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HomeMy WebLinkAboutCP-21-CR-2482-2002COMMONWEALTH JAMES R. DALESSANDRO OTN: L130126-3 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA :CHARGES: (1) (2) (3) (4) REGISTRATION AND CERTIFICATE OF TITLE (SUM.) CARELESS DRIVING (SUM.) DRIVING UNDER THE INFLUENCE RESTRICTION ON ALCOHOLIC BEVERAGES (SUM.) : No. 02-2482 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., January 14, 2004. In this criminal case, Defendant was found guilty, following a bench trial, of driving under the influence of alcohol in violation of Section 373 l(a)(1) of the Vehicle Code,~ graded a misdemeanor of the first degree as applied to Defendant] The trial was preceded by a ruling adverse to Defendant on a motion to suppress arising out of an alleged violation of the Municipal Police Jurisdiction Act.3 Defendant was sentenced on September 30, 2003, to the mandatory minimum sentence prescribed by statute for a third offense.4 From the judgment of sentence, Defendant has filed a direct appeal to the Pennsylvania Superior Court. S The issues being pursued on appeal have been expressed in a statement of matters complained of on appeal by Defendant as follows: 1 Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. §3731(a)(1) (2003 Supp.). 2 Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. §3731(e)(1) (2003 Supp.). ~ Order of Court, February 11, 2003 (Bayley, J.). 4 Order of Court, September 30, 2003; see Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. §3731(e)(1)(iii). Defendant remains at liberty on unsecured monetary bail pending disposition of his direct appeal from the judgment of sentence. Order of Court, September 30, 2003. 5 Defendant's Notice of Appeal, filed October 30, 2003. 1. Per the previous Court Order dated 31 October, 2003,6 Appellant alleges that a violation of the Municipal Police Jurisdiction Act occurred at the time of Appellant's arrest. 2. Appellant asserts that there was insufficient evidence to convict him beyond a reasonable doubt of Title 75 Pa. CS. 3731(a)(1) whereby alcohol was not a factor in any unsafe driving alleged by the Commonwealth .... 7 The rationale for the adverse pretrial ruling on Defendant's suppression motion is contained in an opinion by the Honorable Edgar B. Bayley of this court, which is adopted herein by reference.8 The present opinion in support of the judgment of sentence as it relates to the sufficiency of the evidence is 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. Common~vealth v. Jones, 449 Pa. Super. 58, 60-61, 672 A.2d 1353, 1354 (1996), quoting Common~vealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). Viewed in accordance with this rule, the evidence in the present case may be summarized as follows: Police Officer Troy L. Wiser of the Mount Holly Springs Borough Police Department in Cumberland County, Pennsylvania, was driving north in the borough on State Route 34, a two-lane road also known as Baltimore Avenue (and as Yates Street, south of an intersection with State Route 94), at about 11:30 p.m. 6 The correct date of the order referred to is February 11, 2003. 7 Defendant's Pa. R.A.P. 1925(b) Concise Statement of Matters Complained upon on Appeal, filed November 24, 2003. 8 See Opinion, Commonwealth v. D'Alessandro, No. 02-2482 Crim. T. (December 16, 2003) (Bayley, J.). 2 on Saturday, August 9, 2002.9 Accompanying the officer in the marked police car was the borough's mayor, Gregory Hair.l° As Officer Wiser was proceeding on Route 34, a pick-up truck being driven by Defendant passed him going in the opposite direction. Il As the truck passed, it strayed about two and a half feet over the white fog line. 12 The officer turned his police car around and began following the truck south on Route 34.13 During this period, the truck displayed a pattern of continuous weaving on the highway, crossing the double-yellow center line more than five times,TM exhibiting jerky corrective movements,15 and nearly striking a guardrail. 16 Officer Wiser activated his emergency lights in advance of a safe pull-off area to effect a traffic stop, but Defendant did not comply with the signal by pulling off the roadway at that point and the officer eventually accomplished the stop outside the borough by the use of a siren.17 The odor of an alcoholic beverage emanated from the truck,la Defendant's eyes were glassy and bloodshot,19 his speech was slurred,2° he fumbled attempting to retrieve his driver's license, 9 Trial Transcript, July 30, 2003, at 4, 6-9, 11. l0 N.T. 7, 41, 43. In a Pennsylvania borough, the mayor is in charge of the police department. Act of February 1, 1966, P.L. (1965) __, No. 581, §1121, 53 P.S. §46121; see also Act of February 1, 1996, P.L. (1965) ~ No. 581, §1029, 53 P.S. §46029. ~ N.T. 9-10, 13, 15. ~: N.T. 9. ~ N.T. 9-10. ~4 N.T. 10-11. ~s N.T. 10. ~6 N.T. 11. ~7 N.T. 12-13. The officer testified that safety concerns arising out of the unavailability of a satisfactory pull-off area caused him to refrain from initiating a stop of Defendant's truck before it had crossed the borough line. N.T. 12, 39-40. ~8 N.T. 14. 19 N.T. 14. :0 N.T. 14. 3 registration certificate and proof of insurance,2~ he stumbled and nearly fell when he got out of the truck,2~ he walked with a staggering gait,~3 and he swayed when standing.~4 A half-empty can of Bud Light beer was situated under the driver's seat.25 Officer Wiser, who testified to having been a police officer for thirteen years, to having been trained at the police academy in the detection of drunk driving, to having received biennial certifications in the administration of field sobriety tests since 1991, and to having made between 300 and 400 arrests for driving under the influence,26 subjected Defendant to walk-and-mm and one-leg- stand field sobriety tests.~7 With respect to the first test, Defendant was unable to maintain his balance while receiving instructions,~8 was unable to walk heel-to- toe,29 was unable to maintain his equilibrium without extending his arms,3° and was unable to adhere to the prescribed line.3~ With respect to the second test, Defendant was unable to keep one foot elevated for more than a few seconds.3~ He abandoned this test with the comment that "I can't even do this test when I'm sober.''33 He attributed his erratic driving 2~ N.T. 14-15. 22 N.T. 15. 23 N.T. 15. 24 N.T. 15. 25 N.T. 19. 26 N.T. 4-5, 40. 27 N.T. 16-18. 28 N.T. 16. 29 N.T. 17. 30 N.T. 17. 3~ N.T. 17. 32 N.T. 18. 33 N.T. 18. 4 to a decision by his girlfriend to perform oral sex on him as they returned home after shopping.34 Officer Wiser testified that, in his opinion, Defendant was intoxicated to a degree that rendered him incapable of safe driving.35 After being placed under arrest, Defendant refused the officer's request that he submit to a chemical test, based upon either a blood or breath sample, to determine the alcoholic content of his blood.36 DISCUSSION Test for sufficiency of 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, 60-61, 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, 764 A.2d 582, 585 (Pa. Super. Ct. 2000), quoting Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). Elements of offknse. With respect to driving under the influence 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. 34 N.T. 31-32, 66-68. 35 N.T. 18, 21-22. 36 N.T. 20-21. The breath test was offered by the officer when Defendant premised his refusal to submit to a test upon using a sample of his blood upon a reluctance to part with any of his blood. Id. 5 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a)(1) (2003 Supp.). In discussing the elements of this offense, the Pennsylvania Superior Court has stated the following: 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, notwithstanding the absence of evidence of erratic or unsafe driving. Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. Ct. 2003), quoting Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. Ct. 2000) (citations and footnotes omitted). Opinion of police officer. 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." Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. Ct. 2000), citing Commonwealth v. Feathers, 442 Pa. Super. 490, 502, 660 A.2d 90, 95 (1995). Test refusal. By statute, it is provided that, "[i]n any.., criminal proceeding in which the defendant is charged with a violation of section 3731... of [the Vehicle Code]..., the fact that the defendant refused to submit to chemical testing.., may be introduced in evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this 6 evidence but it may be considered along with other factors concerning the charge. Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1547(e) (2003 Supp.). Indicia of driving under the influence. Common indicia of driving under the influence of alcohol include erratic driving,37 unsafe driving,38 glassy, bloodshot eyes,39 slurred speech,4° difficulty retrieving paperwork,4~ the odor of an alcoholic beverage,42 the presence of an open container of alcohol in the vehicle,43 a staggering gait,44 swaying,45 an admission to intoxication or the consumption of alcohol,46 and lack of coordination associated with the performance of field sobriety tests.47 Not all of these indicia, of course, are necessary to sustain a conviction in a given case. See, e.g., Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. Ct. 2000); Commonwealth v. Montini, 712 A.2d 761, 768 (Pa. 37 See Commonwealth v. Montini, 712 A.2d 761 (1998); Commonwealth v. Carlson, 705 A.2d 468 (Pa. Super. Ct. 1998). 38 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). 39 Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. Ct. 2000); Commonwealth v. Nicotra, 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). 40 See Commonwealth v. Nicotra,, 425 Pa. Super. 600, 625 A.2d 1259 (1993). 4~ See Commonwealth v. Kowalek, 436 Pa. Super. 361,647 A.2d 948 (1994). 42 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). 43 See Commonwealth v. Kendall, 2001 Pa. Super. 42, 767 A.2d. 1092 (2001). 44 See Commonwealth v. Ferticelli, 451 Pa. Super. 22, 678 A.2d 379 (1996) (overruled on other grounds by commonwealth v. Taylor, 831 A.2d 587 (Pa. 2003)); Commonwealth v. Proctor, 425 Pa. Super. 527, 625 A.2d 1221 (1993). 45 See Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26 (1988). 46 See Commonwealth v. Leighry, 693 A.2d 1324 (Pa. Super. Ct. 1997). 47 See Commonwealth v. Robinson, 2003 Pa. Super. 383,834 A.2d 1160 (2003). 7 Super. Ct. 1998); Commonweal& v. Feathers, 442 Pa. Super. 490, 502-03, 660 A.2d 90, 95-96 (1995). In the present case, all of the recited indicia were present. Defendant displayed erratic driving in the form of weaving outside of his lane and jerky corrective actions, unsafe driving in the form of a near-collision with a guardrail, glassy and bloodshot eyes, and slurred speech; he fumbled with his paperwork; the odor of an alcoholic beverage emanated from the area he was occupying; his vehicle contained an open beer can under his seat; he staggered, swayed, implied that he considered himself intoxicated, and lacked the coordination necessary to perform field sobriety tests. In addition, the opinion of an experienced officer who was present at the scene was that Defendant was intoxicated to a degree which rendered him incapable of safe driving. Finally, Defendant declined to submit to a chemical test, which would have determined the alcoholic content of his blood, under circumstances not suggestive of any motivation other than a concern that the result would have been unfavorable. Given the foregoing, the court was of the view that the evidence was more than sufficient to support a conclusion, beyond a reasonable doubt, that Defendant was operating a vehicle (upon a public highway) at a time when he was under the influence of alcohol to a degree that substantially impaired his normal mental and physical faculties so as to render him incapable of safe driving. BY THE COURT, Office of the District Attorney Paul B. Orr, Esq. Attorney for Defendant J. Wesley Oler, Jr., J. 8