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· IN THE COURT OF COMMON PLEAS OF
· OF CUMBERLAND COUNTY, PENNSYLVANIA
· No. 97-1642 CRIMINAL TERM
JAMES OLIVER LOTT, III,
OTN: F042392-0
'CHARGES:
(1) DUI
(2) CARELESS DRIVING (SUM)
(3) IMMEDIATE NOTICE OF
ACCIDENT TO POLICE
DEPARTMENT (SUM)
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., April 29, 1999.
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 in violation of Section 3731 (a)(1) of the Vehicle Code~ and by
the court of careless driving2 and failure to notify police of an accident? The basis for the
appeal is that the evidence was insufficient to sustain the verdict on the charge of driving
under the influence?
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:
I See Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 373 l(a)(1) (1998
Supp.).
2 See Act of June 17, 1976, P.L. 162, § 1, 75 Pa. C.S. § 3714.
3 See id., 75 Pa. C.S. § 3746(a)(1), (2).
4 See Defendant's Concise Statement of Matters Complained of on Appeal, filed
April 21, 1999.
The test to be applied in determining the sufficiency of
evidence to sustain a conviction is whether, accepting as true 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, June 8, 1997, at approximately 2:00 a.m., Defendant, 29, was driving his mother's
Honda Accord west on Route 581 in Lower Allen Township, Cumberland County,
Pennsylvania, in clear, dry weather when he inexplicably struck a bridge? The vehicle came
to rest in the roadway, and Defendant began walking away from the scene.9
As he approached a motorist who had stopped after viewing the occurrence in her
rearview mirror, Defendant told her that he had had nothing to do with it.l° The vehicle he
was driving was then struck by another vehicle, injuring its operator, il
Commonwealth v. Barnes, 310 Pa. Super. 480, 482-83,456 A.2d 1037, 1038 (1983).
Commonwealth v. Gease, 548 Pa. 165, 696 A.2d 130 (1997).
Commonwealth v. Metts, 447 Pa. Super. 275, 669 A.2d 346 (1995).
Trial N.T. 16-17, 23, 32, 37, 51, 58, 86, 97-98 (hereinafter N.T. ).
N.T. 24, 29.
N.T. 24-25.
il N.T. 16, 19-20, 25-26.
2
Defendant proceeded to a telephone, from which he called his mother at their home
in Hampden Township, Cumberland County.12 He told her that he had been in an accident,
and she and his father picked him up and transported him home. 13 During this ride, he was
agitated and did not want to discuss the accident. 14
At 3:00 a.m., Gregory L. Eckert, a corporal with the Pennsylvania State Police who
had substantial experience in drunk driving cases, interviewed Defendant at Defendant's
home.~5 Defendant swayed and walked with an unsteady gait, displayed bloodshot eyes, and
emitted an "overpowering" odor of an alcoholic beverage.16 In the opinion of Corporal
Eckert, Defendant was intoxicated, and he was placed under arrest'. 17
Defendant refused to submit to a chemical test of his blood for purposes of
determining his BAC level.~s At 4:10 a.m., he told Pennsylvania State Trooper Michael
Fortley that he had not had anything to drink since the accident.~9 At that time, his eyes
appeared glassy, his clothes were unkempt and he coutinued to emit a strong odor of an
alcoholic beverage?
Trial in Defendant's case was held on January 25, 1999. As noted previously, a jury
12 N.T. 18-19, 33-35, 41, 51, 61.
~3 N.T. 34-35, 62.
14 N.T. 42, 44-45.
is N.T. 57-58, 61-62, 69, 79.
~6 N.T. 64-65, 71, 79.
17 N.T. 69-70, 75.
18 N.T. 82-83, 85.
~9 N.T. 86-87.
20 N.T. 88-89.
found him guilty of driving under the influence in violation of Section 373 l(a)(1) of the
Vehicle Code (driving under the influence of alcohol to a degree which renders one incapable
of safe driving) and the court found him guilty of careless driving and failure to notify police
of an accident under the Vehicle Code. On March 23, 1999, he was sentenced on the charge
of driving under the influence to the mandatory minimum term of imprisonment for a second
offense of 30 days (to 23 months), plus a fine of $300.00, and to fines of $25.00 on the other
two offenses.
Defendant filed an appeal from the judgment of sentence on April 7, 1999. As noted,
the issue on appeal is the sufficiency of the evidence to sustain the jury's verdict of guilty on
the driving under the influence charge.
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 infl.uence 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. § 3731(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 3731 (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.
4
Commonwealth v. Montini, 712 A.2d 761,768 (Pa. Super. Ct. 1998) (citations omitted).
Common indicia of driving under the influence of alcohol include unsafe driving,2~
an accident suggestive of serious driver error,TM glassy, bloodshot eyes, slurred speech, the
odor of alcoholic beverage on the breath,23 swaying24 and an unsteady gait?
In addition, under Section 1547(e) of the Vehicle Code it is provided as follows:
In any ... criminal proceeding in which the defendant is
charged with a violation of section 3 731 or any other violation
of [the Vehicle Code] arising out of the same action, the fact that
the defendant refused to submit to chemical testing as required
... may be introduced in evidence along with other testimony
concerning the circumstances of the refusal. No presumption
shall arise from this evidence but it may be considered along
with other factors concerning the charge?
A false statement concerning an incident27 and flight from the scene tend to suggest
consciousness of guilt? Finally, a police officer may generally express an opinion based on
personal observation that a person was intoxicated?
21 See Commonwealth v. Lawrentz, 453 Pa. Super. 118, 683 A.2d 303 (1996).
22 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).
23 See Commonwealth v. Nicotra, 425 Pa. Super. 600, 625 A.2d 1259 (1993).
24 See Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988).
2s See Commonwealth v. Proctor, 425 Pa. Super. 527, 625 A.2d 1221 (1993).
26 Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 1547(e).
27 See Commonwealth v. Carbone, 524 Pa. 551,574 A.2d 584 (1990); Commonwealth
v. Meadows, 381 Pa. Super. 354, 553 A.2d A.2d 1006 (1989).
28 See Commonwealth v. Milligan, 693 A.2d 1313 (Pa. Super. Ct. 1997).
29 See Commonwealth v. Proctor, 425 Pa. Super. 527, 625 A.2d 1221 (1993).
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In the present case, the evidence tended to show (a) that Defendant drove unsafely and
was involved in a one-car accident suggestive of serious driver error, (b) that immediately
following the event he made a false exculpatory statement concerning it and fled the scene,
(c) that in the ensuing approximately two-hour period he displayed indicia of being under the
influence of alcohol in the form of glassy, bloodshot eyes, slurred speech, swaying, an
unsteady gait, and the emission of the odor of an alcoholic beverage, (d) that any
consumption of alcohol had occurred prior to the accident, (e) that he refused to submit to
a chemical test to determine the alcoholic content of his blood, and (f) that in the opinion of
a police officer he was intoxicated when interviewed. It is believed that this evidence was
more than ample to permit a finder of fact to reasonably believe, beyond a reasonable doubt,
that the Defendant on the occasion in question was driving a vehicle while under the
influence of alcohol to a degree that rendered him incapable of safe driving.
Jonathan R.Birbeck, Esq.
Chief Deputy District Attorney
Austin F. Grogan, Esq.
Assistant Public Defender
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