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HomeMy WebLinkAboutCP-21-CR-0214-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : SONDRA MAE SCHREINER : CP-21-CR-0214-2007 IN RE: OMNIBUS PRETRIAL MOTION FOR RELIEF OPINION AND ORDER OF COURT Bayley, J., May 30, 2007:-- Defendant, Sondra Mae Schreiner, is charged in an information of violating the Vehicle Code at 75 Pa.C.S. Section 3802(a)(1), by driving under the influence, general impairment with refusal, a second offense graded an M1. Defendant filed an omnibus May 24, 2007 pretrial motion for relief. A hearing was conducted on . We find the following facts. On November 26, 2006, at approximately 4:00 a.m., Christy Haslock was driving a vehicle and delivering morning newspapers. She was on Society Hill Drive in Lower Allen Township when she came upon a vehicle in the street. She saw a person in the front driver side who was slumped over. Haslock wanted to make a right turn into the parking lot of some apartments. The vehicle, which was not parked at the curb, was partially into the lane Haslock was in. Haslock had to pull around the vehicle in order to turn into the parking lot which was just beyond where the vehicle was stopped. Haslock delivered some papers and when she returned the vehicle was in the same location. She was concerned and called 911. Officer Matthew Claeys of the Lower Allen Police responded. He saw the CP-21-CR-0214-2007 vehicle in the same location as Haslock described it. Claeys put his patrol vehicle emergency lights on, got out and walked up to the vehicle where he saw a woman in the driver’s seat who was slumped over toward the passenger side. The motor was running; the headlights were on; and the windows were up. Officer Claeys knocked on the driver side window and yelled without getting a response. He did so several more times until the woman looked up. The officer opened the driver’s side door and yelled to her, asking if she was okay. She said that she was just talking to her children. She was groggy and her eyes were bloodshot and glassy. The Officer smelled a strong odor of alcohol on her breath. He asked her to get her cards. She could not find them and said they were in her purse. She handed the Officer the purse and told him to get her cards out of it which he did. She was Sondra Mae Schreiner. The Officer had an EMS technician, who had arrived in an ambulance, check Schreiner. When the technician was finished, Officer Claeys asked Schreiner how much she had to drink that night. She said she was not drinking. He asked her where she was coming from. She said that he should know because he pulled her over. She said she would take a breath test. Officer Claeys had her get out of the car. She was unstable and almost fell. He gave her a preliminary breath test which was positive for alcohol. Feeling that it was unsafe to conduct field sobriety tests, he arrested her for driving under the influence. At the booking center, Schreiner consented to a breath test. She gave one valid sample but did not blow sufficient breath to register another valid sample. -2- CP-21-CR-0214-2007 MOTION TO QUASH In the criminal complaint, defendant was charged with: 75 -3802 Driving under influence of alcohol or controlled substance – 3802 a1 An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. (Emphasis added.) A Magisterial District Judge found a prima facie case and bound over to court ST “DUI: GEN IMP/INC OF DRIVING SAFETY – 1, GRADED A MISDEMEANOR.” The information charges defendant with driving under the influence, general impairment, in nd violation of Section 3802(a)(1), with a refusal, a 2 offense graded a misdemeanor one. Defendant, alleging a violation of Pa.R.Crim.P. 560, moves to quash the charge as being designated as a refusal, a second offense graded as a misdemeanor of the first degree. Rule 560 provides: (A) After the defendant has been held for court, the attorney for the Commonwealth shall proceed by preparing an information and filing it with the court of common pleas. (B) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains . . . (5) a plain and concise statement of the essential elements of the cognate to the offense offense substantially the same as or alleged in the complaint . . . (Emphasis added.) Commonwealth v. Slingerland, In 358 Pa. Super. 531 (1986), a police officer filed a criminal complaint against Slingerland charging him with operating a motor vehicle while under the influence of alcohol to the extent which rendered him incapable -3- CP-21-CR-0214-2007 1 of safe driving, in violation of 75 Pa.C.S. Section 3731(a)(1). The charge was bound over to court following a preliminary hearing. The District Attorney filed an information which alleged, in addition to a violation of 75 Pa.C.S. Section 3731(a)(1), that Slingerland had operated a motor vehicle when the alcoholic content of his blood exceed .10%, this being a violation of 75 Pa.C.S. Section 3731(a)(4). Slingerland filed an omnibus pretrial motion to quash the Section 3731(a)(4) charge as being in violation of Pa.R.Crim.P. 225. The motion was denied. Slingerland was convicted of violating Section 3731(a)(4), and found not guilty of violating Section 3731(a)(1). On appeal, he maintained that the 3731(a)(4) charge should have been quashed because it had not been included in the criminal complaint. Pa.R.Crim.P. 225(b)(5) provided, as does the current Rule 560, that the information contain “a plain and concise statement of the cognate essential elements of the offense substantially the same as or to the offense alleged in the complaint . . . .” (Emphasis added.) The Superior Court of Pennsylvania stated that this Rule does not require that the crime charged in the information be identical to that charged in the complaint as long as the charge is cognate to the one in the complaint. The Court, noting that the information prepared by the District Attorney charged appellant with violating different subsections of the same section of the Vehicle Code, concluded: The word “cognate” is defined in Webster’s Third New International Dictionary (1965) as “related, akin or similar esp. in having the same or __________ 1 This statute has been repealed and replaced by the current driving under the influence statute. -4- CP-21-CR-0214-2007 common or similar nature, elements, qualities or origin…” Applying this common usage of the word, it would seem that the two subsections of 75 Pa.C.S. § 3731(a) define cognate offenses. Even though the elements of the offenses defined in subsections (a)(1) and (a)(4) are not identical, the offenses are similar in nature and spring from a common concern. The substantive nature of the offenses is clearly the same, namely the operation of a vehicle after alcohol has been consumed to a degree which renders the operator a hazard to others and to himself or herself. Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater is unfit to drive, see: Commonwealth v. Mikulan, 504 Pa. 244, 249-251, 470 A.2d 1339, 1341-1342 (1983); whereas subsection (a)(1) requires proof that the defendant was, in fact, incapable of safe driving because of an excessive consumption of alcohol. Both subsections, therefore, proscribe the same conduct: driving a motor vehicle while under the influence of alcohol. We conclude, therefore, that the criminal complaint charging Slingerland with driving while under the influence of alcohol to an extent which rendered him incapable of safe driving was sufficient to allow the District Attorney to include in the information the cognate offense of driving while the defendant’s blood alcohol content exceeded 0.10%. See also, Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006), and Commonwealth v. Roser, 914 A.2d 447 (Pa. Super. 2006). The current Vehicle Code at 75 Pa.C.S. Section 3802 describes the offense of driving under the influence of alcohol to include: (a) General impairment.— (1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. Section 3803(b)(4) provides: An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath . . . and who has one or more prior offenses commits a misdemeanor of the first degree. -5- CP-21-CR-0214-2007 Section 3804(c) provides: An individual who violates section 3802(a)(1) and refused testing of blood or breath . . . shall be sentenced as follows . . . (2) For a second offense, to: (i) undergo imprisonment of not less than 90 days; (ii) pay a fine of not less than $1,500; (iii) attend an alcohol highway safety school approved by the department; and (iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815. sub judice, In the case the District Attorney added to the information charging the same subsection 3802(a)(1) offense as in the complaint a refusal and a second Slingerland, offense which is a misdemeanor one. Thus, unlike even the facts in the subsection of the driving under the influence statute that is alleged to have been 2 violated in the complaint and in the information has not changed. Only the allegations that the offense is a refusal and a second offense which makes it a misdemeanor of the second degree have been added. Under Section 3803(b)(4), a refusal just increases the grade of the offense to a misdemeanor of the first degree. Under Section 3804(c), a second offense with a refusal just increases the mandatory fine and minimum sentence. Therefore, the offense charged in the information is, at the very least, cognate to the offense charged in the complaint. The motion to quash will be denied. WRIT OF HABEAS CORPUS __________ 2 There are multiple subsections of Section 3802 that define the offense of driving under the influence of alcohol or controlled substances: (a)(1), (a)(2), (b), (c), (d)(1)(i), (d)(1)(ii), (d)(1)(iii), (d)(2), (d)(3), (d)(4), (e) and (f). -6- CP-21-CR-0214-2007 Commonwealth v. Saunders, Citing 691 A.2d 946 (Pa. Super. 1997), and Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005), defendant seeks the grant of a writ of habeas corpus dismissing the charge of driving under the influence. She maintains that there is insufficient prima facie evidence to show that she operated or was in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol to render her incapable of safely driving while operating or being in Saunders actual physical control of the movement of a vehicle. In , a police officer saw the defendant in a CoGo’s parking lot. The defendant was in the driver’s seat and was leaning his head against the driver’s side window. The car was in the “park” gear with the emergency brake on. The parking lot was for CoGo’s customers only, and vehicles of non-customers were periodically towed. CoGo’s does not sell alcohol beverages. The officer knocked on the driver’s side window with his hand but could not awaken the defendant. He knocked on the window for approximately two minutes with his nightstick, and defendant awoke. The defendant had an odor of alcohol on his breath, and his speech pattern was disoriented. The address on his driver’s license indicated he lived a one-half hour drive from the parking lot. The officer arrested him for driving under the influence. The trial court granted a writ of habeas corpus and dismissed the charge. The Superior Court of Pennsylvania reversed, finding that the Commonwealth presented sufficient prima facie evidence to support an inference that defendant drove his car, while intoxicated, to the CoGo’s parking lot. Brotherson, In the facts were: -7- CP-21-CR-0214-2007 At approximately 10:45 p.m. on March 24, 2001, Officer Jeffrey Trobes of the Philadelphia Police Department was on routine patrol of a closed playground at 3001 West Lehigh Avenue when he saw a car parked on the playground’s basketball court. According to the officer, th access to the park was located at the park’s 29 Street entry gate, which was routinely closed at dusk and was, in fact, closed when the officer observed the car in question. The only other way the car could have entered the park is if it had driven across a grass lot and onto the basketball court, but there was no testimony as to tire tracks through the grass or mud on the car. The officer approached the car to discover that the engine was running and a driver, Appellant, was asleep in the driver’s seat. From his vantage point, the officer saw an “open” 40 ounce bottle of malt liquor in the car. Officer Trobes awoke Appellant, whom the officer noticed to have glassy eyes and a slow response to questions. Based on his observations the officer administered sobriety tests, which Appellant failed. Officer Trobes therefore arrested Appellant and transported him for BAC testing, which showed Appellant to have a .118% BAC over three hours after the arrest. Accordingly, Appellant was charged with DUI. (Footnotes omitted.) The defendant was convicted of driving under the influence. On appeal he challenged the sufficiency of the evidence to support the conviction. The Superior Court affirmed, stating: The case at bar involves evidence above and beyond a showing that an intoxicated Appellant merely started the engine of a parked car. The highly inappropriate location of the car—on the basketball court of a gated children’s playground—created a strong inference that it was an already intoxicated Appellant who had driven the car to that spot. . . . Emerging from this collection of evidence is a clear illustration of the very type of public safety danger that the DUI statute was designed to combat: a drunken driver behind the wheel with engine running, having driven when he ought not and where he ought not. Accordingly, we conclude that the evidence established beyond a reasonable doubt that Appellant was operating or in actual physical control of his car while intoxicated for purposes of the former DUI statute. Saunders Brotherson, Following the reasoning in and in the present case the -8- CP-21-CR-0214-2007 location of defendant’s vehicle within the lane of Society Hill Drive, the time of night, defendant being in the driver’s seat slumped toward the passenger side, the motor running, the headlights on, defendant’s grogginess, disorientation, bloodshot and glassy eyes, and the smell of a strong odor of alcohol on her breath, creates a strong inference that the intoxicated defendant had driven the vehicle to that spot. Therefore, there is sufficient evidence to submit to a jury whereby they could conclude that defendant operated or was in actual control of the movement of a vehicle after imbibing a sufficient amount of alcohol to render her incapable of safely driving, operating or being in actual physical control of the movement of her vehicle. A writ of habeas corpus will not be granted. MOTION TO SUPPRESS EVIDENCE Defendant maintains that the “officer’s initial contact with the vehicle that defendant occupied was a non-custodial detention conducted without requisite reasonable suspicion and, thus, said contact was unlawful.” Therefore, she seeks to suppress “all after-acquired evidence.” Officer Claeys never stopped and detained defendant. He found defendant’s vehicle, a little after 4:00 a.m., stopped within the lane of a street with the headlights on, the motor running, and defendant behind the wheel slumped over toward the passenger side. He was unable to rouse defendant by knocking on the driver’s side window several times and yelling at her. It was only by opening the driver’s side door that he was able to get her to respond. This was a non- custodial encounter in which the officer, using good judgment, did what was necessary -9- CP-21-CR-0214-2007 to determine if defendant was in need of assistance. Once she responded the officer immediately noticed classic signs of intoxication that raised a reasonable suspicion that she had driven the vehicle to that location while under the influence of alcohol to a degree that rendered her incapable of safe driving. His continued investigation until he arrested her for driving under the influence and placed her into custody was legal because he observed specific conduct that reasonably led him to a conclusion that Terry v. Ohio, Commonwealth v. criminal activity was afoot. 392 U.S. 1 (1968); Hicks, 434 Pa. 153 (1969). Defendant further maintains that her “verbal response to the police officer questioning how she came to arrive at the location is not admissible under the corpus delicti rule and therefore, said statement, as well as any other after-acquired evidence must be suppressed.” Defendant argues that her “response to the officer that he should know where she was coming from since he pulled her over is not admissible under the corpus delicti rule because the Commonwealth cannot otherwise prove actual, physical control when the car she occupied was legally parked in a development with the engine running and headlights on and no one saw her driving.” Commonwealth v. Hogans, In 400 Pa. Super. 606 (1990), the Superior Court stated that the elements that combine to establish the corpus delicti of driving under the influence are (1) someone must be in control of a vehicle, and (2) that same person must be under the influence of alcohol at that time. It further stated that, “It is axiomatic Id. that circumstantial evidence alone may be used to prove the corpus delicti.” In -10- CP-21-CR-0214-2007 Hogans, the police were summoned to investigate the report of an accident. Upon their arrival, they found Appellant standing beside his vehicle. The vehicle was on its side. There were two other vehicles in the vicinity with people in them, as well as other individuals mulling about in the area. The Superior Court concluded that those facts established Appellant’s control of the vehicle for the purpose of satisfying the corpus delicti rule of evidence. Likewise, as we have already set forth, in the present case, there is sufficient circumstantial evidence that defendant drove her vehicle to where Christy Haslock and Officer Claeys found it late at night. She was not legally parked in a development. That is sufficient to establish control of the vehicle. The condition of defendant that Officer Claeys observed when he woke her up, included grogginess, disorientation, bloodshot and glassy eyes, and the smell of a strong odor of alcohol on her breath, was adequate to establish that she was under the influence of alcohol at that time for the purpose of satisfying the corpus delicti rule of evidence. Accordingly, defendant’s verbal responses to Officer Claeys are not barred by the rule. Therefore, the motion to suppress evidence will be denied. ORDER OF COURT AND NOW, this day of May, 2007, the omnibus pretrial motion of IS DENIED. defendant for relief, By the Court, -11- CP-21-CR-0214-2007 Edgar B. Bayley, J. -12- CP-21-CR-0214-2007 Matthew Smith, Esquire For the Commonwealth Shawn M. Curry, Esquire For Defendant :sal -13- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : SONDRA MAE SCHREINER : CP-21-CR-0214-2007 IN RE: OMNIBUS PRETRIAL MOTION FOR RELIEF ORDER OF COURT AND NOW, this day of May, 2007, the omnibus pretrial motion of IS DENIED. defendant for relief, By the Court, Edgar B. Bayley, J. Matthew Smith, Esquire For the Commonwealth Shawn M. Curry, Esquire For Defendant :sal