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HomeMy WebLinkAbout99-0220 CriminalCOMMONWEALTH Vo JOHN W. ALBRIGHT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DRIVING UNDER THE INFLUENCE NO. 99-0220 CRIMINAL TERM IN RE: OPINION OF COURT PURSUANT TO PA. R.A.P. 1925 OLER, J., February 1,2001. In this criminal case, Defendant has appealed to the Pennsylvania Superior Court from a judgment of sentence following a trial in which he was found guilty by a jury of driving under the influence of alcohol at a time when his blood alcohol level was .10 percent or greater,l The judgment of sentence incorporated the mandatory minimum sentence applicable to a third offense: AND NOW, this 24th day of October, 2000, the Defendant, John W. Albright, now appearing in court with his privately retained counsel, John Moran, II, Esquire, and having previously been found guilty following a jury trial ... of Driving under the Influence of alcohol while his blood alcohol content was .10 percent or greater in violation of Section 3731(a)(4) of the Vehicle Code, and the Court being in receipt of a pre-sentence investigation report, upon which it relies, the sentence of the Court is that the Defendant pay the costs of prosecution, a fine of $300.00, a $200.00 CAT fund surcharge, and a $10.00 Emergency Medical Services fund assessment, and that he undergo imprisonment in the Cumberland County Prison for a period of not less than 90 days nor more than 23 months. The basis for Defendant's appeal to the Superior Court is that "[t]he trial court erred in allowing testimony regarding an alleged confession of the Defendant to be introduced without first establishing the corpus delicti of the ~ Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 3731(a)(4)(i) (2000 Supp.). Defendant was acquitted of driving under the influence of alcohol to a degree which rendered him incapable of safe driving. See id. § 3731 (a)(1). crime.''2 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925 (a). STATEMENT OF FACTS This case arises out of a motorcycle accident in South Middleton Township, Cumberland County, Pennsylvania, on the evening of Saturday, September 26, 1998. As a result of the incident, Defendant was charged with driving under the influence of alcohol.3 A critical issue in the case was whether Defendant had been operating his motorcycle on a public road at the time of the accident At trial, the jury was advised of a stipulation of counsel of a BAC test result of.27% following Defendant's arrest.4 The Commonwealth commenced its case- in-chief with the testimony of a resident of 621 Whiskey Springs Road in South Middleton Township, and a Pennsylvania State Trooper. The substance of this initial testimony was that at 8:30 p.m. on the date in question, as the result ora 911 call from the resident,5 the trooper, Kirk Perkins, was dispatched to Whiskey Springs Road, where he found fire police, a fire truck, an ambulance, a motorcycle sitting with its front tire in a culvert, and people at the edge of the road scanning the adjacent woods with flashlights.6 The operator of the motorcycle had not been located, and the trooper joined the search for him.? A glint of reflected light in the woods from a jacket buckle led to the trooper's discovery of Defendant, who had been injured.8 Defendant 2 Defendant's Statement of Matters Complained of on Appeal, filed December 15, 2000. 3 Defendant was also charged with the summary offenses of Unauthorized Transfer or Use of Registration and Required Financial Responsibility. He xvas found guilty by the court on these charges at an earlier trial, at which the jury was deadlocked with respect to the driving under the influence charge. See Order of Court, July 20, 1999. 4 The jury was advised of this stipulation during opening statements of counsel. See Notes of Testimony 32, Trial, September 5-6, 2000 (hereinafter N.T. __). 5 N.T. 12-17. 6 N.T. 20-21. 7 N.T. 22. s N.T. 22-23. 2 identified himself, stated that he had been operating the motorcycle and walked in a "very gingerly" manner out of the woods.9 Defendant emitted a strong odor of an intoxicating beverage.~° He was unable to provide a driver's license, a registration card or insurance information. Medical personnel transported Defendant from the scene for treatment. 12 With respect to the circumstances of the accident, the trooper testified as follows: Q Did you ... look at the scene of the roadway or berm of the road~vay around where this happened? A Yes, ! did. Q And can you tell us ~vhat you observed? A Because I was the responding trooper, it was my responsibility to perform the accident investigation. One of the things, when we find a vehicle that's not on the roadway, we have to determine how it got there. So I walked initially up the roadway and noticed that at the edge of the macadam, about seven to ten inches on the side of the road is gravel, or ~vhat they call gramble [sic], and there was a clear line or mark from the edge of the roadway through the gravel, through the weeds, and stopped at the back tire, which was the resting Sl~Ot of the motorcycle. ~3 Q Based on what you saw .... were you able to observe the direction of the gravel and the dirt and the xveeds? You said, there was a line of travel? A Yes. Yes, from the roadway towards the bike, the gravel fanned out. The dirt also fanned out. And the weeds N.T. 22. N.T. 23. ~Id. N.T. 24. Id. (emphasis added). 3 were laid down towards the motorcycle, all the way to the back tire. ~ 4 The trooper ',vent to the hospital where Defendant had been taken, but did not at that time attempt to interview him because he was undergoing treatment,is At the hospital, the trooper requested that blood be drawn for purposes of the BAC test previously mentioned. 16 With this evidentiary foundation, the Commonwealth was prepared to introduce testimony by the trooper that, several days following the accident, he had interviewed Defendant, that Defendant had initially claimed that he had been riding in the woods, that he then "put his head in his hands" and admitted that he had been riding on the roadway, and that he asked the trooper to cut him a break.17 Defendant's counsel objected, however, to such testimony at this evidentiary stage in the trial on the basis of the corpus delicti rule: MR. MORAN: Your Honor, ... I know what the witness is going to now talk about, about the confession that my guy made or allegedly made to him at the police barracks, I would argue to you right now that the corpus delicti of the crime hasn't been established, that it is the Commonwealth that has the burden to establish that before they can admit a confession. THE COURT: Okay. Mr. Gabig. MR. GABIG: Your Honor, I think that the corpus delicti was laid by the police officer. He said that he responded to the scene, and there was a motorcycle on the side of the road that had a track from the road to the motorcycle, and that the Defendant was found a distance away, and he said he was the operator. So that--and that he had an odor of alcohol about his body. And we're stipulating to the BAC. We haven't done so yet. MR. MORAN: I'll admit, for purposes of this discussion, that the--even though we have agreed that the .27 comes in, ~4 N.T. 25 (emphasis added). ~5 N.T. 26. 16Id' ~7 See N.T. 26-29. 4 but even with that, the Commonwealth hasn't established when the accident happened through [any] witnesses, and even if there was an accident. All we know is, there's some scrapes on the highway. ~8 Noting Defendant's objection, the court permitted the Commonwealth to elicit the testimony from the trooper as to Defendant's admission that he had been operating the motorcycle on the roadway.19 The trial then proceeded. In addition to the stipulation that Defendant's BAC was .27% when blood was drawn at 10:15 p.m.,2° evidence was introduced following this point in the trial that the registration plate on Defendant's motorcycle was not for that vehicle,2~ that the engine was warm when the trooper arrived at approximately 8:49 p.m.,22 that the front tire had been damaged,23 and that Defendant had been found about a hundred feet off the roadway.24 The Commonwealth further introduced testimony from an emergency medical technician that Defendant reported to her that he had consumed five to six beers prior to the accident,25 and that he had been riding "home towards Dillsburg," York County, when the accident occurred.26 According to this witness, Defendant also initially told her that the accident was caused by another car which ran him off the road into a ditch, and later claimed that it was caused by a deer that came out of the woods and knocked him off the motorcycle? ~8 N.T. 26-27. ~9 N.T. 27. 2o N.T. 32, 56. 21 N.T. 29, 31. 22 N.T. 36. 23 Id. 24 N.T. 38. 2s N.T. 50. 26 N.T. 47. 27 Id. As noted, at the conclusion of the trial the jury found Defendant guilty of driving under the influence of alcohol, in violation of section 3731(a)(4) of the Vehicle Code. The mandatory minimum sentence applicable to the offense xvas imposed on October 24, 2000. Defendant's release on his o~vn recognizance was authorized pending disposition of his appeal from the judgment of sentence.28 DISCUSSION Section 373 l(a) of the Vehicle Code provides, in pertinent part, as folloxvs: A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: (4) While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or 29 greater .... In addition, section 3101(b) of the Vehicle Code provides that section 3731 "shall apply upon highways and trafficways throughout this Commonwealth.''3° The elements of this form of the offense are thus the operation of a vehicle upon a highway or trafficway at a time when the driver's blood alcohol level is . 10% or greater. "The historical purpose of the [corpus delicti] rule is to prevent a conviction based solely upon a confession or admission, where in fact no crime has been committed." Commonwealth v. Verticelli, 550 Pa. 435, 441,706 A.2d 821, 823 (1998). To this end, the rule in Pennsylvania has two aspects. The corpus delicti rule is two-tiered; it must first be considered as a rule of evidentiary admissibility using a prima facie standard, and later, under a beyond a reasonable doubt 28 Order of Court, dated October 24, 2000. 29 Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 373 l(a)(4)(i) (2000 Supp.). 3°Id. § 3101(b). 6 standard, as one of proof for the fact-finder's consideration at the close of the case. Commonwealth v. Zugay, 745 A.2d 639, 652 (Pa. Super. Ct. 2000). At issue in the present case was the aspect of the rule pertaining to admissibility. In this regard, the rule has been expressed as follows: "Before introducing an extra-judicial admission, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt. Rather, it is enough for the Commonwealth to prove that the injury or loss is more consistent with a crime having been committed than not." Id. (citations omitted). While the burden of establishing the corpus delicti is not equivalent to the Commonwealth's ultimate burden of proof, the evidence of a corpus delicti is insufficient if it is merely equally consistent with non-criminal acts as with criminal acts. Id. at 653. Thus, a statement of a defendant subject to the corpus delicti rule xvill be admissible if, "prior to introducing the statement, the Commonwealth ha[s] established that it was more likely than not that a crime ... had occurred." Id. The corpus delicti may be demonstrated by direct or circumstantial evidence. Id. In this regard, familiar indicia of driving under the influence include the odor of an alcoholic beverage emanating from the driver,3~ a BAC level in excess of.10%,32 unsafe driving,33 and an accident under circumstances suggestive of serious driver error.34 Finally, there is authority for the proposition that, inasmuch as the order of proof in a case is generally discretionary ~vith the trial court, the admission of a 31 See Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091 (1990); Comtnonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748 (1982); Commonwealth v. Petro, No. 94-1619 Criminal Term (Cumberland Co. Nov. 1, 1995). 32 See Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 3731(a)(4)(i) (2000 Supp.). 33 See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v. Petro, No. 94-1619 (Cumberland Co. Nov. 1, 1995). 34 See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990); Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569 (1989), appeal denied, 527 Pa. 646, 593 A.2d 419 (1990); Commonwealth v. Petro, No. 94-1619 (Cumberland Co. Nov. 1, 1995). 7 statement subject to the rule prior to establishment of the corpus delicti will not be deemed reversible error where the Commonwealth's case as a xvhole contains the requisite degree of independent proof of the corpus delicti for admission of the statement. See Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982); Packel & Poulin, Pennsylvania Evidence § 432, at 356 (2d ed. 1999). In the present case, the court was unable to agree with Defendant's counsel that evidence of the Commonwealth tending to show (a) that Defendant had been involved in a one-vehicle accident under circumstances suggestive of serious driver error and unsafe driving, (b) that the accident had begun on the public roadway, (c) that Defendant emitted a strong odor of an alcoholic beverage, and (d) that his blood alcohol level was .27% was a less than sufficient predicate for admission of his inculpatory statement that he had been driving on the roadway when the accident occurred. Such initial evidence, in the court's view, amply supported the proposition that, more probably than not, the crime of driving under the influence had occurred. In addition, the evidence which followed in support of the prosecution, independent of any statements of Defendant subject to the corpus delicti rule, rendered any possible error in the timing of the admission of Defendant's statement harmless, in the court's view. For these reasons, it is believed that the judgment of sentence from which Defendant has appealed was properly entered. Jaime Keating, Esq. Chief Deputy District Attorney Paul B. Orr, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, J~esley Ole ,~., J. {// '