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HomeMy WebLinkAboutCP-21-CR-2423-2007COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: V. (1) DUI, GENERAL IMPAIRMENT WITH ACCIDENT (4) ACCIDENT INVOLVING DAMAGE TO UNATTENDED VEHICLE OR PROPERTY (SUM.) ROBERT REED STAATS HOLLER OTN: L330873-4 CP -21 -CR -2423-2007 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., September 24, 2008. In this criminal case, Defendant was found guilty following a bench trial at Count 1 of Driving under the Influence, General Impairment with Accident,' a second offense for mandatory sentencing purposes and a misdemeanor, and guilty at Count 4 of Accident Involving Damage to Unattended Vehicle or Property,2 a summary offense .3 Defendant was sentenced at Count 1 to undergo a period of imprisonment of not less than 2 1/2 months nor more than six months and to pay a fine of $750.00, and at Count 4 to pay a fine of $300.00.4 From the judgment of sentence, Defendant has filed an appeal to the Pennsylvania Superior Court .5 The bases for the appeal have been expressed in a statement of matters complained of on appeal as follows: 'Act of May 11, 2006, P.L. 155, §2, as amended, 75 Pa. C.S.A. §3802(a)(1) (2008 West) 2 Act of July 6, 1995, P.L. 288, §2, as amended, 75 Pa. C.S.A. §3745 (2008 West) s Order of Court, May 27, 2008. 4 Order of Court, July 29, 2008. s Defendant's Notice of Appeal, filed August 18, 2008. Defendant remains at liberty on his own recognizance pending disposition of the appeal. Order of Court, July 29, 2008. 1. There was insufficient evidence as a matter of law to support the verdict of driving under the influence in that there was a blood alcohol measurement of .05 and video evidence indicating that the Defendant was not impaired. 2. The evidence was insufficient as a matter of law to support the conviction of accident involving damage to unattended vehicle or property in that there was no evidence of any damage to unattended property.6 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an incident occurring on January 12, 2007, Defendant was charged with Driving under the Influence, General Impairment with Accident, and Accident Involving Damage to Unattended Vehicle or Property. At trial the Commonwealth called four witnesses: Fire Police Officer Eugene Woodward, Pennsylvania State Trooper Michael Brandtonies, Pennsylvania State Police Corporal Gregory Styers and Cumberland County Booking Agent Teresa Coyle. Defendant called two witnesses, Bruce J. Pennick of Pennick Automotive in Dillsburg, Pennsylvania, and Sandra L. Crone, a passenger in a vehicle driven by Defendant at the time of the incident. In the Commonwealth's case -in -chief, Fire Police Officer Woodward testified that he came upon the scene of a one -car accident$ around 11:40 a.m. on Friday, January 12, 2007.9 Officer Woodward testified that at the time there was a vehicle sitting sideways on the road with extreme damage to the passenger side. 10 He further testified that a stone 6 Defendant's Concise Statement of the Errors Complained of on Appeal, filed August 27, 2008. Criminal Complaint, filed November 15, 2007. Charges of Driving under the Influence, Controlled Substance, and Driving under the Influence, Combination, were also filed but later withdrawn. Order of Court, January 8, 2008. 'Notes of Testimony 8, Trial, March 20, 2008 (hereinafter N.T. I March 20, 2008). 9 N.T. 6, March 20, 2008. 10 N.T. 7, March 20, 2008. 2 wall, owned by a person named Jay Dentler," and the road bank had damage. 12 Officer Woodward testified that, when the driver found out that someone had called the police, he became anxious and did not want the police there. 13 He testified that the driver remarked that he needed a drink, and then left the scene on foot. 14 Trooper Brandtonies testified that he was given a description by his dispatcher of a driver who had left the scene of a single -car accident heading toward an establishment known as the Cold Springs Tavern. 15 Trooper Brandtonies testified that he proceeded to the tavern but was initially unable to locate a person matching the description of the driver. 16 He stated that, upon exiting the tavern, he saw Defendant approaching on a sidewalk toward the tavern. 17 He further stated that Defendant matched the description of the driver given to him. 18 Trooper Brandtonies testified that Defendant had a knot on his forehead, with a little blood around it.19 Trooper Brandtonies testified that Defendant told him that his house was right beside the Cold Springs Tavern.20 Trooper Brandtonies testified that Defendant also told him that he was the driver of a vehicle that had just been in a crash .21 Trooper Brandtonies also noted that Defendant had a strong odor of an alcoholic beverage coming from his person, his eyelids were droopy, he had glassy " N.T. 13, March 20, 2008. 12 N.T. 7, March 20, 2008. " N.T. 9, March 20, 2008. 14 N.T. 9-10, March 20, 2008. " N.T. 20, March 20, 2008. 16 N.T. 21, March 20, 2008. 17 N.T. 21, March 20, 2008. " N.T. 21, March 20, 2008. 19 N.T. 21-22, March 20, 2008. 20 N.T. 31, March 20, 2008. 21 N.T. 22, March 20, 2008. 3 bloodshot eyes, his speech was slow and slurred, and he was swaying.22 Trooper Brandtonies testified that he believed Defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving. 21 Trooper Brandtonies testified that he then drove Defendant back to the crash site,24 where Defendant was identified by Fire Police Officer Woodward as the person who had been driving the vehicle.25 Trooper Brandtonies noted that Defendant's vehicle was severely damaged on the passenger side.26 He also noted that a woman was sitting in the passenger's seat, slumped over into the driver's seat, appearing to be either asleep or passed out.27 Corporal Styers testified that he was asked to respond to a crash scene where Trooper Brandtonies had an individual in custody for driving under the influence .28 Corporal Styers stated that, at the time of the crash, the roads were dry and there were no adverse weather conditions. 29 Corporal Styers testified that he was given custody of Defendant for purposes of transporting him to a booking center for processing. 30 Corporal Styers stated that Defendant had bloodshot eyes, slurred speech, and a mark on his forehead as a result of the crash .31 Corporal Styers testified that Defendant told him that he had consumed two screwdrivers approximately forty minutes earlier.32 Corporal 22 N.T. 22-23, March 20, 2008. 2s N.T. 24, March 20, 2008. 24 N.T. 23, March 20, 2008. 2s N.T. 14, March 20, 2008. 26 N.T. 25, March 20, 2008. 27 N.T. 27, March 20, 2008. 2s N.T. 37, March 20, 2008. 29 N.T. 36, March 20, 2008. so N.T. 37, March 20, 2008. 31 N.T. 38, March 20, 2008. 12 N.T. 38, March 20, 2008. 11 Styers testified that he had Defendant under the requisite twenty -minute observation period before the administration of an Intoxilyzer breath test.33 Booking Agent Coyle testified that she processed Defendant ,34 and administered field sobriety tests35 as well as the Intoxilyzer breath test.36 Booking Agent Coyle testified as to her training in administering field sobriety tests .37 She noted that Defendant had very glassy eyes, was swaying, and had a distinct odor of an alcoholic beverage .38 Booking Agent Coyle testified that Defendant displayed deficiencies in both field sobriety tests which she administered .39 She stated, specifically, that Defendant swayed during the one -leg -stand test and failed to follow the instructions for the walk - and -turn test.40 Agent Coyle testified that she administered the Intoxilyzer breath tests at 1:06 p.m. and 1:07 p.m., with respective results of .059% and .056%.4i The video evidence of Defendant's field sobriety tests, administered by Booking Agent Coyle, confirmed that Defendant swayed during the one -leg -stand test.42 The video also confirmed that Defendant failed to take the requisite number of steps and failed to turn properly in the walk -and -turn test.43 " N.T. 39, March 20, 2008. 34 N.T. 40, March 20, 2008. "N.T. 41-43, March 20, 2008. 36 N.T. 54, March 20, 2008. 37 N.T. 41, March 20, 2008. " N.T. 40, March 20, 2008. s9 N.T. 43, March 20, 2008. 40 N.T. 43-44, March 20, 2008. 41 N.T. 54, March 20, 2008. 42 Defendant's Exhibit 4, admitted May 27, 2008. 43 Defendant's Exhibit 4, admitted May 27, 2008. 5 On behalf of Defendant, Bruce Pennick, operator of a company called Pennick Automotive, testified that he received a phone call from Defendant advising that his car had broken down and that he needed a tow.44 He stated that there were no business records kept pertaining to the call because the vehicle was not ultimately towed .45 He testified that, when the tow truck driver got to the scene, the police were already there .46 Ms. Crone testified that at the time of the incident she was a passenger in Defendant's vehicle, which was proceeding to a grocery store .47 She testified that the car seized and stopped, causing Defendant's head to hit the windshield .48 She stated that Defendant did not have a cell phone and went home to call a tow truck .49 She denied that she had fallen asleep in the vehicle .50 Trooper Brandtonies was recalled to the stand to rebut the testimony of Ms. Crone .51 Trooper Brandtonies testified that Defendant told him that he was in possession of a cell phone and that he had used it to call a tow truck while at the scene of the crash .52 At the conclusion of the trial, and following closing arguments, the court found Defendant guilty of Driving under the Influence, General Impairment with Accident, a misdemeanor, and guilty of Accident Involving Damage to Unattended Vehicle or Property, a summary offense .53 A second offender for mandatory sentencing purposes, 44 N.T. 57, March 20, 2008. 4s N.T. 57, March 20, 2008. 46 N.T. 57, March 20, 2008. 47 N.T. 61, March 20, 2008. 48 N.T. 62, March 20, 2008. 49 N.T. 64, March 20, 2008. so Notes of Testimony 8, Trial, May 27, 2008 (hereinafter N.T. May 27, 2008). " N.T. 14, May 27, 2008. Sz N.T. 16, May 27, 2008. " Order of Court, May 27, 2008. 31 Defendant was sentenced on the DUI charge to a period of imprisonment of not less than 2 1/2 months nor more than six months, and to pay a fine of $750.00; on the summary offense charge, he was sentenced to pay a fine of $300.00.54 Defendant's notice of appeal from the judgment of sentence, challenging the sufficiency of the evidence ,55 was filed on August 18, 2008.56 DISCUSSION On a challenge to the sufficiency of the evidence in a criminal case, the proper test is "whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined all the elements of the crime have been established beyond a reasonable doubt." Commonwealth v. O'Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290, quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995). A challenge to the sufficiency of the evidence does not implicate a weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135. The trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582, 585, quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). Under Section 3802(a)(1) of the Vehicle Code, an individual may not drive, operate, or be in actual physical control of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. Act of May 11, 2006, P.L. 155, §2, as amended, 75 Pa. C.S.A. §3802(a)(1) (2008 West). Defendant suggests that there was insufficient evidence as a matter of law to support a finding of this form of driving under the influence in that there was a blood 14 Order of Court, July 29, 2008. " Defendant's Concise Statement of the Errors Complained of on Appeal, filed August 27, 2008. 16 Defendant's Notice of Appeal, filed August 18, 2008. 7 alcohol measurement of only .056% and video evidence indicating that Defendant was not impaired. However, under Section 3802(a)(1), blood alcohol content is only one factor to be considered in a determination of whether a driver is under the influence to a degree that he or she is incapable of safely operating a vehicle. In order to establish Defendant's guilt under Section 3802(a)(1), the Commonwealth had to prove (1) that he was operating a vehicle on a public highway or trafficway, (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986). There is no dispute that Defendant was driving a vehicle on a public highway or trafficway at the time of the incident in question. However, Defendant argues that he was not impaired. The statutory expression "under the influence of alcohol" includes any mental or physical condition which is the result of drinking alcoholic beverages and which makes one unfit to drive a vehicle or which substantially impairs his judgment, clearness of intellect, or any of the normal faculties essential to the safe operation of a vehicle. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986). In Commonwealth v. O'Bryon, 2003 PA Super 139, ¶3, 820 A.2d 1287, 1289, a responding officer came upon a scene where the defendant's vehicle had extensive front end damage. The officer noted that the defendant was staggering and appeared very sleepy. Id. The officer detected an odor of an alcoholic beverage coming from her and conducted a field sobriety test, which she failed. Id. at ¶4, 820 A.2d at 1289. Ms. O'Bryon was convicted of driving under the influence of alcohol under Section 3731(a)(1) despite having had a BAC level below .08%. Id. at ¶5, 820 A.2d at 1290. The Superior Court held that the defendant's conviction was amply supported by the evidence in light of the officer's testimony of the defendant's intoxication and inability to safely operate a vehicle. Id. at ¶12, 820 A.2d at 1292. In the present case, Trooper Brandtonies, Corporal Styers, and Booking Officer Coyle each testified that Defendant had a number of indicators of being under the influence of alcohol. These included an odor of an alcoholic beverage coming from his person, bloodshot and glassy eyes, slow and slurred speech, and swaying. In addition to these common indicia of intoxication, Defendant was in a single -car crash into a stone wall in daylight hours with dry road conditions, highly suggestive of driver error. Following the crash, Defendant left the scene and headed toward a tavern, where he was located by Trooper Brandtonies. Through his conversations with the police, Defendant admitted to consuming alcohol. Defendant was given two field sobriety tests by Booking Agent Coyle, the one -leg -stand test and the walk -and -turn test; he had deficiencies in both. Booking Officer Coyle also administered an Intoxilyzer breath test indicating a blood alcohol content of .056%. The blood alcohol content evidence was cited by Defendant as an indication that he was not legally intoxicated, as it was below .08. However, a specific blood alcohol content is not an element that must be proven under Section 3802(a)(1). Commonwealth v. Thur, 2006 PA Super 208, ¶54, 906 A.2d 552, 565. Blood alcohol content is nonetheless admissible as one factor which the trier -of -fact may consider when determining whether a driver was incapable of safe operation. Id. The test result was but one piece of evidence, along with other items such as driving conduct, odor of an alcoholic beverage, slurred speech, swaying, an admission of drinking, and the opinion of the state trooper that Defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving. Id., citing Commonwealth v. Zugay, 2000 PA Super 15, ¶12, 906 A.2d 552, 565-66. In the present case, where the Commonwealth produced evidence showing (a) that Defendant exhibited numerous signs of intoxication, including a single -car accident causing damage to a stone wall, leaving the scene of the accident, having an odor of an alcoholic beverage, swaying, having bloodshot and glassy eyes, receiving deficiencies in both administered field sobriety tests, admitting to consumption of alcohol, and having a blood alcohol content of .056%, and (b) that in the opinion of a state trooper Defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving, it is believed that the evidence was sufficient for the trier -of -fact to find beyond a reasonable doubt that Defendant was operating a vehicle after imbibing a sufficient 9 amount of alcohol that he was rendered incapable of safely driving the vehicle, in violation of Section 3802(a)(1) of the Vehicle Code. Defendant was also charged with a summary offense, Accident Involving Damage to Unattended Vehicle or Property, in violation of 75 Pa. C.S.A. §3745 (2008 West). Section 3745 reads: The driver of any vehicle which collides with or is involved in an accident with any vehicle or other property which is unattended resulting in any damage to the other vehicle or property shall immediately stop the vehicle at the scene of the accident or as close thereto as possible and shall then and there either locate and notify the operator or owner of the damaged vehicle or other property of his name, address, information relating to financial responsibility and the registration number of the vehicle being driven or shall attach securely in a conspicuous place in or on the damaged vehicle or other property a written notice giving his name, address, information relating to financial responsibility and the registration number of the vehicle being driven and shall without unnecessary delay notify the nearest office of a duly authorized police department. Every stop shall be made without obstructing traffic more than is necessary. 57 In the present case, Defendant crashed his vehicle into an unattended stone wall. Defendant failed to notify the owner of the stone wall following the crash. Instead, Defendant left the scene to go to a nearby tavern. The Commonwealth presented sufficient evidence that the stone wall was damaged following the crash. There was no indication that Defendant attempted to locate the owner of the stone wall or to attach securely written notice of his contact information. Consequently, it is believed that the evidence was sufficient for the trier -of -fact to find beyond a reasonable doubt that Defendant violated Section 3745 of the Vehicle Code. 57 Act of July 6, 1995, P.L. 288, §2, as amended, 75 Pa. C.S.A. §3745 (2008 West) 10 For the foregoing reasons, it is believed that the judgment of sentence was properly entered. Michelle H. Sibert, Esq. Chief Deputy District Attorney Taylor P. Andrews, Esq. Chief Public Defender BY THE COURT, J. Wesley Oler, Jr., J. 11