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HomeMy WebLinkAboutCP-21-CR-1887-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JUSTO L. VEGA : CP-21-CR-1887-2008 IN RE: MOTION OF DEFENDANT FOR POST-SENTENCE RELIEF OPINION AND ORDER OF COURT Bayley, J., June 16, 2009:-- On January 23, 2009, a jury convicted defendant, Justo L. Vega, of driving under the influence, general impairment, and driving under the influence, general impairment 1 with refusal. The charges arose out of a single incident on February 18, 2008. The two counts merged for sentencing and defendant was sentenced on May 11, 2009, on the count of driving under the influence, general impairment with refusal, a misdemeanor one that carried the highest penalty, to pay the costs of prosecution, a $1,000 fine and undergo imprisonment in the Cumberland County Prison for a term not 2 less than 90 days or more than five years. Defendant filed a motion for post-sentence relief which was briefed and argued on June 12, 2009. The evidence in a light most favorable to the Commonwealth was as follows. Michael Ott, a fire police officer in Silver Spring Township arrived via a dispatch at the scene of an accident on Route 114 at 11:18 p.m. on February 18, 2008. Traffic cones __________ 1 75 Pa.C.S. § 3802(a)(1). 2 Ninety days was the mandatory minimum sentence. Defendant has a prior DUI CP-21-CR-1887-2008 were put out to divert traffic from two lanes into the right lane because of debris from the accident on the road. Defendant drove through the traffic cones and stopped near Ott’s rescue truck. Ott asked him why he drove through the cones and defendant said he was waiting to have things cleared up and mumbled some other things that Ott did not understand. Ott asked him to move his vehicle. Defendant had trouble getting it into gear. He then drove to the right over another cone which wedged into the rear of his front tire. Officer Deborah Snyder was summoned. She talked to Ott and to defendant. She smelled a very strong odor of beer on defendant’s breath and saw several open cans of Milwaukee beer on the right front floor of his vehicle. There were 3 also several unopened cans of Milwaukee Lite Beer. Officer Andrew Wolfe arrived. He talked to Officer Snyder who told him what she had learned and asked him to speak to the driver and conduct field sobriety tests. Officer Wolfe saw that defendant had bloodshot and lazy eyes. His speech was slurred and he had an odor of alcohol on his breath. Officer Wolfe had defendant get out of his vehicle. As he walked to the rear he fell forward and caught himself on the vehicle. Officer Wolfe asked defendant if he had any medical impairment. Defendant said “No.” Defendant swayed in place and his balance was poor. At this point, Officer Wolfe detected an extremely strong odor of alcohol on his breath. The officer conducted a walk and turn and a one-leg stand test conviction in 2006. 3 Officer Snyder took pictures of opened and unopened cans of beer which were admitted into evidence as Commonwealth Exhibit No. 3. -2- CP-21-CR-1887-2008 which defendant performed poorly. Officer Wolfe arrested defendant for driving under the influence and took him to a booking center. During the ride defendant was belligerent toward the officer saying, among other things, that he would have his job and that he would walk. Upon arrival at the booking center, defendant rammed his head onto the cage in the police vehicle and broke his glasses. At 11:42 p.m., Officer Wolfe read defendant Implied Consent warnings. Defendant refused to take a test of his breath on an Intoxilyzer 5000. Miranda Defendant waived his rights and told a booking agent, Joshua Sheaffer, that he had no physical problems, he was not ill, and he had not had anything alcoholic to drink. Officer Wolfe and Agent Sheaffer were of the opinion that defendant was under 4 the influence of alcohol to a degree that rendered him incapable of safely driving. Defendant briefed and argued two issues in support of his post-sentence motion for a new trial. During closing argument to the jury the District Attorney stated: Now, the Intoxilyzer 5000. You heard all the expert stuff. Don’t you think, common sense, that somebody who by now knows he’s having an attack of this disease would tell somebody, hey, I know I look like I’m drunk, now I’m going to ask you to ignore the strong odor of alcohol and __________ 4 Defendant called Anthony Palacius a driving under the influence consultant to the legal profession. He was critical of the way in which Officer Wolfe conducted the field sobriety tests. Defendant also called Joseph Citron, M.D., a physician from Georgia. He believed that defendant was suffering from long term chronic labyrinthitis, a form of Meniere’s disease. Cognitive functions are impaired by the disease which adversely affects balance and equilibrium. Dr. Citron opined that defendant’s conduct on February 18, 2008, “if you take away the odor of alcohol,” was consistent with an acute phase of labyrinthitis. He acknowledged, however, that defendant’s disease would not cause an odor of alcohol on his breath. -3- CP-21-CR-1887-2008 the beer cans, put that aside, I’ve got this condition, I am not intoxicated and give me that breath test and I’ll show it. MR. MCSHANE: Your Honor, I have to object. That shifts the burden. THE COURT: He can draw reasonable inferences based on the evidence. This is argument in support, and the objection is overruled. He may continue. MR. MCSHANE: It shifts the burden. MR. DAILEY: It’s what happened. You saw him refuse. Do you think the defendant knew that the results were going to be and that’s the reason why he didn’t take the breath test? Ott knew. Snyder knew. Wolfe knew. Sheaffer knew. The defendant knew and you know too. He was under the influence of alcohol. Defendant maintains that the statement by the District Attorney was prejudicial Commonwealth v. DiPietro, so as to require a new trial. He cites 538 Pa. 382 (1994), in support of his position and argues that the facts therein are analogous to those in the DiPietro, present case. In the defendant was alleged to have purposely driven his vehicle over a curb to strike a person for which he was charged with aggravated assault and recklessly endangering another person. Following his arrest a state Miranda trooper informed the defendant of his rights. The defendant stated he would discuss portions of the events surrounding the incident. After relating certain basic facts, the defendant stopped talking. The trooper understood that the defendant did not wish to talk any more. At no time did the defendant tell the trooper that the incident was an accident. Instead, he waited until trial to raise the defense of accident. The prosecutor asked the trooper if during the course of his conversation with the defendant, “did he tell you that this incident was an accident?” The trooper replied, “No.” The trial judge overruled defense counsel’s objection. In closing argument the -4- CP-21-CR-1887-2008 prosecutor stated: [W]hy doesn’t he tell that man, Trooper Harriman, My golly, good grief, what did I do? It was a terrible, terrible accident. I’ve been having this car problem. The brakes are bad. It kept stalling. When do we hear that? We hear that today from the witness stand. We didn’t hear that from any of the police officers. Doesn’t common sense simply tell you that if you’re in that kind of situation, that would be the first thing out of your mouth? [Objection] I would suggest that that would be the first thing out of a man’s mouth when he’s talking to this officer about this specific incident. On neither occasion did the trial court issue a curative instruction. The Supreme Court of Pennsylvania reversed the convictions and ordered a new trial. The court stated that it was reversible error to admit evidence of defendant’s silence at the time of his arrest and the prosecutor’s proceeded to compound the prejudice by exploiting his silence during closing argument. sub judiceMiranda By contrast, in the case defendant waived his rights and gave a statement to the booking officer during which he repeated what he had told Officer Wolfe at the scene that he had no medical impairment - no physical problems. He also stated that he did not have anything alcoholic to drink. The challenged comment of the District Attorney related to defendant having refused to take a breath test to determine any alcoholic content in his blood. That evidence was properly admitted pursuant to the Vehicle Code at 75 Pa.C.S. Section 1547(e). See Commonwealth v. Drake , 681 A.2d 1357 (Pa. Super. 1996). The prosecutor argued a reasonable inference that if defendant had not had any alcohol to drink and was having -5- CP-21-CR-1887-2008 an attack of [labyrinthitis]: “hey, I know I look like I’m drunk, now I am going to ask you to ignore the strong odor of alcohol and the beer cans, put that aside, I’ve got this condition, I am not intoxicated and give me that breath test and I’ll show it.” This was fair comment on the refusal of defendant to take a breath test in a case where he told Miranda the booking officer, after a waiver of rights, that he had not had anything to drink. There was no prejudicial reference to any post-arrest silence that would require the grant of a new trial. Furthermore, defendant’s sole objection to the comment was that it “shifts the burden.” Clearly it did not. The court charged the jury that defendant was presumed innocent, had no burden of proof, and that in order to convict him on the counts of driving under the influence they had to be satisfied that the Commonwealth proved beyond a reasonable doubt each and every element of the offenses. Defendant also maintains that he is entitled to a new trial for failure to charge the 5 jury on the theory of his case. We rejected the following point for charge: REMINDER OF THE JURY AS TO THE FOCUS OF THE CASE This case is not about whether or not Mr. Vega should have his driver’s license or whether or not he should be out on the road driving. You are specifically instructed not to concern yourself with the licensing effects of this case. This means you cannot and must not use a guilty verdict as a way to “keep him off the road” because you may believe him to be a danger for whatever reason. This is a separate matter that will or has been handled by PennDOT. You are here specifically to resolve the controversy between the parties as to the events on this one particular day and whether or not a specific law or none of the laws of the Commonwealth, meaning the two specifically defined counts of DUI as I __________ 5 A trial judge may not refuse to instruct a jury on a particular theory of the case. Commonwealth v. Morgan, 265 Pa. Super. 225 (1979). -6- CP-21-CR-1887-2008 have charged them, was violated by the accused as proven by the Commonwealth with evidence beyond a reasonable doubt. That is all you are to consider. Defendant’s theory of the case was that the way he drove his vehicle and the -7- CP-21-CR-1887-2008 way he presented on the evening of February 18, 2008 was caused by an acute phase of labyrinthitis and not by drinking alcohol. There was no requirement to instruct the jury: [n]ot to concern yourself with the licensing effects of this case. This means you cannot and must not use a guilty verdict as a way to “keep him off the road” because you may believe him to be a danger for whatever reason. This is a separate matter that will or has been handled by PennDOT. These matters were not relevant and were not germane to defendant’s theory of the case. Even if they had been there would still be no reversible error unless it was shown that the failure to provide the charge harmed the party complaining. Commonwealth v. Morgan, supra. Clearly, there is no such showing here. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of June, 2009, the motion of defendant for post- IS DENIED. sentence relief, By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire John Dailey, Esquire For the Commonwealth Justin J. McShane, Esquire For Defendant :sal -8- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JUSTO L. VEGA : CP-21-CR-1887-2008 IN RE: MOTION OF DEFENDANT FOR POST-SENTENCE RELIEF ORDER OF COURT AND NOW, this day of June, 2009, the motion of defendant for post- IS DENIED. sentence relief, By the Court, Edgar B. Bayley, J. Michelle Sibert, Esquire John Dailey, Esquire For the Commonwealth Justin J. McShane, Esquire For Defendant :sal