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HomeMy WebLinkAboutCP-21-CR-0001632-2017COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARGE: (2) PUBLIC DRUNKENNESS (SUM.) ZACHARY TAYLOR BAUGHMAN OTN: X0759091 : CP -21 -CR -1632-2017 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, S.J., April 10, 2018. In this criminal case, Defendant has filed a direct appeal from a judgment of sentence for the summary offense of public drunkenness.' Defendant's sentence did not include imprisonment.2 The grounds for his appeal have been expressed in a statement of errors complained of on appeal as follows: 1. The verdict with respect to Defendant's conviction for Public Drunkenness was insufficient as a matter of law because the testimony did not indicate that Mr. Baughman was under the influence of drugs or alcohol to a[/]the degree that he posed a danger to himself or others, nor was he annoying other persons in his vicinity at the time of his arrest. 2. The verdict was against the weight of the evidence and shocked one's sense of justice because the testimony did not indicate that Mr. Baughman was under the influence of drugs or alcohol to a[/]the degree that he posed any danger to himself or others, nor was he annoying other persons in his vicinity at the time of his arrest.3 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). Defendant's Notice of Appeal, filed March 9, 2018. 2 Order of Court, dated February 13, 2018. 3 Defendant's Amended Concise Statement of Errors Complained of on Appeal, filed April 2, 2018. STATEMENT OF FACTS As the result of an incident in January of 2017,4 Defendant was charged with possession of a controlled substance, an ungraded misdemeanor, and public drunkenness, a summary offense.5 Ultimately, the Commonwealth chose to forgo prosecution of the misdemeanor charge,6 and a trial was held on the summary public drunkenness charge on January 5, 2018, before the undersigned judge. The evidence adduced at trial may be summarized as follows. On Sunday, January 29, 2017,8 at around 2:00 a.m.,9 a male patron of a bar in the Borough of Carlisle, Cumberland County, Pennsylvania, 10 was approached inside the bar by Defendant, whom he did not know," with an offer to sell him a controlled substance known proprietarily as Xanax. 12 Defendant had been heard to make the same offer to others "at least three times before that," according to the patron. 13 The patron, who had previously served as a bouncer in the bar 14 and whose experience included about 50 encounters with persons who were intoxicated to the extent that they were a danger to themselves or others, 15 responded "Oh, absolutely," when asked whether he had recognized anything in Defendant's demeanor that led him to 4 N.T. 9, 17, Trial, Jaunary 5, 2018 (hereinafter N.T. _, Trial). 5 Criminal Complaint, filed January 30, 2017. 6 Order of Court, dated October 19, 2017. Defendant did not appear for the trial, which was conducted in his absence. N.T. 6-8, Trial; see Pa. RR. Crim. P. 455, 602; see generally Commonwealth v. Kujas, 291 Pa. Super. 411, 435 A.2d 1293 (summary offense case treated as court case under Rules of Criminal Procedure in certain circumstances). He was represented by counsel at trial. 'N.T. 9, 17, Trial. 9 N.T. 17, Trial. 10 N.T. 24, Trial. 11 N.T. 12, Trial. 12 N.T. 9-10, 12-13, 25, Trial. " N.T. 13. Trial. 14 N.T 11, Trial. 15 N.T. 11, Trial. W believe Defendant was under the influence of alcohol or a controlled substance. 16 He noted that Defendant was "swaying back and forth," "catching himself on the pool table," "visibly intoxicated," 17 "not very coordinated,"18 and "slurring his speech,"19 and displayed an emboldened and uninhibited temperament.20 The patron testified that, had he been on duty, he would have cut Defendant off or excluded him from the bar "well before that point. ,21 Outside the bar, the patron alerted a Carlisle Borough Police officer who was on foot patrol in the vicinity22 to the presence of Defendant, who he said had been offering Xanax for sale in the bar, was drunk, and had been ejected from the bar .2' As the officer approached Defendant, a second bar patron relayed the same information.24 Defendant's state of intoxication was "obvious" to the officer upon contact.25 Defendant's speech was slurred, he was excitable ,26 his breath smelled of alcohol, he was swaying, and he "put his arms out like wings" in an exaggerated and prolonged gesture of submission to a search .27 Defendant said that he had been ejected from the bar, but denied having offered Xanax for sale to patrons.21 By way of professional experience, the officer had encountered close to a thousand persons in the past who had been under the influence of alcohol or a controlled 16 N.T. 12, Trial. 17 N.T. 14. Trial. 18 N.T. 12, Trial. 19 N.T. 12, Trial. 20 N.T. 12, Trial. 21 N.T. 14, Trial. 22 N.T. 18, Trial. 23 N.T. 19, Trial. 24 N.T. 19. Trial. 25 N.T. 19, Trial. 26 N.T. 22, Trial. 27 N.T. 20, 22, Trial. 28 N.T. 20, Trial. 3 substance to a degree that rendered them a danger to themselves or others .29 His testimony on this point with regard to Defendant's condition was as follows: Q Okay. Based on your training and experience, did you come to a conclusion as to whether Mr. Baughman was unsafe to himself or others based upon his level of intoxication? A Yes. Q And what was your conclusion? A I concluded that he was incapable of making sound decisions that were going to keep himself safe and others as far as offering a Schedule IV Controlled Substance to people for sale along with possibly ingesting them himself or approaching the wrong person about such activities and getting hurt himself so that they can procure that pill without paying for it.30 Defendant chose not to accept the officer's advice to leave the vicinity of the bar 31 and he was ultimately arrested and charged with public drunkenness and possession of a controlled substance.32 From the judgment of sentence for public drunkenness,33 he has filed an appeal to the Pennsylvania Superior Court .34 DISCUSSION General. The summary offense of public drunkenness is defined in the Crimes Code as follows: A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol or a controlled substance ... to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity. 18 Pa. C.S. §5505. 29 N.T. 23, Trial. 30 N.T. 23, Trial. 31 N.T. 21-22, Trial. 32 See text accompanying notes 5-7 supra. 33 A presentence investigation report revealed a prior record score for Defendant of 3. N.T. 2, Sentencing Proceeding. 34 Defendant's Notice of Appeal, filed March 9, 2018. C! Sufficiency of the evidence. "The test for sufficiency of the evidence is whether, accepting as true all of the evidence, be it direct or circumstantial, and all reasonable inferences arising therefrom upon which, if believed, the trier of facts could properly have based the verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted." Commonwealth v. Johnson, 458 Pa. 23, 24, 326 A.2d 315, 316 (1974). In the present case, evidence of Defendant's manifest intoxication in the form of opinion and descriptive testimony, his annoyance of other persons to the degree that he was ejected from an establishment and provoked civilian reports to police, and his self - endangerment by way of unsolicited offers of drug sales to strangers was, in the court's view, more than sufficient to satisfy the elements of public drunkenness beyond a reasonable doubt. Weight of the evidence. Principles related to a weight -of -the -evidence challenge to a verdict in a criminal case have been summarized by the Pennsylvania Superior Court as follows: A true "weight of the evidence" claim contends the verdict is a product of speculation or conjecture. Such a claim requires a new trial only when the verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Ables, 404 Pa. Super. 169, 590 A.2d 334 (1991)[, appeal denied, 528 Pa. 620, 597 A.2d 1150 (1991)]. A decision regarding the weight of the evidence is within the sound discretion of the trial judge whose decision will not be reversed on appeal absent an abuse of that discretion. Commonwealth v. Fox, 422 Pa. Super. 224, 619 A.2d 327 (1993)[, appeal denied, 535 Pa. 659, 634 A.2d 222 (1993)]. Commonwealth v. Beckwith, 449 Pa. Super. 433, 442, 674 A.2d 276, 281 (1996); see Commonwealth v. Dougherty, 451 Pa. Super. 248, 259, 679 A.2d 779, 785 (1996) (principles applied in summary offense case). 61 In the present case, where Defendant did not appear for trial" and presented no witnesses or exhibits, there was little to weigh against the testimony of the Commonwealth's witnesses, whom the court found credible, recounted above. The court did not find the Commonwealth's evidence internally deficient, as evidenced by its conclusion that the elements of the offense had been established beyond a reasonable doubt, and was not, obviously, shocked by the verdict. 16 BY THE COURT, J. Wesley Oler, Jr., S.J. Charles J. Volkert, Jr., Esq. Chief Deputy District Attorney Cumberland County Courthouse 1 Courthouse Sq. Carlisle, PA 17013 For the Commonwealth Christopher McCabe, Esq. Assistant Public Defender Cumberland County Courthouse 1 Courthouse Sq. Carlisle, PA 17013 For the Defendant " See note 7 supra. 36 The difficult issue of whether a weight -of -the -evidence contention has been preserved in a summary offense case is beyond the scope of this opinion. Cf. Commonwealth v. Dougherty, 451 Pa. Super. 248, 679 A.2d 779 (1996). Gol