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HomeMy WebLinkAboutCP-21-CR-1901-2006 (2) 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: OPINION PURSUANT TO PA. R.A.P. 1925 By Ebert, Jr., J., April 15, 2008 – PROCEDURAL HISTORY On June 28, 2007, a jury convicted the Defendant of (1) Aggravated Assault by 1 Vehicle while Driving Under the Influence (F2), (2) Recklessly Endangering Another 23 Person (M2), (3) Driving Under the Influence, General Impairment with Accident (M), 4 (4) Driving Under the Influence, High Rate of Alcohol (M). The Court additionally 5 found the Defendant guilty of Count (5) Reckless Driving, a summary offense. The Defendant was sentenced on September 4, 2007. On the charge of Aggravated Assault by Vehicle while Driving Under the Influence, the Defendant was sentenced to pay a fine of $1,000.00 and undergo imprisonment in the Cumberland 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) County Prison for a period of not less than 10 nor more than 20 months. This was a standard range sentence. On the charge of Recklessly Endangering Another Person, the Defendant received a sentence of 30 to 60 days. This sentence was consecutive to the Aggravated Assault charge. It was also a standard range sentence. The Court ruled that the Driving Under the Influence, General Impairment with Accident, merged into the Aggravated Assault by Vehicle while Driving Under the Influence. On the Charge of Driving Under the Influence, High Rate of Alcohol, a second offense for mandatory purposes, the Court sentenced the Defendant to 30 days to 60 days. This sentence was consecutive to the sentence given to the Defendant on the Recklessly Endangering charge. This sentence was the mandatory minimum sentence allowed by law. On the charge of Reckless Driving, the Defendant was sentenced to pay the mandatory fine of $200.00. The aggregate sentence on all of the charges was 12 to 24 months in the Cumberland County Prison. On September 14, 2007, the Defendant filed a timely Post-Sentence Motion. The Motion was denied by an Opinion and Order of this Court on January 14, 2008. The Defendant then filed a timely Notice of Appeal on February 13, 2008. A Concise Statement of Matters Complained of on Appeal was filed on March 6, 2008. In it the Defendant raises the following issues on appeal: 1) The finder of fact erred in finding that there was sufficient 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. - 2 - 2)The court erred in failing 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 Concise Statement of Matters Complained on Appeal, filed March 6, 2008. This Opinion in support of the sentencing order of the Court is written pursuant to PA.R.A.P. 1925(a). STATEMENT OF THE FACTS The charges against Daniel J. Schmohl stem from a very serious motor vehicle accident that occurred at approximately 9:00 p.m. on March 30, 2006, on Sandbank Road, in Mt. Holly Springs, Cumberland County, Pennsylvania. The events leading up to the crime began sometime after 5:00 p.m. (N.T. 114) when the Defendant met his fiancée and two other acquaintances for dinner at the Three Pines Tavern. The Defendant indicated that he had dinner at the Tavern and drank at least 5-6, sixteen ounce beers. (N.T. 86, Comm. Exh. 7, 8, 9.) The Defendant admitted to the Central Processing Agent that he began drinking at approximately 5:30 p.m. that day and continued until 8:30 – 9:00 p.m. (Comm. Exh. 9.) The Defendant stated that the couple he was socializing with all evening were visibly intoxicated when they left the Tavern. He recognized that “they were certainly unsafe to drive.” (N.T. 116.) The Defendant left the Tavern, and drove his vehicle to a point on Sandbank Road where he struck the victim. (N.T. 116-117.) Pennsylvania State Trooper Bryan Henneman was dispatched to the collision scene at 9:07 p.m. The force of the collision propelled the victim’s body 101 feet from - 3 - the point of impact to where it struck a telephone pole. (Comm. Exh. 12, 13.) The victim was flown by Life Lion helicopter to Hershey Medical Center. Dr. Robert Cherry, Chief of Trauma and Critical Care at the Penn State Milton Hershey Medical Center, testified that the victim suffered life threatening injuries which included a large scalp laceration. The victim had lost so much blood that he was hemodynamically unstable and required 7 liters of crystalloid solution and 4 units of blood to restore his blood pressure. The Doctor testified that the victim could have died from his injuries if untreated. (N.T. 97-100.) The victim’s injuries were so extensive he required physical therapy 3 to 4 times a week for a period of 7 – 8 months. (N.T. 78.) Even though it was dark at the time of the incident, two drivers, Sonny Burford, the Defendant’s fiancée, and Regina Hershey, observed the boys walking along the roadway and successfully drove around them without incident. These observations were made just prior to Defendant’s collision with the victim. Even the Defendant admitted that if the victim was standing in the road, his headlights would have illuminated him and he should have been able to see him. (N.T. 125, Comm. Exh. 15.) All of the witnesses generally agree that the victim was walking side by side with two of his friends. The two friends testified that the victim was very close to the white fog line on the road. (N.T. 32, 43) Even the Defendant’s fiancée had stated to police that the one boy (i.e., the victim) was, “walking slightly over the white line.” (N.T. 70.) The only truly neutral witness, Regina Hershey, stated that the victim “was right on the white line. He was walking down the berm of the road.” (N.T. 51.) As shown in Commonwealth’s Exhibits 1 and 2, Sandbank Road in the area of the collision was relatively straight and unobstructed. An examination of the front of the Defendant’s car - 4 - shows an impact point which would establish that the right front wheel of the Defendant’s car was very likely on or over the white fog line when he struck the victim given the other witness testimony regarding the position of the victim just prior to the impact. (Comm. Exh. 3.) After striking the victim, the Defendant did not immediately stop but proceeded down Sandbank Road 440 feet before stopping. He did not call 911 on his cell phone but indicated that he panicked and called his fiancée. (N.T. 120.) After arriving at the scene, Trooper Henneman spoke with the Defendant and immediately detected a very strong odor of alcoholic beverage coming from his mouth and person. (N.T. 13.) The Trooper also noticed that the Defendant’s eyes were bloodshot and glassy. At first the Defendant stated he only drank one beer. (N.T. 13.) Later, he admitted he had five drinks. (N.T. 17.) The Trooper administered field sobriety tests to the Defendant and the Defendant failed both tests. The Defendant was placed under arrest for Driving Under the Influence. He was transported to the Cumberland County Booking Center for processing. (N.T. 17.) The Defendant admitted to the Booking Agent that he was, “under the influence of an alcoholic beverage.” (Comm. Exh. 7, 8, 9.) The Defendant did submit to a breathalyzer test at the Booking Center. The result of the test was that the Defendant’s blood alcohol content was .128% (N.T. 94, Comm. Exh. 8) within two hours of the collision of the car he was driving with the victim. - 5 - DISCUSSION A. Sufficiency of the Evidence On a challenge to the sufficiency of the evidence, the law is well settled. All the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Weir, 738 A.2d 467 (Pa. Super. 1999). Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the Defendant’s guilt to a mathematical certainty. The jury, as the trier of fact while passingupon the credibility of the witnesses and weight of the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005). As is true in all criminal cases, in Driving Under the Influence of Alcohol related prosecutions, the Commonwealth can prove any element of an offense by use of wholly circumstantial evidence. Id. The Defendant challenges the sufficiency of evidence with regard to three of his convictions: (1) Aggravated Assault by Vehicle while Driving Under the Influence, (2) Recklessly Endangering Another Person, and (3) Reckless Driving. The court will address each offense seriatim. 1. Aggravated Assault by Vehicle While Driving Under the Influence. With regard to this charge, the Commonwealth had the burden of proving the following elements beyond a reasonable doubt: - 6 - First, that the Defendant was guilty of the crime of Driving Under the Influence as defined by Section 3802 of the Vehicle Code. If the Defendant did commit the crime of Driving Under the Influence then the following two elements must also be proven: First, that the Defendant negligently caused serious bodily injury to Brandt Cromer; and Second, that the serious bodily injury caused to Brandt Cromer was the result of Driving Under the Influence. With regard to the charge of Driving Under the Influence, evidence presented at trial in the light most favorable to the Commonwealth established the following: a. The Defendant admitted that he had 5 – 6 sixteen ounce beers between the hours of 5:30 p.m. and 8:30 to 9:00 p.m. prior to the collision. b. After drinking this much alcohol, the Defendant drove a motor vehicle on various roadways in Cumberland County, eventually hitting the victim on Sandbank Road. c. Immediately after hitting the victim, Defendant failed field sobriety tests, had a strong odor of alcohol about him, and was under the influence to a degree that rendered him incapable of safe driving in the opinion of the experienced State Trooper. d. The Defendant admitted to the Booking Agent that he was “under the influence of alcoholic beverage.” e. Defendant’s blood alcohol content within two hours of the hitting the victim was .128%. There is no question that based on the above, the jury was presented with sufficient evidence to prove that the Defendant was Driving Under the Influence in - 7 - violation of Section 3802 of the Vehicle Code. The Court specifically notes that the Defendant is not even appealing his Driving Under the Influence convictions. On the element of negligently causing bodily injury to the victim, the evidence presented at trial established the following: a. The Defendant admitted that with his headlights on he should have been able to observe the victim prior to the collision. b. The Defendant failed to observe the victim, collided with the victim in a violent manner causing the victim to travel 101 feet in the air before hitting a telephone pole. c. On the relatively straight and unobstructed Sandbank Road, two drivers unimpaired by alcohol successfully observed the victim and his friends as they walked along the roadway and successfully drove around them without collision. The jury was told by the Court that “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 involves a gross deviation of care that a reasonable person would observe in the Defendant’s situation.” Clearly in this case, when the Defendant chose to drive a motor vehicle after imbibing, for over three hours, enough alcohol to raise his blood alcohol content to .128%, he failed to perceive the substantial and unjustifiable risk that such conduct can cause serious bodily injury. As stated previously, any element of an offense may be proved by circumstantial evidence. Clearly in this case, based on the circumstances that two drivers, unimpaired by alcohol, were capable of successfully - 8 - driving around the victim and his friends without colliding with them would establish the fact that the Defendant was negligent when he failed to observe the people walking along the road, failed to properly direct his vehicle such that it would not hit the victim and that these failures were the result of alcohol intoxication. With regard to the final element, the following evidence establishes that the victim’s serious bodily injury was the result of Driving Under the Influence. a. Defendant’s blood alcohol content within two hours of striking the victim was .128%. b. The Defendant admitted that he was under the influence of an alcoholic beverage. c. The impact point on the Defendant’s vehicle showed that he was not driving his vehicle in the center of the lane and given the victim’s position when struck as described by the other witnesses, circumstantially establishes that the Defendant’s right front wheel was over or at least on the fog line of Sandbank Road. d. On the relatively straight and unobstructed Sandbank Road, two drivers unimpaired by alcohol successfully observed the victim and his friends and successfully went around them without collision. e. The Defendant admitted that with his headlights on, he should have been able to observe the victim prior to the collision. f. Common experience establishes the fact that people who are impaired by the use of alcohol often fail to perceive hazards and lack the motor skills necessary to avoid serious collision. - 9 - g. The Defendant failed to observe the victim, collided with the victim in a violent manner causing the victim to travel 101 feet in the air before hitting a telephone pole. Dr. Robert Cherry of the Penn State Hershey Medical Center said that the victim could have died if untreated, required Life Lion helicopter evacuation, and extensive treatment and rehabilitation. h. The injury sustained by the victim constituted serious bodily injury. In the light most favorable to the Commonwealth as the verdict winner, it is clear that the jury found that because of the Defendant’s level of alcohol impairment produced as a result of drinking, by his own admission a minimum of 80 ounces of beer, over approximately a 3 hour period, his mental and physical faculties were impaired to such a degree that he was incapable of perceiving the victim as he walked along the road and therefore the alcohol impairment caused the Defendant to strike the victim causing the victim serious bodily injury. 2. Recklessly Endangering Another Person. 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 - 10 - 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). As stated in the Court’s instructions to the jury, to find the Defendant guilty beyond a reasonable doubt of the charge of Recklessly Endangering Another Person, the Commonwealth had the burden of proving, “that the Defendant recklessly did something that placed, or may have placed Brandt Cromer, Raymond Deihl and/or Kyle Myers, or any one of the three or all of them collectively, in danger of death or serious bodily injury (N.T. 154.) As noted, with regard to this offense, all three boys who were walking along the roadway are considered to be potential victims. The testimony of Raymond Deihl established that the victim was within four inches of his shoulder as they walked along the road, (N.T. 31, 32) and the other boy was right behind them. Deihl testified he had to cover his head with his hands as a result of flying glass from the collision. (N.T. 32, 43.) This Court is well aware of the proposition that driving under the influence of intoxicating substances does not create legal recklessness per se. However, when such intoxication is accompanied with other tangible indicia of unsafe driving, that create a substantial risk of injury, the mens rea necessary for Recklessly Endangering Another Person can be established. Comm. v. Sullivan, 864 A.2d 1246 (Pa. Super. 2004). The evidence presented on this charge, in the light most favorable to the Commonwealth, establishes the following: a. The Defendant drank over 80 ounces of beer in roughly a three hour period. b. The Defendant recognized that his friends, who were with him the - 11 - entire period of time in the Three Pines Tavern and who also drank alcoholic beverages, were obviously incapable of safe driving, but he consciously disregarded the fact that he also had been drinking a long time and had a lot of beer. c. The Defendant was conscious of the fact that he had too much to drink when he tried to minimize to the investigating State Trooper that he only had one beer. d. The Defendant did strike the victim and caused him serious bodily injury. e. In striking the victim, the impact point on the Defendant’s car showed that his right front wheel was on or over the fog line at the time of impact with the victim’s body. f. Failing to perceive the victim and his friends as a result of alcohol intoxication was a gross deviation from the standard of conduct of a reasonable person especially in light of the fact that two alcohol unimpaired individuals successfully passed the boys group without incident. Clearly these factors establish additional tangible indicia of unsafe driving which goes beyond merely driving under the influence of intoxicating substances. The mere fact that the Defendant did not hit the other two boys does not mean that they were not endangered by the Defendant’s reckless acts. In short, there is more than adequate substantial evidence to prove this charge beyond a reasonable doubt. - 12 - 3. Reckless Driving. 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). The offense of Reckless Driving has two elements; an actus reus of driving a vehicle and a mens rea of willful or wanton disregard for the safety of persons or property. Commonwealth v. Bullick, 830 A.2d 998 (Pa. Super. 2003). In this case, there is no question that the Defendant was driving his vehicle on the roadways of Cumberland County after leaving the Three Pines Tavern. The question then turns on whether the Defendant possessed the mens rea necessary for this offense. The mens rea necessary to support the offense of Reckless Driving is a requirement that the Defendant drove in such a manner that there existed a substantial risk that injury would result from his driving, i.e. a high probability that a motor vehicle accident would result from driving in that manner, that he was aware of that risk and yet continued to drive in such a manner. In essence, that he callously disregarded the risk he was creating by his own reckless driving. Id. Inasmuch as this was a summary offense, this charge did not go to the jury but was tried by the Court. As such, the Court was free to determine the credibility of the witnesses and the weight of evidence produced, and to believe all, part, or none of the evidence. With regard to the charge of Reckless Driving, the Court found the following facts beyond a reasonable doubt: - 13 - a. The Defendant voluntarily chose to drink alcoholic beverages in a tavern in excess of three hours. b. The Defendant drank in excess of 80 ounces of beer during his time in the Three Pines Tavern. c. The Defendant was capable of noting that two of the people he drank with during the entire evening were intoxicated and incapable of safe driving. d. The Defendant’s blood alcohol within two hours of striking the victim with his car was .128%. e. The Defendant was speeding. The posted speed limit on Sandbank Road was 35 mph. Regina Hershey testified that the Defendant’s vehicle was traveling 55 miles per hour. This finding is supported by Commonwealth’s Exhibit #11 which states that given the distance the victim was thrown from the point of impact that the Defendant’s car was traveling between 39 and 50 miles per hour. f. The Defendant was aware of how much alcohol he consumed because he initially tried to tell the State Trooper he had only one beer knowing he had consumed much more which was evidence of his consciousness of guilt. g. After choosing to drive in an intoxicated state, the Defendant’s alcohol impairment rendered him incapable of identifying hazardous situations presented to him and the motor skill ability to avoid such hazards when they occurred. - 14 - Accordingly, a person who voluntarily chooses to drive his automobile while intoxicated, who then exceeds the speed limit and fails to perceive hazards as they present themselves along the roadway, has driven his automobile in a willful or wanton disregard for the safety of persons and or property. This offense was ongoing from the time the Defendant left the Three Pines Tavern until he struck the victim on Sandbank Road and stopped driving. In cases such as this, the argument is often made that mens rea of willful or wanton disregard for the safety of persons or property cannot be established because of the Defendant’s intoxication. However, with regard to this Vehicle Code offense, it must be remembered that voluntary intoxication is not a defense to a criminal charge nor may evidence of such a condition be introduced to negate the element of intent of the offense except in homicide cases. 18 Pa.C.S.A. § 308. Obviously, this is not a homicide case. The Defendant voluntarily chose to drive drunk, was speeding on the highway, and by doing so he willfully or wantonly disregarded the safety of persons or property along the route he chose to travel. 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 his second claim on appeal, Defendant maintains 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. - 15 - 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). Where one statutory provision requires proof of fact which another does not, an act which is in violation of both provisions will constitute two separate offenses which do not merge. See Commonwealth v. White, 491 A.2d 252 (Pa. Super. 1985). Initially we note that this Court did merge the Defendant’s conviction for Driving Under the Influence, General Impairment with Accident into the Aggravated Assault by Vehicle while Driving Under the Influence. Clearly, Driving Under the Influence, General Impairment with Accident can be accomplished without any reference to blood alcohol content. Under the old Driving Under the Influence statute, there were no separate offenses for specific levels of blood alcohol content. Under the new Driving Under the Influence statute, which became effective in 2004, separate offenses were created for General Impairment (§ 3802 (a)), High Rate of Alcohol (§ 3802 (b)) and Highest Rate of Alcohol (§ 3802 (c)). Accordingly, in this case, the Jury was asked specifically to find the level of the Defendant’s blood alcohol content and appropriately noted the verdict slip to show a rate between .10% and .16% corresponding to the .128% BAC level established by the Defendant’s Intoxilyzer test. Obviously, the Legislature has determined that separate punishments for different types of blood alcohol content are appropriate. - 16 - 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 We reject the Defendant’s argument that this Court erred in finding that there was sufficient evidence presented to prove every element of Aggravated Assault by Vehicle while Driving Under the Influence, Recklessly Endangering Another Person, and Reckless Driving. We also reject Defendant’s contention that this Court erred in failing to merge Charge (1) Aggravated Assault by Vehicle While Driving Under the Influence - 17 - and Charge (4) Driving Under the Influence, High Rate of Alcohol. Accordingly we uphold the order sentencing him to an aggregate term of twelve (12) to twenty-four (24) months in prison. By the Court, M.L. Ebert, Jr. J. Christylee Peck, Esquire Senior Assistant District Attorney Michael O. Palermo, Esquire Attorney for the Defendant - 18 -