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HomeMy WebLinkAbout00-0469 criminal_2COMMONWEALTH VS. ISAAC M. COLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-0469 CRIMINAL IN RE: OPINION PURSUANT TO RULE 1925 On September 8, 2000, follOwing trial by jury, the defendant, Isaac M. Cole, was found guilty of driving under the influence, aggravated assault by vehicle while driving under the influence, leaving the scene of an accident involving death or personal injury, and being involved in an accident involving death or personal injury while not properly licensed. The charges arose out of events which occurred shortly before midnight on January 30, 2000. Police were dispatched to a pedestrian hit and run on Springville Road, South Middleton Township, Cumberland County. Richard Nickel had been using a snow blower in front of his residence. He was struck by a vehicle which then left the scene. Sometime after midnight, members of the state police located the defendant' s vehicle. The registration plate of the car had been removed. A hole in the driver's side portion of the windshield had been covered with a piece of snow and ice to conceal the hole. There appeared to be blood and hair in the windshield. What then ensued, we described in our earlier opinion on a motion to suppress evidence as follows. The state troopers proceeded to knock on doors of apartments close to the car in an attempt to discover the owner. The defendant's apartment was located approximately 300 feet behind the vehicle, a white Ford. At approximately 1:00 a.m., the state police confronted the defendant who denied ownership of the vehicle and claimed that he had not driven the car because he had a suspended license. The defendant was then asked to put clothes on and come 00-0469 CRIMINAL outside to the car. In the parking lot, the police noticed that the defendant was swaying back and forth, smelled of an alcoholic beverage, had red and glassy eyes and otherwise appeared to be drunk. While in the parking lot the defendant became very loud and belligerent and began yelling obscenities. The defendant was then taken into custody and arrested for disorderly conduct. In the course of subduing the defendant, the trooper discovered car keys on the ground. -i'Lcy tu,',~c,~ ottr '~o be kcys to d'~c '~vhi~c Ford Tcmpo. Ti~e arresz o£ tl~e de£endant took place at approximately 1'15 a.m. The defendant refused a request by the police that he consent to a blood alcohol test. Trooper Carbaugh of the Pennsylvania State Police then contacted Chief Deputy District Attorney Jonathan B irbeck in connection with obtaining several search warrants, one for the purpose of obtaining a sample of the defendant's blood. The defendant was transported to the Carlisle Hospital where blood was drawn at 5:20 a.m. The blood test results were. 101. The defendant was read his Miranda rights at 5:40 a.m. He was returned to the police barracks and taken to an interview room. The defendant continued to deny involvement in the accident. The defendant was later confronted with inconsistencies in his own version. He was reread his Miranda rights and signed a waiver and a confession at 7:11 a.m. On October 24, 2000, the defendant was sentenced to terms in a state correctional institution in an aggregate of thirty-three months to seven years. It is from this sentence which the defendant appeals. He raises three issues in a statement of matters complained of on appeal. His first contention is that the suppression court erred in finding that the six-hour rule was not violated and in determining that the confession was given voluntarily and/or not obtained unconstitutionally. This matter was disposed of in our findings and order of August 00-0469 CRIMINAL 21, 2000. There we expressed the view that the defendant' s waiver of his Miranda rights was voluntary, knowing and intelligent. In addition, assuming that a six-hour period had been triggered, because the statement was obtained within that time period, it was admissible. In Com. v. Duncan, 514 Pa. 395,525 A.2d 1177 (1987), the Supreme Court made it clear that in establishing the six-hour rule in Com. v. Davenport, 471 Pa. 278,370 A.2d 301 (1977), the court did not abandon the requirement ti~at the incriminating evidence sought to be suppressed must be reasonably related to an unnecessary delay between arrest and arraignment. It concluded that only statements obtained after the six-hour period has run should be suppressed on the basis of Davenport. Duncan, supra, 525 A.2d at 1182. In this case, the statements of Mr. Cole were obtained within the six-hour period. The defendant next complains that we erred in reopening the hearing on the motion to suppress evidence in this case. It is true that we held a second suppression hearing in this matter. At the initial hearing in this matter, the Commonwealth chose to proceed without the testimony of Troopers Housel and Hassinger. These were the officers who were present and had firsthand knowledge of the defendant's decision to change his mind and make a statement. Following the initial hearing, on June 28, 2000, this court entered an order finding that the Commonwealth could not "meet its burden of proof with respect to the voluntariness of the defendant' s statement without testimony from the trooper(s) who were present when the defendant allegedly changed his mind concerning the giving of a statement." The order went on to schedule a further hearing. The clear meaning of our order was that the court was unable to reach a determination of the suppression matter based on the then present state of the record. We have been presented with no appellate authority as to the appropriate action of the trial court in that situation. 00-0469 CRIMINAL Nonetheless, we are satisfied that such matters are in our sound discretion. In other words, while we may have been within rights to suppress the evidence after the first hearing based on a lack of evidence, we do not believe that such a result was required. We acknowledge that the trial court is not at liberty to redetermine a suppression matter, following an initial ruling, based upon the same evidence. See Commonwealth v. Branch, 292 Pa. Super. 425,437 A.2d 748 (1981). We also mindful of the principle that absent the introduction of new evidence that was unavailable before the suppression hearing, a pretrial ruling may not be reversed at trial. See Commonwealth v. Metzer, 430 Pa. Super. 217, 634 A.2d 228 (1993). In this case, we simply determined that the record was inadequate to make a finding for one side or the other. We are satisfied that it was not an abuse of discretion to allow the record to be supplemented. Finally, the defendant complains that we erred by permitting members of the state police to give testimony concerning the point of impact of the pedestrian accident in this case. Typical of the testimony complained of was that of State Police Corporal Kenneth Hassinger: A I would have to look at the notes. That says 48 feet. If you again walk back up to the scene, and if you turn and you look in the direction, visible in the snow were tire marks coming, straddling the center line, and they noticeably come across where you can see where a tire would have -- I call it applying the brakes, where he kicked up the snow into the macadam, right to where we located the physical evidence, and where the snowblower left the roadway and flew through the air to it's [sic] first impact. Q Where would the tire tracks have been in relation to where the mailbox was? 00-0469 CRIMINAL A They came right-- they were actually several feet-- they were right by it. If the mailbox -- I'm assuming the mailbox is right here. They were right here. Actually he comes -- you can see the tire marks here, and you can see a noticeable shift from this lane of travel, or the center lane, into this lane, and it almost looks like he's coming right here at impact. The snowblower goes, and the car continues. Down here we weren't able to determine the tire tracks because at that point EMS had trampled through the scene. They had not been up here when we arrived. Q You said you found some debris in that area. Commonwealth Exhibit Number 14 for identification. Hold that up, and show the jury what that is, please. A It's a front light casing from a vehicle. In addition, there are additional casings, and this looks like it appears from the front end bumper. Now, aside from this debris, there were paint transfers or chips -- actual shavings from the vehicle, white in color, that were probably about three to four inches long, not all of them. They would come in different sizes, but three to four inches long, and when you shined your flashlight walking back the roadway with the tire marks at the point of impact, it lit up in the flashlight. So we were able to even find white chips in the snow. It like reflected off. So based upon the physical evidence with the snowblower, the mark on the roadway, the tire marks that were visible, the hat, everything, we were able to determine the point of impact would be right around that mailbox. MR. ROMINGER: Your Honor, I'm going to object to him rendering an opinion as to where the point of impact is insomuch as he's not been qualified as a traffic reconstruction expert. 00-0469 CRIMINAL THE COURT: Overruled. I'll permit him to testify. BY MR. BIRBECK: Q You were saying? A I said based upon the hundreds of accidents I investigated, to me I was able, based upon the physical evidence, to clearly see that the point of impact was near that or right beside the mailbox at the residence. N.T. at pp. 11-13. We see no difference between this testimony and the type of testimony offered in McKee by McKee v. Evans, 380 Pa. Super. 120, 551 A.2d 260 (1988). In that case, the court made it clear that an investigating police officer who does not witness an accident may not render an opinion at trial as to the cause unless he or she has been qualified as an expert. By the same token, the court made it clear that testimony by a police officer regarding point of impact is properly admissible as a lay opinion. In the case sub judice, police witnesses did not offer an opinion concerning the cause of the accident. Rather, they were permitted to give their opinion concerning the point of impact based on an abundance of physical evidence. We are satisfied that permitting these opinions to be shared with the jury was not error. December g~' ,2000 Jonathan B irbeck, Esquire Chief Deputy District Attorney Karl Rominger, Esquire For the Defendant .es ZZ