient evidence to convict and that the verdict was against the weight of the evidence. Defendant claims that the Court erred in denying his pretrial motion to suppress evidence because the officer did not have the requisite probable cause to make the initial arrest. Defendant believes that the Court committed error when it allowed the Commonwealth's expert to testify concerning facts requested but not received by the defendant before trial. Defendant asserts further error by the Court when it failed to give a jury instruction proposed by the defendant, related to the Commonwealth's failure to disclose the requested material. Finally, defendant believes that the sentence imposed upon him was excessive. The Court will address each of defendant's claims. 3 97-2466 CRIMINAL TERM Discussion Weight and Sufficiency of the Evidence Defendant claims that the Commonwealth failed to present evidence sufficient to convict and that the verdict was against the weight of the evidence. Defendant's argument centers on the fact that the Commonwealth's expert could not make a reasonably certain determination of defendant's blood alcohol content at the time of the accident. The Commonwealth's expert could only establish that defendant's blood alcohol content was above .10% at the time he was driving. Defendant relies on the following line of cases to claim that the Commonwealth's "relate back" testimony', to the time defendant was actually driving, was insufficient: Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992); Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992); Commonwealth v. Osborne, 414 Pa. Super. 124, 606 A.2d 529 (1992); Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995); and Commonwealth v. Shade, 545 Pa. 347, 681 A.2d 710 (1996). Defendant's reliance is misplaced. In Jarman and Modaffare, the Commonwealth's experts could not determine beyond a reasonable doubt that the defendants' blood alcohol content was above .10% at the time the defendants were driving. Defendant failed to recognize the precedent set by the Pennsylvania 4 97-2466 CRIMINAL TERM Supreme Court in Commonwealth v. Yarqer, 538 Pa. 329, 648 A.2d 529 (1994). The court in Yarger held that the Commonwealth is under no duty to present expert testimony to prove that a driver operated a vehicle with a blood alcohol content of .10% or higher. Id. at 334, 648 A.2d at 531. Upon presenting testimony that a driver's blood alcohol content was above. 10%, the Commonwealth has established a prima facie case under 75 Pa. C. S. A. §3731(a)(4). Id. at 335, 648 A.2d at 531. The defendant may present expert testimony to rebut the Commonwealth's prima facie case and the Commonwealth can counter with expert testimony to refute a defendant's expert.~ Id. In the case at bar, the Commonwealth presented the lab analysis which reflected that defendant's blood alcohol content was .15% at the time the blood was tested. Defendant presented Dr. Guzzardi to refute the blood alcohol content testimony. In rebuttal, the Commonwealth presented Dr. Siek who opined that defendant's blood alcohol content was above .10% at the time of the accident. The evidence presented was sufficient to maintain the defendant's conviction. Probable Cause to Arrest Probable cause exists when an officer has knowledge of sufficient facts and ~ This interpretation is supported by Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995) and Commonwealth v. AIIbeck, 715 A.2d 1213 (Pa. Super. 1998). 5 97-2466 CRIMINAL TERM circumstances, gained through trustworthy information, to warrant a prudent man to believe that a suspect has been driving under the influence of alcohol or a controlled substance. Commonwealth v. Smith, 382 Pa. Super 288, 296, 555 A.2d 185, 198 (1989). The facts in the case at bar reflect that the officer had probable cause to arrest the defendant for driving under the influence. Defendant exhibited the classic signs of intoxication: bloodshot eyes and a strong odor of alcohol. In addition to these signs, defendant lost control of his motorcycle and crashed. Whether he swerved to avoid a deer or not, defendant was unable to adequately control his vehicle. The officer had probable cause to arrest the defendant. Testimony of Commonwealth's Expert Defendant claims that the Court erred in admitting the testimony of the Commonwealth's expert because the expert opinion was based on an understanding that the defendant had told the arresting officer that he had three or four beers on the night of the accident. Defendant claims he was prejudiced by this testimony because he had requested all inculpatory statements before trial and never received them. Although defendant's statement falls within the mandatory discovery rule in Pa. R. Crim. P. 305(B)(1)(b), in order to entitle him to relief in this matter, defendant would have to establish that he suffered unfair prejudice. See Commonwealth v. Rickabaugh, 707 A.2d 826, 841 (Pa. Super. 1997). Defendant 97-2466 CRIMINAL TERM was able to effectively cross examine the Commonwealth's expert after he learned of the statement. Defendant presented an expert of his own to refute the Commonwealth's blood alcohol content analysis. Defendant was not unfairly prejudiced. The Court did not err in allowing the Commonwealth's expert to testify. Jury Instructions Defendant further claims that the Court erred when it failed to give a jury instruction explaining that the defendant had requested all inculpatory statements before trial and that the Commonwealth failed to comply with the defendant's request. In reviewing jury instructions, the instructions must be looked at as a whole. Commonwealth v. Gibson, 547 Pti. 71, 91,688 A.2d 1152, 1162 (1997), cert. denied, _ U.S._, 118 S. Ct. 364, 139 L. Ed.2d 284 (1997). "The trial court has broad discretion in its phrasing of jury instructions so long as the instructions given adequately reflect the law." Id. It has been determined that defendant did not suffer unfair prejudice when the Commonwealth's expert used the defendant's own statement as a basis for the expert opinion. As a result, the jury instruction requested by the defendant was unnecessary. When viewed as a whole, the instructions given accurately reflected the law and the defendant did not suffer unfair prejudice. 7 97-2466 CRIMINAL TERM Sentence Defendant's final claim is that the sentence imposed by the Court was excessive. Upon conviction, defendant faced a mandatory minimum sentence of thirty days imprisonment in the county jail. As a result of Defendant's pattern of driving under the influence2, the Court chose to impose the following sentence: Defendant is to pay the costs of prosecution, pay fines of $410.00, and that he undergo imprisonment in the Cumberland County Prison for a period of not less than sixty days nor more that two years less one day. Defendant was approved for work release provided that space was available. Sentencing is a matter within the discretion of the trial court and must be respected unless it involves a manifest abuse of discretion. See Commonwealth v. Blackwell, 436 Pa. Super. 294, 316, 647 A.2d 915, 926 (1994). A court's discretion must be exercised in accordance with the applicable sentencing code. Id__:. A court's discretion includes the ability to impose a sentence beyond the sentencing guidelines provided that the guidelines are taken into consideration. Id. The sentence received by the defendant was not excessive. Although the mandatory minimum was thirty days, the Court did not abuse its discretion in imposing a sentence of sixty days imprisonment. The pre-sentence report received by the Court reflected that the mandatory minimum sentence was thirty days, that 2 Although the current offense was defendant's second for sentencing purPoses, it was his fourth overall. 97-2466 CRIMINAL TERM this was defendant's second offense for sentencing purposes and that this offense was defendant's fourth overall. The record reflects that the Court noted that this offense was defendant's fourth overall. In keeping with the policy of deterring the misuse of alcohol by drivers, the Court properly exercised its discretion in sentencing the defendant to sixty days of imprisonment in the Cumberland County Prison. 9