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HomeMy WebLinkAbout98-0728 CriminalCOMMONWEALTH JEFFREY LYNN STINE OTN: F069489-0 · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · No. 98-0728 CRIMINAL TERM · CHARGE: D.U.I. IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., February 2, 1999. In this criminal case, Defendant has appealed to the Pennsylvania Superior Court from a judgment of sentence for driving under the influence· i The sentence was imposed following a jury verdict of guilty of violation of Section 373 l(a)(1) of the Vehicle Code (driving while under the influence of alcohol to a degree rendering the person incapable of safe driving).2 The bases for the appeal are sufficiency of the evidence and an allegedly erroneous ruling on a sUppression motion. With respect to sufficiency of the evidence, Defendant contends that [t]he evidence presented was not sufficient for the jury to find Jeffrey Lynn Stine guilty beyond a reasonable doubt of driving under the influence, 75 Pa. C.S. § 373 l(a)(1). Specifically, the Commonwealth failed to present any testimony concerning the Defendant's impairment at the time of the operation of the vehicle and the evidence presented by the Commonwealth did not relate to the time of driving? With respect to the ruling on the suppression motion, Defendant states that ~ Notice of Appeal, filed November 17, 1998. 2 Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 3731(a)(1) (1998 Supp.). 3 Defendant's Concise Statement of Matters Complained of on Appeal, filed December 4, 1998. ... at trial an objection had been made to [a] search of [Defendant's] vehicle .... The search of the vehicle was performed without a warrant .... 4 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The test for sufficiency of the evidence in a criminal case has been stated by the Pennsylvania Superior Court as follows: The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as tree all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth.5 The Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence,6 and the jury, as trier-of-fact, is free to believe all, part or none of the evidence presented.7 Viewed accordingly, the evidence at trial may be summarized as follows. On Sunday, 4 Defendant's Amended Statement of Matters Complained of on Appeal, filed January 25, 1999. ~ Commonwealth v. Barnes, 310 Pm Super. 480, 482-83,456 A.2d 1037, 1038 (1983). 6 Commonwealth v. Gease, 548 Pa. 165, 696 A.2d 130 (1997). 7 Commonwealth v. Metts, 447 Pa. Super. 275, 669 A.2d 346 (1995). 2 February 22, 1998,8 shortly before 4:00 a.m.9 Defendant was driving his~° 1984 Ford pickup truck~ eastwardly on Walnut Dale Road12 in Southampton Township, Cumberland County, Pennsylvania. 13 Walnut Dale Road is a two-lane macadam road, with travel in each direction.TM The roadway was dry, the weather was clear and no adverse driving conditions existed? The area in question was wooded, t6 At a point where the road bore to the right,~7 Defendant's truck crossed into the westbound lane, struck the north bank of the road, flipped over and came to rest on its roof on the cartway.18 No evidence of skidding was present at the scene. ~9 No evidence at the accident scene suggested that an attempt had been made to right the vehicle after it had come 8N.T. 11,39. 9 N.T. 11, 14, 50. ~0 N.T. 40, 70. ~i N.T. 12, 56, 101. ~2 N.T. 40. ~3 N.T. 79. ~4 N.T. 17, 79. The evidence did not show, however, that the lanes were demarcated. N.T. 80. 15 N.T. 17, 51. 16 N.T. 16. ~7 N.T. 79, 104. ia N.T. 12, 79, 104. ~9 N.T. 77. to rest.2° A volunteer firefighter and certified emergency medical technician named Robert Van Scyoc responded to the scene, as did a fire chief/emergency medical technician from another volunteer fire company.2~ Based upon a concern that the absent driver might be injured and wandering in the woods, the firemen located an owner's card and bank payment book in the glove compartment of the overturned track; Defendant's name and nearby address were conveyed to state police from these items? This information was also evidently corroborated by the license plate on the vehicle? When the testimony of Mr. Van Scyoc was elicited at trial, Defendant's counsel moved, for the first time, "to suppress all evidence in this particular case.''24 He indicated that he had been unaware that the glove compartment of the vehicle had been invaded, and that he viewed the search, productive of information as to Defendant's identity, as illegal? Following a brief argument on the motion, it was denied? Immediately prior to the accident, Defendant, who was 34 years old and weighed 170 pounds,27 had been drinking at a party about a mile away? Defendant left the scene of the 20 N.T. 18-19. 2~ N.T. 10-12. Mr. Van Scyoc was also a police sergeant in another municipal jurisdiction, but was not on the scene in that capacity. N.T. 11-12. 22 N.T. 13. 23 N.T. 40, 69-70. 2n N.T. 19. 2s N.T. 19-20. 2~ N.T. 20. 27 N.T. 101. 28 N.T. 102-04. accident on foot.29 Defendant's residence was approximately three quarters of a mile from the accident scene,3° and Pennsylvania state troopers arrived at the residence at 4:27 a.m. looking for the Defendant? Although Defendant was present in the residence at the time the troopers arrived, his nephew falsely informed them that he was not there.32 When the troopers retumed about ten minutes later,33 Defendant answered the door in a disheveled condition34 and said that he had been home for 1 5 minutes.3s Defendant evidenced a lack of coordination, slurred speech, and bloodshot, glassy eyes; his breath contained a strong odor of an alcoholic beverage.36 In the opinion of a state trooper who was speaking with him, he was drank.37 Defendant admitted that he had been driving the vehicle in question.3g He informed the troopers, however, that he could not be arrested for driving under the influence because his consumption of three and a half beers had occurred after his arrival at the residence? 29 N.T. 105. 30 N.T. 47. 3~ N.T. 40-41. 32 N.T. 31, 33, 43, 46, 63. 33 N.T. 42. 34 N.T. 53. 35 N.T. 54. 36 N.T. 55-56. 37 N.T. 56. 38 N.T. 56. 39 N.T. 54. Following his arrest, he was transported to the Carlisle Hospital.no A sample of his blood drawn at 5:40 a.m. yielded a BAC test result of. 186 percent? This result, as it developed, was inconsistent with the consumption of only three and a half beers.42 Defendant told an investigating officer, on the morning of his arrest, that he had been driving to his home fi:om Chambersburg (in Franklin County) and that he had gone "a little too far out into the bend.''43 He added that a deer had jumped out in fi:ont of him.44 He said that he had hit the bank and flipped over.ns At trial, Defendant testified that, although the "main place" he was coming from at the time of the accident was Chambersburg,46 he was more immediately coming fi:om a party about a mile away fi:om the scene of the mishap?? He testified that he had had about a glass and a half of a "pretty strong" mixed drink at the party,ns Defendant claimed that following the accident he had walked back to the party, secured the assistance of several partygoers (whom he declined to name, because he did not no N.T. 56. 42 N.T. 60. 42 N.T. 89. A toxicologist testified at trial that the ingestion of one beer would raise an adult's BAC level by about .02 percent. Id. 43 N.T. 62. 44 N.T. 62. 4s N.T. 62. 46 N.T. 102. 47 N.T. 102-04. 48 N.T. 103. 6 wish to incriminate them49), who attempted unsuccessfully to right the track, returned to the party, telephoned for a flatbed track, returned to the scene of the accident to wait for the flatbed, decided that a tractor would be helpful, and walked to his residence to bring back a tractor,so He testified that he had not called the police following the accident, because he "wouldn't call the cops for anything," due to their arrogance,s! At trial, a forensic toxicologist called on behalf of the Commonwealth opined that, given a BAC level of. 186 percent at 5:40 a.m., and accepting Defendant's claim that he had drank three and a half beers between 4:15 and 4:30 a.m., Defendant's BAC level at 4:00 a.m. would have been. 12 percent? The expert conceded on cross-examination that the accuracy of one's opinions in this area is enhanced by precise knowledge of the subject's alcohol consumption, weight and food intake, which he had not had.s3 At the conclusion of the trial, the jury found Defendant guilty of driving under the influence of alcohol to a degree which rendered him incapable of safe driving (in violation of Section 3731 [a][1 ] of the Vehicle Code) and not guilty of driving under the influence of alcohol at a time when his blood alcohol content was. 10% or greater (in violation of Section 3731 [a][4] of the Vehicle Code)? This was Defendant's third offense for driving under the 49 N.T. 114. so N.T. 109-111. s! N.T. 114. s2 N.T. 90. s3 N.T. 91-93. s4 N.T. 137-38. The court found Defendant not guilty of the summary offenses of driving on roadways laned for traffic (because of the absence of evidence that the roadway was laned) and careless driving (because of the absence of evidence of risk to another person or another person's property). N.T. 139-40. 7 influence? DISCUSSION Sufficiency of the evidence. Under Section 373 l(a)(1) of the Vehicle Code, it is provided that "[a] person shall not drive, operate or be in actual physical control of the movement of a vehicle... [w]hile under the influence of alcohol to a degree which renders the person incapable of safe driving." Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 373 l(a)(1)(1998 Supp.). The Pennsylvania Superior Court has discussed the elements of this offense as follows: In order to secure a conviction under section 373 l(a)(1), the Commonwealth must prove that (1) the defendant was the operator of a ... vehicle and (2) during operation of the vehicle he was under the influence of alcohol to such a degree that rendered him incapable of safe driving. In order to establish that a driver is unable to safely operate a vehicle, the prosecution must prove that alcohol has substantially impaired the normal mental and physical faculties required to operate the vehicle safely. Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Commonwealth v. Montini, 712 A.2d 761,768 (Pa. Super. Ct. 1998) (citations omitted). With respect to BAC test results in connection with a prosecution under Section 373 l(a)(1) of the Vehicle Code, the Superior Court has made the following observation, pertinent to the case subjudice: We note that unlike section 373 l(a)(4), which explicitly limits evidence admissible to support a conviction to scientific evidence, section 373 l(a)(1) is a general provision that provides no specific restraint upon the Commonwealth in the manner in which it may prove a violation. Thus, admission of a driver's 5s N.T. 141. 8 BAC without relating it back to the time he or she was driving does not invoke the same concerns as it does in seeking to prove a violation under 75 Pa.C.S.A. §3731(a)(4) because the test results are but one piece of the evidence to be considered.sa Common indicia of driving under the influence include alcohol consumption by the operator prior to driving,s7 unsafe driving,ss and an accident suggestive of serious driver error? Other indicia include glassy, bloodshot eyes, the odor of an alcoholic beverage on the breath, lack of coordination, and slurred speech.® In the present case, the jury was entitled to disbelieve Defendant's version of the accident and of his drinking pattern on the morning in question. It could reasonably have concluded that his avoidance of police contact following the accident was attributable to a consciousness of guilt rather than an aversion to arrogance, and that all of the indicia mentioned above led to a conclusion beyond a reasonable doubt that he had been driving under the influence of alcohol to a degree which rendered him incapable of safe driving. The fact that the jury was not satisfied that the BAC test result had been related back to a. 10 percent or greater level at the time of driving did not deprive the verdict of its soundness. Motion to suppress. Several factors militated against the granting of Defendant's sa Commonwealth v. Montini, 712 A.2d 761,768 n.5. (Pa. Super. Ct. 1998) (citations omitted). 57 See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990). 58 See Commonwealth v. Lawrentz, 453 Pa. Super. 118, 683 A.2d 303 (1996). s9 See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990); Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569, appeal denied, 527 Pa. 646, 593 A.2d 419 (1990). 60 See Commonwealth v. Nicotra, 425 Pa. Super. 600, 625 A.2d 1259 (1993). 9 motion to suppress in the instant case. First, it was not timely61 and the court did not view the circumstances as sufficiently compelling to warrant an exception, in the interests of justice, to the general rule. See Commonwealth v. Micklos, 448 Pa. Super. 560, 672 A.2d 796, appeal denied, 546 Pa. 678, 686 A.2d 1309 (1996).. Second, "It]he Fourth Amendment ... protect[s] against unrreasonable searches and seizures effectuated under the color of state action." Commonwealth v. Brandt, 456 Pa. Super. 717, 726 n.6, 691 A.2d 934, 939 n.6 (emphasis added), appeal denied, 549 Pa. 695, 700 A.2d 437 (1997). No Pennsylvania authority has been found for the proposition that a volunteer firefighter/emergency medical technician is an agent of the state for purposes of the fourth amendment.62 Third, "[t]he basic purpose of [the search and seizure clause of the fourth] amendment ... is to safeguard the privacy and security of individuals against arbitrary invasion by government officials." Carnara v. Municipal Court, 387 U.S. 523,528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930, ~ (1967). "Therefore, warrants are generally required before a governmental agency or official may conduct a search." Commonwealth v. Robbins, 436 Pa. Super. 177, 183-84, 647 A.2d 555, 558 (1994). The threshold question, therefore, in any Fourth Amendment inquiry is whether the conduct of the police amounted to a search. A search occurs when the government intrudes on an area where a person has a constitutionally protected reasonable expectation of privacy. Id. at 184, 647 A.2d at 558 (internal quotations omitted). In addition, the general rule requiring a warrant precedent to a search permits of an exception where exigent ~ See Pa. R. Crim. P. 397 (30-day period for filing omnibus pretrial motion). Defendant was formally arraigned on May 15, 1998, and the motion was made during trial on September 8, 1998. 62 In view of the other grounds for disposition of the motion, it is unnecessary to resolve this issue in this opinion. 10 circumstances are present. See Commonwealth v. Hartford, 313 Pa. Super. 213, 459 A.2d 815(1983). A warrantless intrustion which might otherwise be considered unreasonable and arbitrary can be consistent with one's rights under the fourth amendment when effected for the protection of the individual in question or his or her property. See, e.g., Commonwealth v. Person, 385 Pa. Super. 197, 560 A.2d 761 (1989) (discussion ofwarrantless entries into premises subjected to fire); Commonwealth v. Campbell, No. 2183 Criminal 1993 (Cumberland County March 13, 1995) (search of injured party's clothing for identification); cf. Commonwealth v. McKeever, 229 Pa. Super. 35, 323 A.2d 44 (1974) (announcement prior to entry excused where occupant believed being injured). In the present case, the entry complained of was by emergency personnel into the glove compartment of Defendant's track, under the following conditions: (1) the vehicle had just been involved in an accident and lay unattended on its roof, (2) the hour was 4:00 a.m. and the area wooded, (3) the driver was missing and feared to be injured, and (4) the purpose of the intrusion was to indentify the subject of concern. Under these circumstances, the court was of the view that an expectation of privacy as to identification papers in the overturned vehicle was not a reasonable one, that exigent circumstances obviated any need for procurement of a warrant prior to the entry, and that the element of arbitrariness characteristic of unreasonable searches and seizures was not present. Finally, "[p]ursuant to the inevitable discovery doctrine, if the prosecution can establish ... that the information [said to have been illegally obtained] ultimately or inevitably would have been discovered by lawful means, then the deterrence rationale of the exclusionary rule has so little basis that the evidence should be received. Commonwealth v. Rood, 686 A.2d 442, 448 (Pa. Commw. Ct. 1996) (citation omitted), appeal denied, 548 Pa. 683, 699 A.2d 736 (1997). In this case, the license plate of Defendant's vehicle would (and apparently did) lead to the same identifying information as 11 was found in the vehicle's glove compartment. CONCLUSION For the foregoing reasons, it is believed that the evidence was sufficient in the present case to sustain the verdict, that the suppression motion was correctly denied and that the judgment of sentence was properly imposed. Jonathan R. Birbeck, Esq. Chief Deputy District Attomey H. Anthony Adams, Esq. Assistant Public Defender 12