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HomeMy WebLinkAboutCP-21-CR-1799-2002COMMONWEALTH V. JEFFREY LEE HURLEY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-1799 CRIMINAL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., June ,2003 After a non-jury trial, we found the defendant guilty of driving under the influence~ and speeding.2 On March 25, 2003, he was sentenced to undergo imprisonment for not less than thirty (30) days nor more than twenty-three (23) months on the driving under the influence charge and to pay fines and costs on the speeding charge.3 This timely appeal followed. The only issue raised on appeal is the sufficiency of the evidence in connection with the driving under the influence conviction. FACTUAL BACKGROUND Upon hearing the testimony and reviewing the exhibits, we found the following facts. On March 23, 2002, at approximately 10:15 p.m., North Middleton Township patrolman Brian McVitty clocked the defendant traveling 59 miles per hour in a posted 45 mile per hour speed zone.4 During the ensuing traffic stop, the officer smelled alcohol 1 75 Pa. C.S.A. § 3731 (a)(1). 2 75 Pa. C.S.A. § 3362. We found that he was traveling 59 miles per hour in a posted 45 mile per hour speed zone. 3 The driving under the influence was his second offense within seven years. Therefore, the imposition of a minimum sentence of thirty (30) days was mandatory. 4 Trial Transcript, p. 7. NO. 2002-1799 CRIMINAL and noticed that the defendant's eyes were glassy and bloodshot.5 He also observed a 12 pack of beer in the back seat, with several cans missing, as well as a can of beer under the front seat.6 The defendant readily admitted to drinking because of personal problems.7 His estimates of the amount of alcohol he had consumed ranged from as few as three (3) to as many as five (5) cans of beer.8 In addition, his emotional state was erratic. He would be calm one minute, agitated, upset and crying the next.9 Since he had only been on the job a short time, Officer McVitty summoned Detective Kibler to assist in the traffic stop. Officer Kibler also noted defendant's bloodshot eyes and the odor of alcohol, l0 In addition, he remarked that the defendant's speech was slurred. Both Officer McVitty and Detective Kibler testified that, based upon their observation of the defendant, as well as their training and experience, it was their opinion that the defendant was under the influence of alcohol to such a degree as to render him incapable of safe driving. ~ We found the testimony of both Officer McVitty and Detective Kibler to be credible. The defendant was placed under arrest and transported to the Central Booking Center to be processed. While en route, the defendant indicated that he would not submit to a breath test because "he knew that having multiple beers within an hour would cause him issues.''~2 Once at the Central Booking Center, the defendant was advised of the Trial Transcript, p. 8. Trial Transcript, p. 8. Trial Transcript, p. 9. Trial Transcript, p. 9. The officer described the defendant as being on "an emotional roller coaster." Trial Transcript, p. 9. l0 Trial Transcript, p. 17. ~ Trial Transcript, pp. 10, 19. ~: Trial Transcript, p. 10. NO. 2002-1799 CRIMINAL Implied Consent Law and the ramifications for refusing to submit to a breath test.~3 Nevertheless, he still refused to submit to the test.TM DISCUSSION The Section of the Vehicle Code under which defendant was charged provides: A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. 75 Pa. C.S.A. § 3731 (a)(1). Based upon the facts as we found them to be, we were satisfied beyond a reasonable doubt that the Commonwealth had proven all the elements of that offense. Defendant does not dispute that the evidence was sufficient to prove that he had been driving after consuming alcohol. He does, however, question the sufficiency of the evidence in connection with his being under the influence of alcohol to a degree which rendered him incapable of safe driving. The standard of review in assessing such a challenge is well settled and was recently articulated by the Superior Court as follows: "The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact finder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Heberling, 451 Pa. Super. 119, 678 A.2d 794, 795 (Pa. Super. 1996) (citing Commonwealth v. Williams, 539 Pa. 61,650 A.2d 420 (1994)) .... In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Commonwealth v. Cassidy, 447 Pa. Super. 192, 668 A.2d 1143, 1144 (Pa. Super. 1995) (citations Commonwealth Exhibit 4, pp. 1-2. See Concise Statement of Matters Complained of on Appeal NO. 2002-1799 CRIMINAL omitted). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Falette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted). Commonwealth v. 1Vlartinez, 777 A.2d 1121, 1126 Pa. Super. (2001) quoting from Commonwealth v. Fetrini, 734 A.2d 404, 406-407 Pa. Super. (1999). Applying that standard to the case at bar, we are at a loss to understand the defendant's challenge to the sufficiency of the evidence. There was ample evidence, both direct and circumstantial, that defendant was driving a vehicle while under the influence of alcohol to a degree that rendered him incapable of safe driving. He was speeding. He admitted to drinking substantial amounts of alcohol. His eyes were glassy and bloodshot. His speech was slurred. The officers opined that he was intoxicated to the point that he could not drive safely. Further, based upon the reason given for his failure to submit to a breath test, we concluded that the defendant also felt that he was intoxicated to the point that he was incapable of safe driving. While no one factor standing alone may have been sufficient to convince us, taken as a whole, we were satisfied that the evidence established defendant's guilt beyond a reasonable doubt. NO. 2002-1799 CRIMINAL DATE: Edward E. Guido, J. Michael W. Mervine, Esquire For the Commonwealth Ellen K. Barry, Esquire For the Defendant :sld