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HomeMy WebLinkAboutCP-21-CR-1901-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : NO. CP-21-CR-1901-2006 : : CHARGE: 1. AGGRAVATED ASSAULT BY : VEHICLE WHILE DRIVING : UNDER THE INFLUENCE; : 2. RECKLESSLY : ENDANGERING ANOTHER : PERSON : 3. DUI – GENERAL : IMPAIRMENT WITH : ACCIDENT : 4. DUI – HIGH RATE : 5. RECKLESS DRIVING : (SUMMARY) DANIEL J. SCHMOHL : OTN: L285557-6 : AFFIANT: TPR. BRYAN HENNEMAN IN RE: POST-SENTENCE MOTION ORDER OF COURT th AND NOW , this 14 day of January, 2008, in consideration of the Defendant’s Post-Sentence Motion, and for the reasons stated in the accompanying opinion, IT IS HEREBY ORDERED AND DIRECTED that the Post-Sentence Motion DENIED of Daniel J. Schmohl is . BY THE COURT, M.L. Ebert, Jr. J. Christylee Peck, Esquire Senior Assistant District Attorney Michael O. Palermo, Esquire Attorney for the Defendant 155 South Hanover Street Carlisle, PA 17013 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : NO. CP-21-CR-1901-2006 : : CHARGE: 1. AGGRAVATED ASSAULT BY : VEHICLE WHILE DRIVING : UNDER THE INFLUENCE; : 2. RECKLESSLY : ENDANGERING ANOTHER : PERSON : 3. DUI – GENERAL : IMPAIRMENT WITH : ACCIDENT : 4. DUI – HIGH RATE : 5. RECKLESS DRIVING : (SUMMARY) DANIEL J. SCHMOHL : OTN: L285557-6 : AFFIANT: TPR. BRYAN HENNEMAN IN RE: POST SENTENCE MOTION BEFORE EBERT, J. OPINION and ORDER OF COURT Ebert, J., January 14, 2008 — In this criminal case, Defendant Daniel J. Schmohl filed a Post-Sentence Motion on September 14, 2007. Defendant avers that there was insufficient evidence presented by the Commonwealth and that the doctrine of merger should apply to the substantive charges. For the reasons stated in this opinion, Defendant’s Post-Sentence Motion is denied. STATEMENT OF THE FACTS The charges against Daniel J. Schmohl stem from a very serious motor vehicle accident that occurred on March 30, 2006, in Mt. Holly Springs, Cumberland County, - 2 - Pennsylvania. On June 7, 2007, Defendant filed a Writ of Habeas Corpus. On June 21, 2007 a hearing on this motion was heard before the Honorable President Judge Edgar B. Bayley. Subsequently, on June 22, 2007 the writ was denied. On June 28, 2007, a jury convicted the Defendant of 1) Aggravated Assault by 12 Vehicle While Driving under the Influence, 2) Recklessly Endangering another Person, 3 3) Driving under the Influence – General Impairment with Accident, 4) Driving under 45 the Influence – High Rate of Alcohol, and 5) Reckless Driving. On September 4, 2007, Defendant was sentenced. The Court did merge the charge of Count 3 – Driving under the Influence – General Impairment with Accident into the Charge of Count 1 – Aggravated Assault by Vehicle While Driving under the Influence. However, given the fact that the jury made a specific finding at Count 4 that the Defendant had driven a vehicle while having a high rate of alcohol in excess of .10% to .16%, the Court did not merge this count into the Aggravated Assault by Vehicle while Driving under the Influence. The Defendant’s aggregated sentence on all charges was twelve (12) to twenty-four (24) months in prison. Defendant now claims that: 1)There was insufficient evidence presented to prove every element of Aggravated Assault by Vehicle while Driving under the Influence, Recklessly Endangering Another Person, and Reckless Driving; specifically in that the Commonwealth failed to present sufficient evidence to prove each element of the crimes. 1 75 Pa.C.S. §3735.1 2 18 Pa.C.S. §2705 3 75 Pa.C.S. §3802(a)(1) 4 75 Pa.C.S. §3802(b) 5 75 Pa.C.S. §3736(a) - 3 - 2)The court erred in the September 4, 2007 sentencing, and therefore resentencing should be conducted to merge Charge 1 (Aggravated Assault by Vehicle While Driving under the Influence) and Charge 4 (Driving under the Influence – High Rate of Alcohol). See Defendant’s Post-Sentence Motion 9/14/2007. DISCUSSION A. Sufficiency of the Evidence In the first claim, the Defendant maintains that the evidence at trial was insufficient to prove each element of the crime of Aggravated Assault by Vehicle while Driving under the Influence, Recklessly Endangering Another Person, and Reckless Driving beyond a reasonable doubt. The Defendant claims that the Court erred in finding that the case was proven beyond a reasonable doubt. Under §3735.1 of the Pennsylvania Crimes Code, a person commits the offense of Aggravated Assault by Vehicle while Driving under the Influence when, “a person negligently causes serious bodily injury to another person as the result of a violation of section 3802 (relating to driving under influence of alcohol,)….” 75 Pa.C.S.A. §3735.1(a). Serious bodily injury is defined as “any bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” 75 Pa.C.S.A. §3735.1(b). A person acts negligently when he should know of a substantial and unjustifiable risk that his conduct will cause serious bodily injury. The risk must be of such a nature and degree that the defendant’s failure to perceive it, considering the nature and intent of defendant’s conduct and the circumstances known to him involves a - 4 - gross deviation from the standard of care that a reasonable person would observe in the defendant’s situation. 18 Pa.C.S.A. § 302(b)(4). Under §2705 of the Pennsylvania Crimes Code, a person commits the offense of Recklessly Endangering Another Person when he “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S.A. §2705. As to recklessly endangering another person, a person acts recklessly in endangering another person with respect to serious bodily injury if he consciously disregards a substantial and unjustifiable risk that serious bodily injury will result from his conduct. The risk must be of such a nature and degree that considering the nature and intent of defendant’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in defendant’s situation. 18 Pa.C.S.A. § 302(b)(3). Finally, under §3736(a) of the Pennsylvania Crimes Code, a person commits the offense of Reckless Driving when “any person drives any vehicle in willful or wanton disregard for the safety of persons or property,…” 75 Pa.C.S.A. §3736(a). Willful or wanton disregard for the safety of persons or property is synonymous with a conscious disregard for the safety of persons or property. See Commonwealth v. Bullick, 830 A.2d 998 (Pa. Super. 2003). On a challenge to the sufficiency of the evidence in a criminal case, the evidence is to be viewed “in the light most favorable to the Commonwealth” and “all reasonable inferences in the Commonwealth’s favor” are to be entertained. Commonwealth v. Jones, 499 Pa. Super. 58, 60, 672 A.2d 1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 475 A.2d 1286, 1288 (1984). Additionally, the trier of fact is - 5 - “free to believe all, part or none of the evidence” Commonwealth v. Griscavage, 512 Pa. 540, 542, 517 A.2d 1256, 1257 (1986). The evidence presented in this case established (1) Defendant was driving under the influence in excess of 0.10%, (2) that the victim Cromer sustained serious bodily injuries that nearly resulted in death, (3) that the Defendant acted both negligently and recklessly when he drove his car under the influence of a high rate of alcohol, struck the victim Cromer along the side of the road without perceiving the risk of striking him, and placed the victim’s walking companions and other motorists in danger of being struck. Viewing this evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences from such evidence, it is clear that each and every element of the crimes of Aggravated Assault by Vehicle while Driving under the Influence, Recklessly Endangering Another Person, and Reckless Driving have been proven beyond a reasonable doubt. B. Merger of Offenses In the second claim Defendant claims that Charge 1 (Aggravated Assault by Vehicle While Driving under the Influence) and Charge 4 (Driving under the Influence – High Rate of Alcohol) should be merged. It is well established, that in order for offenses to merge, one offense must be a “lesser included offense” of the other, i.e. the elements of the lesser offense must be identical to and capable of being wholly subsumed within the elements of the greater offense, and the factual predicate for the lesser included offense must also be part of the factual predicate required to establish the greater offense. See Commonwealth v. Weakland, 555 A.2d 1228 (Pa. 1989). - 6 - We find that the doctrine of merger does not apply to the present charges of Aggravated Assault by Vehicle While Driving under the Influence and Driving under the Influence – High Rate of Alcohol under the facts presented in this case. The elements of the lesser offense of Driving under the Influence – High Rate of Alcohol are not capable of being wholly subsumed within the elements of the greater offense of Aggravated Assault by Vehicle While Driving Under the Influence. In Aggravated Assault While Driving Under the Influence, the government must prove negligence, serious bodily injury and driving under the influence. Thus this charge could be proven by a showing that the Defendant had a blood alcohol less than 0.10%. The charge of Driving Under the Influence- High Rate requires the Commonwealth to prove that the Defendant was driving after drinking a sufficient amount of alcohol, such that the person’s BAC level reaches the statutorily prohibited range in excess of 0.10% within two hours after driving. Therefore, it is apparent that the Driving Under the Influence-High Rate charge is not identical to or subsumed by the Aggravated Assault while Driving Under the Influence charge since there is a burden to prove the additional requirement of Defendant’s blood alcohol level. CONCLUSION Having considered the arguments and evidence presented by both parties, this Court finds that the Defendant’s contention is without merit. Defendant’s post sentence motion will be denied. Accordingly, the following order will be entered: - 7 - ORDER OF COURT th AND NOW , this 14 day of January, 2008, in consideration of the Defendant’s Post-Sentence Motion, and for the reasons stated in the accompanying opinion, IT IS HEREBY ORDERED AND DIRECTED that the Post Sentence Motion DENIED. of Daniel J. Schmohl is BY THE COURT, M.L. Ebert, Jr. J. Christylee Peck, Esquire Senior Assistant District Attorney Michael O. Palermo, Esquire Attorney for the Defendant 155 South Hanover Street Carlisle, PA 17013 - 8 -