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HomeMy WebLinkAbout98-0237 criminal COMMONWEALTH · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA V. ' · NO. 98-0237 CRIMINAL RANDALL ALAN SWARTZ, · Defendant · IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 HOFFER, P.J.: Randall Alan Swartz, defendant, was convicted of driving under the influence, pursuant to 75 Pa. C.S.A. §3731(a)(4), and the Court addresses defendant's statement of matters complained of on appeal. The facts of the case are as follow~;: early in the morning of October 19, 1997, Troopers Younger and Yunk of the Pennsylvania State Police were on night patrol in a marked vehicle. At approximately 4:55 a.m., they were traveling south on Route 233 in Cumberland County when they saw a vehicle parked, facing north, on the opposite side of Route 233· The troopers turned around to investigate the vehicle. Trooper Younger approached the vehicle. He saw the defendant asleep in the driver's position. The trooper knocked on the window and received no immediate verbal response from the defendant. The trooper saw that the defendant exhibited the classic signs of intoxication when aroused. Defendant's eyes were glassy and he smelled of alcohol. The engine of defendant's car was 98-0237 CRIMINAL TERM still warm. Defendant told the troopers that he just pulled over because he was tired. The troopers decided to administer field sobriety tests. Defendant stumbled during the tests and his speech was slurred. Both troopers agreed that the Defendant was not capable of safe driving. Defendant was placed under arrest. He was taken to the station and given breath tests. Using a properly calibrated testing device, defendant's blood alcohol content was found to be .161% at 5:26 a.m. and .166% at 5:29 a.m. Defendant was charged with violations of 75 Pa. C.S.A. §§3731(a)(1) and (a)(4). A jury trial was held in this matter September 9 and 10, 1998. The jury heard testimony concerning the facts of the case from the troopers, and "expert" medical testimony offered by the defendant. Defendant's expert, Dr. Lawrence Guzzardi, testified that determining, with any certainty, defendant's blood alcohol content at the time he was driving 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. Upon deliberation, the jury found the defendant guilty under 75 Pa. C.S.A. 2 98-0237 CRIMINAL TERM §3731 (a)(4) and not guilty under 75 Pa. C.S.A. §3731 (a)(1). In his statement of matters complained of on appeal, defendant asserts three errors by the Court. One, the evidence presented was insufficient to convict the defendant and the verdict was against the weight of the evidence. Two, the Court erred in allowing a Commonwealth witness to testify because the testimony was based on a statement defendant made to the troopers that defendant requested in discovery and the Commonwealth failed to disclose. Three, the troopers did not have probable cause to arrest defendant. 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 did not present expert opinion going to defendant's blood alcohol content at the time he was driving. The Commonwealth merely presented evidence that defendant's blood alcohol content was. 16% at the time tested. Defendant relies on the following line of cases to claim that the Commonwealth's failure to offer "relate back" testimony, to the time defendant was actually driving, renders the evidence insufficient and makes the verdict against the 3 98-0237 CRIMINAL TERM weight of the evidence: 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 could not assert that, beyond a reasonable doubt, 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 Supreme Court in Commonwealth v. Yarger, 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 and upheld the defendant's conviction for driving under the influence based solely on the report that found the defendant's blood alcohol content to be .18% at the time the blood was tested. 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 4 98-0237 CRIMINAL TERM 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 evidence that found defendant's blood alcohol content at the time of the breath tests to be at least · 161%. Defendant presented Dr. Guzzardi to attempt to refute the Commonwealth's prima facie case. Because the Commonwealth presented a prima facie case for driving under the influence, it became the jury's duty to give the appropriate weight to Dr. Guzzardi's testimony. The jury's finding of guilt reflects the fact that they did not believe Dr. Guzzardi's testimony effectively refuted the Commonwealth's prima facie case. The evidence presented was sufficient to maintain defendant's conviction and the verdict was not against the weight of the evidence. Defendant's Statements Defendant claims that the Court erred in admitting the testimony of a Commonwealth witness because the testimony was based on a statement made by the defendant, to the troopers, that defendant had just pulled over because he was tired. Defendant claims he was prejudiced by this testimony because he had ~ 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 98-0237 CRIMINAL TERM 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 was able to effectively cross examine the Commonwealth's witness because he learned of the statement shortly before trial. 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. Probable Cause to Arrest Probable cause exists when an officer has knowledge of sufficient facts and 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 troopers had probable cause to arrest the defendant for driving under the influence. Defendant exhibited the classic signs of intoxication and the engine of his vehicle was still warm. Defendant failed the field sobriety test given. Probable cause to arrest the defendant existed.