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HomeMy WebLinkAboutCP-21-CR-0641-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0641-2006 : : SHAWN MICHAEL WALKER : IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant, Shawn Michael Walker, was found guilty of driving under the influence – high rate of alcohol. On January 23, 2007, we imposed a sentence of thirty days to six months in the Cumberland County Prison but permitted the defendant to remain at liberty pending the filing of post-trial motions. Post-trial motions were, in fact, filed. The defendant’s post-trial motions were denied and this appeal followed. In his statement of matters complained of on appeal, the defendant asserts that the evidence was insufficient to establish a conviction for the offense charged, a violation of 75 Pa.C.S.A. 3802(b). Specifically, the defendant contends that the Commonwealth failed to present any evidence as to the time of the accident and failed to produce sufficient evidence to prove beyond a reasonable doubt that the defendant’s blood alcohol was between .10 and .16 within two hours of driving. Taken in a light most favorable to the Commonwealth, the facts are as follows. Early in the morning on December 4, 2005, Mr. Walker, while on the way to pick up his girlfriend, Kayla Joseph, had an accident involving a utility pole. N.T. at 4. Road conditions were bad and the streets were covered with snow; numerous vehicle accidents had been reported in Hampden Township that evening. N.T. at 7. Mr. Walker telephoned in his own accident. The police officer, Patrolman Shawn Fullerton, received the dispatch call for this particular accident sometime after 2:00 a.m. but before 2:30 a.m. N.T. at 5. This accident was third on Officer CP-21-CR-0641-2006 Fullerton’s list of dispatch calls that morning. N.T. at 11. The Commonwealth offered no testimony as to the time at which the dispatch center received a report of the accidents. Officer Fullerton arrived at the accident scene around 2:30 a.m. N.T. at 5. He testified that the defendant’s van was completely disabled because the front end was “folded around the utility pole.” N.T. at 5. Noticing various indicia of intoxication, Officer Fullerton asked Mr. Walker to submit to a preliminary breath test. He consented and, based on the indicia of intoxication and the preliminary breath test, Officer Fullerton formed the opinion that Mr. Walker was not capable of safe driving. N.T. at 6-7. The defendant was placed under arrest at 2:45 a.m. N.T. at 8. On arriving at the booking center, the booking agent began Mr. Walker’s twenty-minute observation period at 3:23 a.m. N.T. at 13. During that time, Mr. Walker indicated that he had not imbibed alcohol anytime after the accident. N.T. at 14, 17. Breath tests were conducted commencing at 3:50 a.m. The breath test revealed a blood alcohol content (BAC) of .112. N.T. at 16. Mr. Walker was released to Ms. Joseph sometime after 4:00 a.m. The Commonwealth must prove beyond a reasonable doubt that the defendant was in control of a moving vehicle after imbibing enough alcohol to attain a BAC between .10% and .16% “within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.” 75 Pa.C.S. § 3802(b) (emphasis added). Moreover, the Commonwealth may use circumstantial evidence to prove its case beyond a reasonable doubt. Com. v. Griscavage, 517 A.2d 1256, 1257 (Pa.Super. 1986). In support of the defendant’s contention that his conviction ought to be set aside, the defendant cites the case of Com. v. Segida, 912 A.2d 841 (Pa.Super. 2006). 2 CP-21-CR-0641-2006 In Segida, the police received a 12:20 a.m. dispatch to investigate a one-vehicle accident. After questioning the defendant at the scene, he was taken into custody. A blood sample was eventually taken and subsequent testing revealed a BAC of .36%. There was no testimony in the Segida case concerning the time at which the defendant’s blood was drawn. The Superior Court indicated that the failure to establish the time that the blood was drawn was “but one part of the equation.” The court went on to observe: The state offered absolutely no evidence as to when Appellant drank alcohol, including whether he drank after the accident in question. Additionally, the Commonwealth presented no evidence from which it could be inferred what time the accident occurred. There were no witnesses to the accident or to the manner in which the car was operated. Rather, here, the state offered only (a) the time the officer received the call from dispatch about the accident and (b) the time that the officer arrived on the scene. It did not indicate when dispatch received the call about the accident, the name of the person who called dispatch, whether the person who called dispatch actually saw the accident or only came upon it some time later, or what time the caller first saw the accident. The officer testified that he did not know, when he arrived at the scene, how long Appellant’s car had actually been located at the scene of the accident. And he acknowledged that he never asked Appellant if he had been at the scene the entire time since the accident occurred. Id. at 846. In this case, we overruled the defendant’s post-trial motion because we found noteworthy factual differences between this case and Segida. Importantly, in this case, the Commonwealth offered testimony concerning the time at which the breath test had been taken. There was also testimony that the defendant did not drink after the accident. In addition, the defendant, in this 3 CP-21-CR-0641-2006 case, called in his own accident. Admittedly, our verdict in this case rested on the assumptions that the defendant would have called in the accident within minutes of its having occurred and 1 that a dispatch would have followed immediately after his call. August 7, 2007 ____________________________ Kevin A. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney Linda Hollinger, Esquire Assistant Public Defender :rlm 1 If those assumptions were improper, then the verdict, we agree, cannot stand. 4