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HomeMy WebLinkAbout98-0413 criminalCOMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TODD ALLEN BAUSERMAN : NO. 98-0413 CRIMINAL TERM : : : IN RE: DEFENDANT'S POST SENTENCE MOTIONS BEFORE GUIDO, J. AND NOW, this ORDER day of FEBRUARY, 1999, Defendant's Post Trial Motions in the nature of a Motion in Arrest of Judgment and a Motion for a New Trial are DENIED. By the Edward E. Guido, J. William I. Gabig, Esquire For the Commonwealth Timothy L. Clawges, Esquire For the Defendant :sld COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : TODD ALLEN BAUSERMAN : NO. 98-0413 CRIMINAL TERM : : IN RE: DEFENDANT'S POST SENTENCE MOTIONS BEFORE GUIDO, J. OPINION AND ORDER OF COURT On September 1, 1998, the Defendant was found guilty of driving under the influence after a non-jury trial.~ On September 29, 1998, the Defendant was sentenced to a term of imprisonment in the Cumberland County Prison of not less than ninety (90) days nor more than twenty-three (23) months. Timely post trial motions were filed. Defendant has requested that we arrest judgment and grant him a new trial. The notes of testimony were transcribed and the parties were given the opportunity to brief their respective positions. This matter is now ready for disposition. STATEMENT OF FACTS On December 6, 1997, at about 7:00 p.m. Trooper Leonard Lander, Jr. of the Pennsylvania State Police was dispatched to a reported carjacking.2 He responded to 65 Cleversburg Road, South ~Defendant was acquitted of the various other charges filed at this term and number. 2N.T.4 NO. 98-0413 CRIMINAL TERM Hampton Township, Cumberland County, Pennsylvania where he met with the Defendant who was the alleged victim of the car- jacking.3 His interview of the Defendant and his subsequent investigation lead to the instant charges being filed. It seems that the Defendant had been drinking with two of his friends at a bar in a neighboring county.4 As Defendant was driving home from the bar, his drinking buddies insisted that he .. give up the wheel. He had been ~'all over the road" and was too drunk to drive,s They eventually switched drivers along the Cleversburg Road.~ Shortly thereafter, the Defendant objected to anyone else driving the vehicle. A further argument ensued 3N.T.4-5 4The Defendant reported it to be a bar in Adams County (N.T.6). His friend reported the bar to be in Franklin County (N.T. 19). SN.T.6 and N.T.19. ~One of the group, Jerry Ott, testified that the Defendant stopped driving the car in Franklin County. (N.T.19-20). However, the Defendant told the trooper that the switch of drivers occurred on the Cleversburg Road, which is located entirely within Cumberland County. (N.T.24, 25, 26). Mr. Ott was obviously hostile to the Commonwealth and we chose not to believe his testimony regarding where the switch of drivers occurred. Additionally, the residence from which the police were called is "a couple miles" within Cumberland County. (N.T.12). It is highly unlikely that Defendant could have walked that far in his condition. NO. 98-0413 CRIMINAL TERM and Defendant exited the moving vehicle.7 The Defendant then walked to a nearby residence and called the police.8 During the course of the interview, which lasted about 1/2 hour, it became apparent to the trooper that the Defendant was "highly intoxicated.''9 He smelled of alcohol and exhibited the classic signs of alcohol intoxication, including slurred speech and staggered gait. In addition, he was incoherent at times and had difficulty paying attention.~° The Defendant was placed under arrest for various offenses at approximately 7:45 p.m.~ He was transported to the Carlisle Hospital for a blood test. After receiving the implied consent warnings, he refused to submit to a blood test.~2 While at the Carlisle Hospital, the Defendant requested treatment for the injuries he sustained when he left the moving 7N.T.6 8N.T.4 9N.T. 10 ~°N.T. 10 ~N.T.32 The original charges included not only driving under the influence but several summary offenses. The Defendant was acquitted of all charges except the D.U.I. charge. ~2N. T. 32 NO. 98-0413 CRIMINAL TERM vehicle.~3 He was treated by Dr. Gerald Franko. The doctor testified that the Defendant's speech was slurred and that he "could not stand up to bear his own weight and walk around. He was almost collapsing to the ground.''~4 Dr. Franko drew blood for medical purposes. He wanted to verify that the Defendant's actions were related to alcohol intoxication rather than a more serious closed heard injury.~s The serum test done for medical purposes showed a blood alcohol content of .24%. at 9:57 p.m.~6 The doctor testified that this translated into a whole blood alcohol level of at least .14%.~7 He continued to observe the Defendant for three hours to be sure that additional testing for a closed head injury would not be necessary.~8 During that period the Defendant "did seem to improve and sober up.''~9 The doctor concluded that the ~N.T. 33 ~4N. T. 35 ~N.T.36 ~6N.T.38 and 42 ~TN.T. 39 ~SN. T. 38 ~gN.T. 38 NO. 98-04 13 CRIMINAL TERM Defendant's condition was due to severe intoxication rather than a closed head injury.2° The next day Trooper Lander again interviewed the Defendant regarding the alleged carjacking.2~ The Defendant apologized for his actions the night before, indicating that he was highly intoxicated and admitting that he had a drinking problem.~ The Defendant also confirmed that he had, in fact, been driving in Cumberland County DISCUSSION Motion In Arrest of Judqment Defendant contends that there was insufficient evidence presented at trial to prove that he was intoxicated at the time he operated the car. He further contends that there was not sufficient evidence to prove that his blood alcohol content was above .10% at the time of driving. These contentions are based upon the Commonwealth's failure to provide any testimony to relate the results of the blood test back to the time of driving. Therefore, he has asked us to arrest judgment. The Commonwealth has conceded that there was not sufficient ~°N.T. 37-38 2~N.T. 23-24 2~N.T.24 23N.T.27 , NO. 98-04 13 CRIMINAL TERM evidence to establish that the Defendant's blood alcohol content was above a .10% at the time of driving. Therefore, it agrees that a guilty verdict cannot be sustained in connection with a violation of 75 Pa.C.S.A. § 1731(a)(4). However, it argues that there was more than enough evidence presented at trial to sustain the conviction under 75 Pa.C.S.A. § 3731(a)(1). For the reasons set forth below, we agree. In evaluating a challenge to the sufficiency of the evidence we must determine... "whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found each and every element of the crime charged was established beyond a reasonable doubt." Com. v. Montini, 712, A.2d 761, 767 (Pa. Super. 1998). In the instant case, the evidence presented at trial left no doubt that the Defendant was under the influence of alcohol and incapable of safe driving at the time he operated the vehicle on the Cleversburg Road in Cumberland County. His own drinking buddy, who was obviously sympathetic to him, testified that the Defendant was drinking too much to be able to drive safely. After an argument the Defendant eventually gave up the wheel and allowed one of the passengers to drive.24 Shortly thereafter, he jumped out of the moving vehicle, sustaining injuries for which he was later treated at the Carlisle Hospital. As the witness NO. 98-0413 CRIMINAL TERM stated "he was pretty drunk.''2s Obviously! The information filed at Count I charged that the Defendant did "drive, operate or was in actual physical control of the movement of a vehicle upon a highway or traffic way within this Commonwealth (1) while under the influence of alcohol to a degree which rendered said person incapable of safe driving; and/or (4) while the amount of the alcohol by weight in the blood of said person was 0.10 percent or greater".26 In announcing our verdict, we found the Defendant "guilty of Count I, Driving Under the Influence...".~7 Since the Defendant was charged with violating Section 3731 (a) (1) and/or (4), and since the evidence is clearly sufficient to sustain the conviction for violation of Section 3731(a)(1), the motion in arrest of judgment must be denied. Motion For A New Trial The Defendant has also requested a new trial based upon two evidentiary rulings which he alleges were erroneous. In the first instance, he contends that we erred in allowing Dr. Franko to testify as to the conversion of the serum levels of alcohol obtained for medical purposes to whole blood levels necessary for ~SN.T.20 ~6See information citing 75 Pa.C.S.A. § 3731 (a)(1)(4). ~VOrder of Court dated September 1, 1998. NO. 98-04 13 CRIMINAL TERM legal purposes. The objection was based upon Dr. Franko not having been properly qualified to make those conversions. While 28 we are satisfied that the testimony was properly allowed, even if it were error, it would have been harmless error. The evidence that Defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving was overwhelming without considering his blood alcohol level. The Defendant also argues that we violated the corpus delicti rule in allowing the officer to testify that the Defendant admitted to driving the vehicle in Cumberland County. Without this admission by the Defendant, the Commonwealth was unable to prove that he operated the vehicle in this county on the night in question. Therefore, the prosecution would have had to have been dismissed for lack of jurisdiction.29 28Dr. Franko is a medical doctor with extensive experience dealing with intoxicated persons in the emergency room. He also holds a Ph.D. in microbiology immunology. Calculations such as converting serum alcohol levels to whole blood alcohol levels are "fairly straight forward and simplistic." (N.T.40). Whether to allow expert testimony on a particular matter is within the sound discretion of the trial court. Com. v. Bardo, 551 Pa. 140, 709 A.2d 871 (1998). Furthermore, the standard on qualifications is very liberal. If the witness has any "reasonable pretension" to specialized knowledge on the subject, he may testify. Kuisis v. Baldwin-Lima Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974). The weight to be given such testimony is up to the fact finder. Id. 29A court has no jurisdiction unless the act charged occurred in the county in which the defendant is tried. Com. v. Winter, 324 Pa. Super. 258, 471 A.2d 827 (1984), Com. v. Mull, 316 Pa. 424, 175 A. 418 (1934). NO. 98-0413 CRIMINAL TERM In the case of Com. v. Appel, 547 Pa. 171, 689 A.2d 891 (1995) our Supreme Court succinctly stated the corpus delicti rule as follows: It has long been our rule that an extrajudicial admission or confession of an accused cannot be admitted until the corpus delicti for a crime has been first established by independent proof. (citation omitted) Further, the corpus delicti rule requires that independent evidence establish the commission of the crime. 689 A.2d at 909. The policy underlying the rule is to prevent the admission of a confession where no crime has been committed. See Com. v. Bardo, 551 Pa. 140, 709 A.2d 871, (Pa. 1998). In the instant case, there was independent evidence to prove that the Defendant had committed the crime of driving under the influence.3° Defendant's admission was not necessary to prove that a crime had been committed.3~ It was necessary to prove only the county in which it had been committed. Under these circumstances we are satisfied that there was no violation of either the spirit or the letter of the corpus delicti rule. For the reasons set forth above, we must also deny ~°The testimony of Jerry Ott clearly established that the Defendant operated a motor vehicle on the highways of this Commonwealth at a time when he was under the influence of alcohol to a degree that rendered him incapable of safe driving. ~It is clear that "the corpus delicti of a crime is subsumed within the elements" of the crime. Com. v. Stasiak, 305 Pa. 257, 451A.2d 520, 523 (1982). The elements of driving under the influence include driving a vehicle in this Commonwealth, not in a particular county. Those elements were proven independent of Defendant's admission. NO. 98-0413 CRIMINAL TERM Defendant's Motion for a New Trial. Therefore we will enter the order that follows. ORDER AND NOW, this 2ND day of FEBRUARY, 1999, Defendant's Post Trial Motions in the nature of a Motion in Arrest of Judgment and a Motion for a New Trial are DENIED. By the Court, William I. Gabig, Esquire For the Commonwealth Timothy L. Clawges, Esquire For the Defendant :sld /s/ Edward E. Guido Edward E. Guido, J. 10