HomeMy WebLinkAboutCP-21-CR-2224-2002COMMONWEALTH
GREGG THOMAS
IRWIN
OTN: L128666-6
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CHARGES: (1)
DRIVING WHILE OPERATING
PRIVILEGE IS SUSPENDED OR
REVOKED (sum.)
(2) STOP SIGNS AND YIELD SIGNS
(sum.)
(3) DRIVING UNDER THE
INFLUENCE (Misd. 1)
(4) CARELESS DRIVING (sum.)
· No. 02-2224 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., March 9, 2004·
In this criminal case, Defendant was found guilty by a jury of driving under
the influence of alcohol in violation of Sections 373 l(a)(1) and 373 l(a)(4) of the
Vehicle Cede,~ and by the court of three summary offenses: driving under
suspension (d.u.i. related) in violation of Section 1543(b) of the Vehicle Cede,2
stop signs and yield signs in violation of Section 3323(b) of the Vehicle Cede,3
and careless driving in violation of Section 3714 efthe Vehicle Cede.4
As a third offender for mandatory sentencing purposes, he was sentenced
on the driving under the influence charge to undergo a period of imprisonment of
not less than 90 days nor more than 20 months in the Cumberland County Prisen.5
On the charge of driving under suspension (d.u.i. related), he received the
~ Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. 83731(a)(1), (4) (2003 Supp.).
2 Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. 81543(b) (2003 Supp.).
3 Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. 83323(b) (2003 Supp.).
4 Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. 83714.
5 Order of Court, November 25, 2003. A fine of $300.00 was also imposed. Id. On the charges
of stop signs and yield signs and careless driving, Defendant was sentenced to pay fines of
$25.00. Id.
mandatory sentence applicable to the offense of 90 days in prison and a $1,000.00
fine.6 The prison sentences were to run consecutively to each other.?
From the judgment of sentence, Defendant has filed an appeal to the
Pennsylvania Superior Court.8 In view of Defendant's appeal, this court
authorized his continued release on his own recognizance.9
The issues being pursued on appeal have been expressed by Defendant in a
statement of matters complained of on appeal as follows:
1. Defendant appeals the determination of the Suppression
Court that there was probable cause for a vehicle stop.
2. Defendant appeals the determination of the Suppression
Court insomuch as the findings of fact the Suppression
Court must have made in order to determine that probable
cause existed, were not supported by the record, and that
the Trial Court has abused its' discretion.
3. Defendant appeals the sufficiency of the evidence,
insomuch as the blood test results admitted, were not
scientifically accurate, and witnesses conceded that the
blood results might not be accurate because of improper
storage and handling which was admitted to by the officers
who handled the blood. In particular, the scientist who ran
the tests indicated that [if] the blood had been heated, the
results could have been inaccurate, and the Chief of Police
agreed that he left the blood samples in an un-air
conditioned car, in the sun, in the heat of the day during the
hottest part of the year.
Defendant challenges the sufficiency of the evidence
against him and the evidence presented at trail as to both
Sections of the DUI statutes he was charged under,l°
The first two matters complained of on appeal relate to a pretrial
suppression motion disposed of adversely to Defendant by the Honorable Edward
Order of Court, November 25, 2003.
Order of Court, November 25, 2003.
Defendant's Notice of Appeal, filed December 12, 2003.
Order of Court, November 25, 2003.
l0 Defendant's Concise Statement of Matters Complained of on Appeal, filed December 30, 2003.
2
E. Guido of this court.~ The rationale for this disposition has been set forth in an
opinion by Judge Guido written pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), and is adopted herein by reference. The remaining two matters
complained of on appeal, challenging the sufficiency of the evidence to support
the jury's verdict of guilty of driving under the influence of alcohol, are the
subject of this opinion, also written pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, the
evidence is to be viewed "in the light most favorable to the Commonwealth" and
"all reasonable inferences in the Commonwealth's favor" are to be entertained.
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984). Viewed in this light, the evidence in the present case may be
summarized as follows:
In the early morning hours of Thursday, July 25, 2002,~2 Officer Troy L.
Wiser~3 of the Mount Holly Springs Borough Police Department,~4 was on duty in
the borough in a marked police car.~5 On this occasion, he was monitoring the
speed of vehicles traveling on Baltimore Avenue,~6 a north/south road which
bisects the borough into east and west sections~? and is also known as State Route
34.~8
~ Order of Court, January 30, 2003.
~: Trial N.T. 17-18 (hereinafter N.T.
~3 N.T. 17.
14 N.T. 17.
~5 N.T. 18.
16 N.T. 18.
~7 See N.T. 18-19, 21.
~8 N.T. 21-22, 54.
3
For this purpose, the officer had positioned his vehicle on an east/west
street~9 known as West Butler Street, at its intersection with Baltimore Avenue,
facing eastward.2° Across Baltimore Avenue and about 250 feet ahead on East
Butler Avenue lay a second intersection--that of East Butler Street and Creek
Alley.2~
From his vantage point, Officer Wiser observed the lights of a southbound
car driven by Defendant22 as it executed a right mm from Creek Alley onto East
Butler Street without stopping at a stop sign.23 The approaching car intruded into
the oncoming lane in effecting the mm, coming within a foot and a half of striking
a car parked on the opposite side of the road.24 The driver then made a sudden,
jerky correction to return to his proper lane.25
Defendant's approaching vehicle stopped at a stop sign at the intersection
of East Butler Street and Baltimore Avenue (across from Officer Wiser's
position), and turned left onto Baltimore Avenue, traveling southbound.26 The
officer pulled out from his parking place and began to follow Defendant.27
Defendant's vehicle proceeded to weave conspicuously within its lane of travel,28
and, before entering an intersection, strayed two feet across the double-yellow line
19 N.T. 18, 20-21.
20 N.T. 18.
2~ N.T. 19-20, 138.
22 N.T. 19, 24.
23 N.T. 19. The ability of the officer to determine that a vehicle did not stop in executing such a
turn was corroborated by testimony of a county detective who had examined the scene from the
officer's perspective. N.T. 136-60.
24 N.T. 20.
25 N.T. 20.
26 N.T. 21.
27 N.T. 21.
28 N.T. 21.
4
into the oncoming lane;29 the vehicle was still straddling the double-yellow line as
it completed its transit of the intersection.3°
At the first suitable location, the officer initiated a traffic stop and
determined that Defendant was the driver of the vehicle.3~ Defendant appeared to
Officer Wiser to be intoxicated.32 His eyes were glassy and bloodshot,33 and his
breath had a distinct odor of an alcoholic beverage.34
On a one-leg-stand field sobriety test, Defendant swayed as he received
instructions.35 In performing this thirty-second test, he hopped and put his foot
down during the first ten seconds and during the third ten seconds hopped, raised
his arms for balance, and put his foot down twice.36
On a walk-and-mm field sobriety test, Defendant had to readjust his stance
for balance during the instruction phase.37 During this test, he raised his left arm
to maintain his equilibrium in the first four steps, stepped off the line on the
seventh step, missed heel-to-toe on the ninth step, and missed heel-to-toe on the
fourth and eighth remm steps.3a In the opinion of Officer Wiser, a ten-year
veteran of the borough police department and trained in the administration of
standard field sobriety tests,39 Defendant was under the influence of alcohol to a
degree which rendered him incapable of safe driving.4°
29 N.T. 22.
30 N.T. 22.
3~ N.T. 22-24.
3: N.T. 27.
33 N.T. 27.
34 N.T. 27.
35 N.T. 28-29.
36 N.T. 29.
37 N.T. 30-31.
38 N.T. 31.
39 N.T. 17.
4° N.T. 31.
5
Blood was drawn from Defendant at the Carlisle Hospital for purposes of a
chemical test to determine its alcoholic content, 34 minutes after the stop.4~ The
sample was retained at the borough police station until the following day at 11:55
42
a.m., when the chief of police placed it in his vehicle for transport to a state
police laboratory on Elmerton Avenue in Harrisburg, Pennsylvania, where it was
43
received at 2:48 p.m.
For a certain period during this transit phase, the sample was apparently left
unattended in the chief's parked and locked vehicle.44 However, according to a
forensic scientist who testified on behalf of the Commonwealth, a sample of
blood, containing the proper amount of preservative, would, if anything, have a
tendency to lose ethanol content if overheated rather than test too high.45 The
BAC test result in Defendant's case was. 12%.46
Following the withdrawal of blood at the Carlisle Hospital, Defendant was
taken to a booking center to be processed,47 arriving 48 minutes after being
observed by the officer.48 At the booking center, his eyes were glassy and
bloodshot, his breath smelled of an alcoholic beverage, and he swayed and walked
with a stumbling, staggering gait.49 The booking agent also found him to be
argumentative. 5°
4~ N.T. 32, 53.
42 N.T. 34, 71-72.
43 N.T. 70-74, 90-91.
44 N.T. 74-75.
45 N.T. 105.
46 N.T. 97-98.
47 N.T. 34.
48 N.T. 18, 112.
49 N.T. 113-14.
5° N.T. 113.
6
At trial, Defendant admitted that he had consumed three beers at a bar in
Mount Holly Springs before being stopped,5~ and had drunk two beers at a friend's
house prior to going to the bar.52 However, he denied that he had been
intoxicated.~3
DISCUSSION
Statement of Law
Test for sufficiency of the evidence. On a challenge to the sufficiency of the
evidence in a criminal case, the proper test is "whether, viewing the evidence
admitted at trial in the light most favorable to the Commonwealth and drawing all
reasonable inferences in the Commonwealth's favor, there is sufficient evidence to
enable the trier of fact to find every element of the [crime] charged beyond a
reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d
1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96,
478 A.2d 1286, 1288 (1984). The trier of fact is "free to believe all, part or none
of the evidence." Commonwealth v. Petaccio, 2000 Pa. Super. 384, 764 A.2d 582,
585 (Pa. Super. Ct. 2000), quoting Commonwealth v. Griscavage, 512 Pa. 540,
543,517 A.2d 1256, 1257 (1986).
Driving under the influence incapable of safe driving. With respect to
driving under the influence of alcohol in violation of Section 373 l(a)(1) of the
Vehicle Code, it is provided as follows:
(a) Offense defined. - A person shall not drive, operate or
be in actual physical control of the movement of a vehicle...
(1) [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. §3731(a)(1) (2003
Supp.).
5~ N.T. 169.
52 N.T. 168.
53 N.T. 173.
7
The elements of this form of the offense have been described by the
Pennsylvania Superior Court in the following terms:
In order to prove a violation of this section, the Commonwealth
must show: (1) that the defendant was the operator of
a... vehicle and (2) that while operating the vehicle, the
defendant was under the influence of alcohol to such a degree
as to render him or her incapable of safe driving. To establish
the second element, it must be shown that alcohol has
substantially impaired the normal mental and physical faculties
required to safely operate the vehicle. 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. Evidence that the
driver was not in control of himself, such as failing to pass a
field sobriety test, may establish that the driver was under the
influence of alcohol to a degree which rendered him incapable
of safe driving ....
Commonwealth v. Smith, 2003 Pa. Super. 301, 831 A.2d 636, 638 (Pa. Super. Ct.
2003), quoting Commonwealth v. Palmer, 751 A.2d 223,287 (Pa. Super. Ct. 2000)
(citations and footnote omitted).
Common indicia of driving under the influence of alcohol include erratic
driving,54 unsafe driving,55 glassy, bloodshot eyes,56 the odor of an alcoholic
beverage,57 a staggering gait,58 swaying,59 lack of coordination associated with the
54 See Commonwealth v. Montini, 712 A.2d 761 (Pa. Super. Ct. 1998); Commonwealth v.
Carlson, 705 A.2d 468 (Pa. Super. Ct. 1998).
ss See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v.
Lawrentz, 453 Pa. Super. 118, 683 A.2d 303 (1996); Commonwealth v. Petro, No. 94-1619
(Cumberland Co. Nov. 1, 1995).
56 See Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000); Commonwealth v. Nocotra,
425 Pa. Super. 600, 625 A.2d 1259 (1993); Commonwealth v. Hanes, 397 Pa. Super. 38, 579
A.2d 920 (1990); Commonwealth v. McClellan, 42 Cumberland L.J. 312 (1993).
s7 See Commonwealth v. Fick, 391 Pa. Super. 625,571 A.2d 1091 (1990); Commonwealth v. Lutz,
443 Pa. Super. 262, 661 A.2d 405 (1995); Commonwealth v. Fairley, 298 Pa. Super. 236, 444
A.2d 748 (1982); Commonwealth v. Petro, No. 94-1619 Criminal Term (Cumberland Co.
November 1, 1995); Commonwealth v. McClellan, 42 Cumberland L.J. 312 (1993).
s8 See Commonwealth v. Verticelli, 451 Pa. Super. 22, 678 A.2d 379 (1996) (overturned on other
grounds by Commonwealth v. Taylor, 574 Pa. 390, 831 A.2d 587 (2003); Commonwealth v.
Proctor, 425 Pa. Super. 527, 625 A.2d 1221 (1993).
8
performance of field sobriety tests,® and an admission of drinking on the part of
the driver.6~ In addition, depending upon his or her training, experience and
observations, "a police officer who has perceived a defendant's appearance and
acts is competent to express an opinion as to the defendant's state of intoxication
and ability to safely drive a vehicle.62 Finally, by a permissible statutory
inference, a finder of fact may conclude that a person who is operating a vehicle
with a BAC level of. 10% or greater is doing so under the influence of alcohol to a
degree which renders him or her incapable of safe driving.63
Not all of these factors, of course, must be present in a given case to permit
a finding of guilt. See, e.g., Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa.
Super. Ct. 2000); Commonwealth v. Montini, 712 A.2d 761, 768 (Pa. Super. Ct.
1998); Commonwealth v. Feathers, 442 Pa. Super. 490, 502-03, 660 A.2d 90, 95-
96 (1995).
Driving under the influence BAC level of. 10% or greater. With respect
to driving under the influence of alcohol in violation of Section 373 l(a)(4) of the
Vehicle Code, it is provided as follows:
(a) Offense defined. - A person shall not drive, operate or
be in actual physical control of the movement of a vehicle...
(4) [w]hile the amount of alcohol by weight
in the blood of... an adult is 0.10% or
greater ....
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a)(4)(i) (2003
Supp).
59 See Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988).
60 See Commonwealth v. Robinson, 2003 Pa. Super. 383,834 A.2d 1160 (2003).
61 Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986); Commonwealth v.
Feathers, 442 Pa. Super. 490, 660 A.2d 90 (1995); Commonwelth v. Cave, 219 Pa. Super. 512,
281 A.2d 733 (1971).
62 Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. Ct. 2000), citing Commonwealth v.
Feathers, 442 Pa. Super. 490, 501,660 A.2d 90, 95 (1995).
63 See Commonwealth v. Crum, 362 Pa. Super. 110, 523 A.2d 799 (1987); Act of June 17, 1976,
P.L. 162, §1, as amended, 75 Pa. C.S. §1547(d)(3)(i) (2003 Supp.).
9
By statute in Pennsylvania, where a BAC level is based upon a sample
obtained within three hours of driving, the test result is . 10% or greater, and no
expert testimony or other evidence effectively contradicts the inference, the trier of
fact may infer that the operator's BAC level was . 10% or greater at the time of
driving. Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a. 1)
(2003 Supp.).
Application of Law to Facts
In the present case, with respect to the offense of driving under the
influence of alcohol to a degree which renders the person incapable of safe driving
in violation of Section 3731(a)(1) of the Vehicle Code, all of the factors
mentioned above as tending to prove the guilt of a defendant were present·
Defendant drove erratically by swerving back into his correct lane in a jerky
manner and weaving within his lane, drove in an unsafe manner by intruding twice
into the oncoming lane, on one occasion nearly striking a parked vehicle,
evidenced glassy, bloodshot eyes, an odor of an alcoholic beverage, and a
staggering, stumbling gait and swaying stance, demonstrated a lack of
coordination in field sobriety tests, and admitted to the consumption of alcohol
prior to driving; in the opinion of an experienced police officer, Defendant was
under the influence of alcohol to a degree that rendered him incapable of safe
driving; and his BAC level was greater than. 10%.
With respect to the offense of driving at a time when one's BAC level is
· 10% or greater, the test result on a sample of Defendant's blood drawn within 34
minutes of his driving was .12%. No expert testimony contradicted the
permissible inference that his level was. 10% or greater at the time of driving, and
indeed the testimony received at trial tended to indicate that, if anything, the test
result was conservative.
For the foregoing reasons, it is believed that the evidence was more than
adequate to show that Defendant was, on the occasion in question, driving under
the influence of alcohol to a degree that rendered him incapable of safe driving,
10
and that he was driving at a time when his BAC level was .10% or greater.
Consequently, it is believed that the judgment of sentence appealed from was
properly imposed.
BY THE COURT,
Michael W. Mervine, Esq.
Senior Assistant District Attorney
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
J. Wesley Oler, Jr., J.
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
11