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Home My WebLink AboutCP-21-CR-2258-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOHN ROBERT PEARSON CP-21-CR-2258-2004 IN RE: BENCH TRIAL OPINION AND VERDICT Bayley, J., February 11, 2005:-- On January 25, 2005, a bench trial was conducted on counts charging defendant with driving under the influence,1 following too closely,2 and driving under suspension, DUI related.3 We find the following facts.4 On July 4,2004, while on patrol at 2:28 a.m., Officer Robert Ressler, of the West Shore Regional Police Department saw a Chevrolet traveling west on Market Street in his police jurisdiction. The vehicle was ten feet or less behind a motorcycle, with both traveling at the speed limit of 25 miles per hour. Officer Ressler followed for a little over one-half a mile on the two lane street. Neither the distance between the Chevrolet and the motorcycle nor their speed changed. The motorcycle then pulled to the right 175 Pa.C.S. S 3802(a)(2). General impairment (.08 - .10) (first overall, first mandatory). An ungraded misdemeanor. 275 Pa.C.S. S 3310. A summary offense. 375 Pa.C.S. S 1543(b)(1.1 )(i). A misdemeanor in the third degree. 4 The Commonwealth withdrew a charge of driving under the influence based on general impairment alone under 75 Pa.C.S. Section 3802(a)(1). CR-21-CR-2258-2004 allowing the Chevrolet to pass. The motorcycle pulled back into the travel lane at which time Officer Ressler turned on his lights, passed the motorcycle, and stopped defendant in the 1300 block of Market Street. The officer smelled a strong odor of alcohol on defendant's breath. He noticed that defendant's eyes were bloodshot, his hand motions were slow, and he fumbled his cards. Defendant showed the officer an identification card and said he did not have a license. Officer Ressler asked defendant if he had been drinking. Defendant said he had one beer at home, and one at a club in Harrisburg. The officer had defendant get out of his car. Defendant performed field sobriety tests. Officer Ressler was then of the opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving. He arrested defendant, put him in the patrol car, and took him to a booking center. Defendant consented to a breath test on an Intoxilyzer 5000. At 3:29 a.m., the test of his blood alcohol content was .088 percent. The Pennsylvania Department of Transportation, Bureau of Driver Licensing, notified defendant on August 3, 1999, that he was suspended for one year effective June 23, 2001, for a chemical test refusal on June 24, 1999. Defendant's license has not been restored. The Commonwealth and defendant agree that the .088 percent test of his blood alcohol content on the Intoxilyzer 5000 at 3:29 a.m. was a valid test. The Commonwealth has proven beyond a reasonable doubt that defendant is guilty of violating Section 3802(a)(2) of the Vehicle Code, that provides: An individual may not drive, operate or be in actual physical control -2- CR-21-CR-2258-2004 of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.08% but less than 0.10% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. The Vehicle Code at 75 Pa.C.S. Section 3310(a) provides: General rule.- The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway. Officer Ressler testified that defendant should have been at least three car lengths behind the motorcycle in order to avoid an accident if the motorcycle came to a sudden stop. In Commonwealth v. Bybel, 779 A.2d 523 (Pa. Super. 2001), a state trooper on Interstate 80 saw a vehicle operated by the defendant follow two to three feet behind a tractor-trailer in a passing lane when both vehicles were traveling the 65 mile per hour speed limit in good driving conditions. The Superior Court of Pennsylvania affirmed the summary conviction of defendant for violating Section 3310(a) of the Vehicle Code. The Court cited Commonwealth v. Phinn, 761 A.2d 176 (Pa. Super. 2000), where a trooper testified that a vehicle operated by defendant followed less than a motorcycle-length distance behind a tractor-trailer traveling 55 miles per hour on Interstate 80. That Court concluded that the evidence reflected a hazard within the contemplation of Section 331 O(a). In Bybel, the Court stated: The same conclusion holds here, for the Commonwealth presented evidence that Appellant not only tailgated the tractor trailer, but also compromised safety on the Interstate in the process. Even with good -3- CR-21-CR-2258-2004 driving conditions that night, Trooper Piccini testified, Appellant could not have avoided a collision if the tractor trailer had cause to brake suddenly. In the case sub judice, while the speed of the motorcycle and the Chevrolet were a constant 25 miles per hour, defendant tailgated the motorcycle at ten feet or less for a little over one-half a mile. The operator of the motorcycle then pulled over and defendant passed. On these facts, and the opinion of Officer Ressler, the Commonwealth has proven beyond a reasonable doubt that the operation by defendant of his vehicle was hazardous in that he followed the motorcycle more closely than was reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the street. A certified driving history dated July 4, 2004, from the Pennsylvania Department of Transportation, Bureau of Driving Licensing, that was admitted into evidence shows that John R. Pearson was issued Driver's License No. 25610185. His address is listed as 400 Mulberry Street, Newport, Pennsylvania 17074. The status of his driver's license is under suspension. The certification sets forth the following pertinent dispositions: 1. VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: J U N 15 1996 CRIMES CODE: 6308 UNDERAGE ALCOHOL OFFENSE JUN 01 1998 SUSPENSION FOR 1 YEAR(S) EFFECTIVE JUN 23 1998 OFFICIAL NOTICE MAILED JUN 23 1998 -4- CR-21-CR-2258-2004 2. VIOLATION DATE: MAR 13 1998 VIOLATION: CRIMES CODE: 6308 DESCRIPTION: UNDERAGE ALCOHOL OFFENSE CONVICTION DATE: MAY 181998 ACTION: SUSPENSION FOR 2 YEAR(S) EFFECTIVE JUN 23 1999 OFFICIAL NOTICE MAILED OCT 27 1998 3. VIOLATION DATE: JUN 24 1999 VIOLATION: VEHICLE CODE: 1547 DESCRIPTION: CHEMICAL TEST REFUSAL ACTION: SUSPENSION FOR 1 YEAR(S) EFFECTIVE JUN 232001 OFFICIAL NOTICE MAILED AUG 03 1999 4. VIOLATION DATE: MAY 21 1999 VIOLATION: CRIMES CODE: 6308 DESCRIPTION: UNDERAGE ALCOHOL OFFENSE CONVICTION DATE: JUL 22 1999 ACTION: SUSPENSION FOR 2 YEAR(S) EFFECTIVE JUN 232002 OFFICIAL NOTICE MAILED AUG 09 1999 5. VIOLATION DATE: MAY 21 1999 VIOLATION: CRIMES CODE: 6308 DESCRIPTION: UNDERAGE ALCOHOL OFFENSE CONVICTION DATE: JUL 22 1999 ACTION: SUSPENSION FOR 2 YEAR(S) EFFECTIVE JUN 232004 OFFICIAL NOTICE MAILED AUG 09 1999 -5- CR-21-CR-2258-2004 6. VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: 7. VIOLATION DATE: VIOLATION: DESCRIPTION: CONVICTION DATE: ACTION: MAR 02 2003 VEHICLE CODE: 1543A DRIVING WHILE SUSPIREVOKE MAR 05 2003 SUSPENSION FOR 1 YEAR(S) EFFECTIVE DEC 06 2007 OFFICIAL NOTICE MAILED MAR 13 2003 SEP 02 2003 VEHICLE CODE: 1543B DRVNG UNDR ALCHOL REL SUS OCT 31 2003 SUSPENSION FOR 1 YEAR(S) EFFECTIVE DEC 06 2008 OFFICIAL NOTICE MAILED NOV 202003 AFFIDAVIT RECEIVED SEP 07 1999 (Emphasis added.) Defendant had admitted into evidence a certification of the Department dated August 24, 2004, that contains copies of four documents that constitute the notice of suspension sent to him on August 3, 1999, at 524A Market Street, Newport, Pennsylvania 17074. That notice advised defendant that he was suspended for one year effective June 23, 2001, for failure to undertake a chemical test on June 24, 1999. Because defendant has never had his license restored since that suspension, it forms the basis for the Commonwealth now charging him with driving under suspension, DUI related. Commonwealth v. Nuno, 385 Pa. Super. 6 (1989). Defendant argues that the Commonwealth has not proven beyond a reasonable doubt that he received the August 3, 1999 notice of suspension for failure to undertake a chemical test; therefore, -6- CR-21-CR-2258-2004 he cannot now be convicted of driving after suspension, DUI related.5 In Commonwealth v. Kane, 460 Pa. 582 (1975), the Supreme Court of Pennsylvania held that the Commonwealth must prove beyond a reasonable doubt that defendant received actual notice that his operating privileges were suspended before he may be convicted of driving under suspension. The Commonwealth may not satisfy this requirement merely by introducing evidence that the Department of Transportation sent a suspension notice to the defendant by first-class mail. Id. Subsequent to Kane, decisions of the Superior Court of Pennsylvania have held that the Commonwealth may prove actual notice where additional evidence is presented which implies that defendant received actual notice. In Commonwealth v. Minor, 647 A.2d 229 (Pa. Super. 1994), the Superior Court concluded that a defendant's failure to provide the Department of Transportation with a current address precluded his reliance on a defense of lack of notice of an underlying suspension. In Commonwealth v. Gray, 356 Pa. Super. 299 (1986), the Superior Court held that notice was sufficient when mailed to a correct address and defendant had previously surrendered his license in response to a notice mailed to him at the same address. In the present case, defendant's driving privilege has been continuously suspended since June 23, 1998. When he was stopped by Officer Ressler on July 4, 2004, he told the officer that he did not have a license. Defendant's license was suspended effective June 23, 1998, by a notice mailed to him that date for a conviction 5 Defendant did not testify. -7- CR-21-CR-2258-2004 of an underage alcohol offense. Another notice was mailed to him on October 27, 1998, suspending him again for an underage alcohol offense. When the Department sent defendant a notice on August 3, 1999, of an additional one year suspension effective June 23, 2001 for a chemical test refusal, it would have been sent to the same address as for his previous suspensions unless he had changed his address with the Department during that period. Accordingly, by direct and circumstantial evidence, the Commonwealth has proven that defendant had notice of his suspension for failure to take a chemical test. That he subsequently notified the Department of a change of address from 524A Market Street, Newport, to 400 Mulberry Street, Newport, Pennsylvania, is of no import. For the foregoing reasons, the following verdict is entered. VERDICT AND NOW, this day of February, 2005, I find defendant GUILTY of driving under the influence of alcohol in violation of 75 Pa.C.S. Section 3802(a)(2), an ungraded misdemeanor, careless driving in violation of 75 Pa.C.S. Section 3310, a summary offense, and driving under suspension, DUI related, in violation of 75 Pa.C.S. 1543(b)(1.1 )(i), a misdemeanor in the third degree. A driving under the influence report is ordered. Defendant is ordered to appear for sentencing in Courtroom Number 2 on Tuesday, April 5, 2005, at 1 :30 p.m. -8- CR-21-CR-2258-2004 Geoffrey Mcinroy, Esquire Assistant District Attorney Michael Schechterly, Esquire 20 N. 6th Street Newport, PA 17074 F or Defendant Probation Court Administrator :sal By the Court, Edgar B. Bayley, J. -9- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOHN ROBERT PEARSON CP-21-CR-2258-2004 IN RE: BENCH TRIAL VERDICT AND NOW, this day of February, 2005, I find defendant GUILTY of driving under the influence of alcohol in violation of 75 Pa.C.S. Section 3802(a)(2), an ungraded misdemeanor, careless driving in violation of 75 Pa.C.S. Section 3310, a summary offense, and driving under suspension, DUI related, in violation of 75 Pa.C.S. 1543(b)(1.1 )(i), a misdemeanor in the third degree. A driving under the influence report is ordered. Defendant is ordered to appear for sentencing in Courtroom Number 2 on Tuesday, April 5, 2005, at 1 :30 p.m. By the Court, Edgar B. Bayley, J. Geoffrey Mcinroy, Esquire Assistant District Attorney Michael Schechterly, Esquire 20 N. 6th Street Newport, PA 17074 F or Defendant Probation CR-21-CR-2258-2004 Court Administrator :sal -2-