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HomeMy WebLinkAboutCP-21-CR-2880-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : WILLIAM J. SEIBERT : CP-21-CR-2880-2006 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., August 28, 2007:-- On July 19, 2007, defendant, William J. Seibert, was convicted at a bench trial of driving under the influence, general impairment, in violation of the Vehicle Code at 75 1 Pa.C.S. Section 3802(a)(2), and driving under suspension in violation of 75 Pa.C.S. 2 Section 1543(a). On August 7, 2007, defendant was sentenced for driving under the influence to pay the costs of prosecution, a $300 fine, and undergo a period of probation for six months. On the charge of driving under suspension, he was sentenced to pay the costs of prosecution, a $1,000 fine, and undergo imprisonment in 3 the Cumberland County Prison for not less than thirty days or more than six months. Defendant filed a direct appeal from his judgments of sentence to the Superior Court of __________ 1 Section 3802(a)(2) provides: 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 alcohol concentration in the individual’s blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 2 This was defendant’s ninth conviction for driving under suspension. 3 This was a mandatory minimum sentence under 75 Pa.C.S. § 6503(a.1). CP-21-CR-2880-2006 Pennsylvania. In a concise statement of matters complained of on appeal, he raises one issue: The evidence presented by the Commonwealth, together with the uncontradicted evidence of the Defense, was insufficient to prove beyond a reasonable doubt that Defendant was guilty of Driving Under the Influence of Alcohol and Driving Under Suspension, when no one witnessed the Defendant operating a motor vehicle at the relevant date and time. The evidence in a light most favorable to the Commonwealth is as follows. On September 13, 2006, at 2:07 a.m., Robert Powers, an Upper Allen Township Police Officer, passed a blue Honda on Geneva Drive in Upper Allen Township, Cumberland County. The officer saw in his rearview mirror that the registration plate light on the Honda was not lit. He turned around and increased his speed to catch up with the Honda. The vehicle was going well in excess of the posted 35 miles per hour speed limit on the windy road. The vehicle turned left into a development without a turn signal on. Officer Powers was five to ten seconds behind the Honda when he saw it parked in front of an apartment. The officer saw a man walking away from the Honda toward the apartment which was fifteen to twenty feet from the vehicle. No one else was there. The man was almost to the front door when the officer got out of his patrol vehicle. He told the man, who is defendant, about the license plate light being out. Defendant said he knew the light was out. Officer Powers asked defendant why he was going so fast. Defendant said he did not think he was driving fast. Defendant told the officer that he did not have his driver’s license. The officer smelled an odor of alcohol from defendant’s breath. Defendant’s eyes were bloodshot. The officer asked defendant -2- CP-21-CR-2880-2006 how much he had to drink. Defendant said he had a few beers but was not drunk. The officer told him that he could smell alcohol. Defendant said he had stopped drinking about an hour before after having four to five beers. Officer Powers asked defendant if he would submit to some field sobriety tests. Defendant said he would. Defendant did poorly on a walk and turn test. At 2:15 a.m., the officer arrested defendant for driving under the influence. He placed him in his patrol car and read him Implied Consent Warnings. Defendant agreed to take a test. He was taken to the Carlisle Hospital where blood was withdrawn at 3:03 a.m. The result was 0.09 percent alcohol concentration. Defendant’s driver’s license was suspended when he was driving on 4 September 13, 2006. Defendant was taken to a booking center. Defendant told the booking officer, Rodney Gsell, that he was driving on Geneva Drive, and had started driving in Shiremanstown at approximately 2:00 a.m.; he drank five sixteen ounce Miller 5 Genuine drafts; and he stopped drinking about one hour before he was caught. The test for determining the sufficiency of the evidence is, viewing the evidence in a light most favorable to the verdict winner, whether the fact-finder reasonably could __________ 4 The suspension was until October 25, 2007. 5 Defendant did not testify. Alicia Shelly testified for defendant that she lives with him and their two children. On the night in question, she was drinking with defendant at a friend’s house in Middletown. The friend’s name was Frank but she did not know his last name or address. Defendant had more to drink than she had. She was driving the Honda home when Officer Powers saw the vehicle. She sped up and drove to their apartment. She parked the Honda and told defendant that he should talk to the officer. She ran into the apartment and locked the door. She had three to four beers that evening and did not want to talk to the officer and get a DUI. She picked defendant up from the booking center at about 4:00 a.m. She never told anyone before she testified -3- CP-21-CR-2880-2006 have concluded that all of the elements of the crime were established beyond a Commonwealth v. Chambers, reasonable doubt. See 528 Pa. 558 (1991). A fact- Commonwealth finder can believe all of, part of, or none of a witness’s testimony. See v. Phillips, 269 Pa. Super. 537 (1979). In the present case, there was evidence that Officer Powers followed the Honda and saw it turn off of Geneva Drive into a development; he was five to ten seconds behind the Honda when he saw it parked in front of an apartment; the only person there was defendant who was walking away from the Honda toward the apartment which was fifteen to twenty feet from the vehicle; when the officer asked defendant why he was going so fast, defendant said that he did not think he was driving fast; after the officer discovered that defendant had been drinking, defendant performed a walk and turn test; defendant told the officer that he had been drinking; defendant’s blood was drawn within two hours of the operation of the Honda; the blood had an alcohol concentration of 0.09 percent; at a booking center, defendant told the booking officer that he was driving on Geneva Drive, had started driving in Shiremanstown at approximately 2:00 a.m., that he had drank five sixteen ounce Miller drafts and had stopped drinking about one hour before he was caught; defendant’s operating privilege was suspended. This evidence was sufficient to prove beyond a reasonable doubt that defendant was operating the Honda while his operating privilege was suspended, and, within two hours of driving, his blood alcohol content was 0.09 percent. That was sufficient evidence to prove beyond a reasonable doubt that he that she had been driving that night. -4- CP-21-CR-2880-2006 violated Sections 3802(a)(2) and 1543(a) of the Vehicle Code. (Date) Edgar B. Bayley, J. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Stephen O. Fugett, Esquire For Defendant :sal -5-