HomeMy WebLinkAboutCP-21-CR-0001459-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) DRIVING UNDER THE
: INFLUENCE, GENERAL
: IMPAIRMENT
: (2) DRIVING UNDER THE
: INFLUENCE, GENERAL
: IMPAIRMENT W/REFUSAL
: (3) DRIVING UNDER THE
: INFLUENCE, GENERAL
v. : IMPAIRMENT W/ACCIDENT
: (4) ACCIDENT INVOLVING
: DAMAGE TO UNATTENDED
: VEHICLE OR PROPERTY
: (5) CARELESS DRIVING
: (6) IMMEDIATE NOTICE OF
: ACCIDENT TO POLICE
: DEPARTMENT
: (7) DRIVING ON ROADWAYS
: LANED FOR TRAFFIC
DERK EDWARDS :
ROBERTS :
OTN: K656605-5 : CP-21-CR-1459-2008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., March 12, 2009.
In this criminal case, Defendant was found guilty following a trial (a) by a
jury of three forms of driving under the influence and (b) by the court of four
1
summary offenses. As a third-offender for mandatory sentencing purposes, he
received the mandatory minimum sentence required by statute for the most serious
2
form of driving under the influence, and the statutory fines required for the
3
summary offenses.
1
See Order of Court, September 26, 2008.
2
Order of Court, December 2, 2008. The sentencing order with respect to the driving under the
influence charges read as follows:
At Count 1, Driving under the Influence, General Impairment, a
misdemeanor of the second degree, the sentence with respect to this
From the judgment of sentence, Defendant has filed an appeal to the
4
Pennsylvania Superior Court. The bases for the appeal, as expressed in
Defendant’s statement of errors complained of on appeal, are as follows:
1. The evidence was insufficient as a matter of law to establish the
Defendant’s guilt beyond a reasonable doubt on the charge of driving
under the influence, general impairment because there was not sufficient
proof that the Defendant was rendered incapable of safely driving.
2. The evidence was insufficient as a matter of law to establish the
Defendant’s guilt beyond a reasonable doubt on the charge of driving
under the influence, general impairment because there was not sufficient
proof that the Defendant had operated a motor vehicle.
3. The Defendant’s Constitutional right against self-incrimination,
found in the Fifth Amendment of the United States Constitution and
Article One, Section Nine of the Pennsylvania Constitution, was violated
offense is deemed to merge with the other sentences for Driving under the
Influence to be imposed hereinafter.
At Count 2, Driving under the Influence, general impairment with
refusal, a misdemeanor of the first degree, the Defendant is sentenced to
pay the costs of prosecution, a fine of $2500, a $200 CAT Fund surcharge,
and a $10 Emergency Medical Services Fund assessment, and to undergo
imprisonment in the Cumberland County Prison for a period of not less
than 12 months nor more than 24 months, with credit to be given for 3
days previously served. Prior to re-obtaining his Pennsylvania operating
privileges, the Defendant shall comply with the requirements of Section
1541 of the Vehicle Code (Act 122). Eventual parole shall be supervised
by the Cumberland County Probation office.
At Count 3, Driving under the Influence, general impairment with
accident, a misdemeanor of the first degree, the Defendant is sentenced to
pay the costs of prosecution, a fine of $1500, a $200 CAT Fund surcharge,
and a $10 Emergency Medical Services Fund assessment, and to undergo
imprisonment in the Cumberland County Prison for a period of not less
than 9 months nor more than 24 months, with credit to be given for 3 days
previously served. Prior to re-obtaining his Pennsylvania operating
privileges, the Defendant shall comply with the requirements of Section
1541 of the Vehicle Code (Act 122). Eventual parole shall be supervised
by the Cumberland County Probation Office.
* * * *
The sentences imposed herein shall run concurrently with each
other . . . .
3
Order of Court, December 2, 2008.
4
Defendant’s Notice of Appeal, filed February 17, 2009. A post-sentence motion filed by
Defendant, based upon insufficiency of the evidence, was denied on February 2, 2009. Order of
Court, February 2, 2009.
2
when the Defendant made incriminating statements to the police before he
had been read his Miranda rights following an unlawful entry into the
Defendant’s residence, therefore, a new trial should be awarded. Miranda
v. Arizona, 384 U.S. 436 (1966).
4. The Defendant’s right to be free from unreasonable searches and
seizures under Article One, Section Eight of the Pennsylvania Constitution
and the Fourth Amendment of the United States Constitution, was violated
when officers entered the Defendant’s residence without invitation,
warrant, or warrant exception, therefore, a new trial should be awarded.
Wong Sun v. United States, 371 U.S. 471 (1963). All evidence obtained
after the illegal entry must be excluded because such evidence was
obtained during an unlawful intrusion, this includes all verbal evidence
which was derived immediately following the unlawful entry and as such
is fruit of the poisonous tree. Wong Sun, 371 U.S. at 471 (1963);
Commonwealth v. Valenzuela, 597 A.2d 93 (Pa. Super., 1991);
Commonwealth v. Cephas, 447 Pa. 500 (1972); Commonwealth v. Rood,
686 A.2d 442 (Pa.Cmwlth.,1996). Furthermore, the Commonwealth has
failed to sufficiently purge of any taint arising from the illegality. Simply
put, all evidence obtained in violation of the Defendant’s constitutional
rights is inadmissible; therefore a new trial should be awarded. Valenzuela,
5
597 A.2d at 93 (Pa.Super.,1991).
The suppression issues raised in paragraphs 3 and 4 of Defendant’s
statement of errors complained of on appeal relate to a pretrial ruling by the
Honorable Kevin A. Hess of this court on an omnibus pretrial motion for relief
6
filed by Defendant. The rationale for this pretrial ruling has been set forth by
Judge Hess in an opinion dated March 6, 2009, which is incorporated herein by
reference.
The sufficiency-of-the-evidence issues raised in paragraphs 1 and 2 of
Defendant’s statement of errors complained of on appeal will be addressed in the
present opinion, which 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 [a] light most favorable to the Commonwealth” and
“all reasonable inferences in the Commonwealth’s favor” are to be entertained.
5
Defendant’s Concise Statement of Matters Complained of on Appeal, filed February 25, 2009.
6
See Order of Court, September 5, 2008.
3
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, ¶5. 764 A.2d 582, 585, quoting
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).
7
Viewed in this light, the evidence adduced at trial as it related to the issues
of whether Defendant was driving on the occasion of the alleged DUI offenses and
whether he was at the time under the influence of alcohol to a degree that rendered
him incapable of safe driving may be summarized as follows. At 12:26 a.m. on
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Tuesday, December 23, 2006, a red Honda Accord automobile traveling west
on Oxford Road in South Middleton Township, Cumberland County,
1112
Pennsylvania, in the direction of Defendant’s residence, which was 1.3 miles
131415
away, crossed the center line of the two-lane, straight roadway, and crashed
1617
into a utility pole, shearing it off. The car was registered to Connie Mickley,
1819
with whom Defendant resided. The driver eloped from the scene.
7
At trial, four witness testified on behalf of the Commonwealth and 13 Commonwealth exhibits
were admitted; no testimony or exhibits were presented on behalf of Defendant.
8
N.T. 117, Trial, September 25-26, 2008 (hereinafter N.T. __).
9
N.T. 10.
10
N.T. 65.
11
N.T. 10.
12
N.T. 65.
13
N.T. 63.
14
N.T. 65.
15
N.T. 64.
16
N.T. 10.
17
N.T. 11.
18
N.T. 18. 22-23.
19
N.T. 11.
4
2021
Pennsylvania State Trooper Tandy Carey and another trooper arrived at
2223
the scene of the one-vehicle accident, following a 1:26 a.m. dispatch, at 1:50
2425
a.m. The car’s windshield was cracked, the odor of an alcoholic beverage
2627
emanated from its interior, the driver’s side floor contained a spot of blood, and
28
a piece of flesh lay on the center of the steering wheel.
The troopers arrived at the residence of Defendant and Ms. Mickley at 2:20
2930
a.m., where they found them conversing in a lighted back room; Defendant was
31
dressed in street clothes and Ms. Mickley was wearing a nightgown. Ms.
32
Mickley’s breath did not suggest that she had been drinking, nor was any
evidence presented to indicate that she might have been in an accident.
33
Defendant, on the other hand, displayed a bloody lip, for which he later
34
was taken to the hospital, and evidenced various signs of intoxication. Trooper
Carey described these as follows:
I advised him . . . that I was there to investigate a hit and run crash. I
observed the Defendant to have glassy eyes, upon speaking with him
slurred speech, and an odor of alcoholic beverage emanating from his
breath. . . .
20
N.T. 9.
21
N.T 69.
22
N.T. 76.
23
N.T. 10. The accident had been reported to state police by someone at 1:15 a.m. N.T. 120.
24
N.T. 64.
25
N.T. 12.
26
N.T. 11.
27
N.T. 11, 77.
28
N.T. 12, 78, 97, 99, 103.
29
N.T. 66.
30
N.T. 18.
31
N.T. 29.
32
.
N.T. 105
33
N.T. 24.
34
N.T. 37.
5
35
He was staggering around while we were inside of the kitchen.
36
Trooper Carey, who had joined the Pennsylvania State Police in 2004, and was
professionally experienced with intoxicated persons and driving under the
37
influence cases, testified that, in her opinion, Defendant was under the influence
38
of alcohol to a degree that rendered him incapable of safe driving.
Defendant attributed his lip injury to falling off a ladder outside the
39
residence. He gave conflicting accounts of the events of the prior evening and
early morning. Defendant stated variously (a) that he had driven the vehicle in
question home in the evening after leaving his place of employment at 7:45 p.m.,
40
had stopped nowhere on the way, had arrived home at midnight, and had drunk
41
five beers at his residence; (b) that he had had one drink in the vehicle during the
42
drive home; (c) that he had actually had three beers before arriving at his
43
residence; and (d) that he had been in the vehicle at the time of the crash, but was
44
not driving and did not know who the driver had been. Defendant supported his
initial position that he had consumed five beers at his residence by telling the
45
troopers that the empty cans were sitting on the kitchen counter; however, no
such cans were sitting on the counter, and neither Defendant nor Ms. Mickley
46
produced any such cans.
35
N.T. 24.
36
N.T. 10.
37
N.T. 107.
38
N.T. 33, 106, 108.
39
N.T. 24.
40
N.T. 24-25. Unfortunately, the record contains no information as to where Defendant worked.
41
N.T. 25.
42
N.T. 50.
43
N.T. 36.
44
N.T. 51.
45
N.T. 25.
46
N.T. 26-27.
6
Following his arrest, Defendant refused to submit to a chemical test of his
47
blood.
A comparison of the DNA contained in a sample of Defendant’s blood and
the DNA contained in the tissue found on the vehicle’s steering wheel resulted in a
48
match. More specifically, the Commonwealth’s DNA expert described the match
as follows:
Q . . . In terms of this particular sample, can you quantify the
probability of selecting Mr. Roberts as the person who is the owner,
possessor, depositor of this sample—of this sample on the steering wheel?
A Of the DNA?
Q Yes, of the DNA that’s in the sample?
A The probability of randomly selecting an unrelated individual
exhibiting this combination of DNA types is approximately 1 in 2.0
sextillion from the Caucasian population, approximately 1 in 880
sextillion, from the African American population, and approximately 1 in
1.1 sextillion from the Hispanic population, and I did not use one of the
areas that we test for the statistic calculations. That is what we call the
Amelogenin, a-m-e-l-o-g-e-n-i-n, Amelogenin. That’s the sex determining
gene. So there’s a 50-50 chance that it’s for a boy or a girl. So we don’t
use that for statistical calculations.
Q You said 2.0 sextillion?
A That is correct.
Q How do you write a number like that?
A Two—leave a lot of room.
Q Okay.
A 000,000,000,000,000,000,000.
Q Is that right?
A Twenty-one. That is the Caucasian.
Q So just for Caucasians, if you are worried about that
population, you have a 1 [and] too many 0’s chance of identifying
somebody else?
A No. That is the random probability of randomly selecting an
unrelated individual. And the best way for me to explain that is if you can
imagine—if you can get two sextillion people in a room, what are your
47
N.T. 43, 46.
48
N.T. 170.
7
chances of—if a big hand reached in, what are your chances of randomly
49
selecting this genetic profile from an unrelated individual.
At the conclusion of the trial, the jury found Defendant guilty of (a) driving
under the influence, general impairment, (b) driving under the influence, general
impairment, with refusal, and (c) driving under the influence, general impairment,
50
with accident, and the court found Defendant guilty of the summary offenses of
(a) accident involving damage to unattended vehicle or property, (b) careless
driving, (c) immediate notice of accident to police department, and (d) driving on
51
roadways laned for traffic. From the judgment of sentence, Defendant has filed
52
an appeal to the Pennsylvania Superior Court.
DISCUSSION
Statement of law. 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).
Typical indicia of drunk driving include the odor of an alcoholic beverage
53545556
emanating from the defendant, glassy eyes, slurred speech, staggering gait,
49
N.T. 177-78.
50
Jury verdict slips, September 26, 2008.
51
Order of Court, September 26, 2008.
52
Defendant’s Notice of Appeal, filed February 17, 2009.
53
See, e.g., Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091 (1990); Commonwealth v.
Fairley, 298 Pa. Super. 236, 444 A.2d 748 (1982); Commonwealth v. Petro, No. 94-1619 Crim.
Term (Cumberland Co. Nov. 1, 1995).
54
See Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000).
55
See Commonwealth v. Nicotra, 425 Pa. Super. 600, 625 A.2d 1259 (1993).
8
57
unsafe driving, and the occurrence of a one-vehicle accident suggestive of
58
serious driver error.
Several additional circumstances can be regarded by a trier-of-fact as
tending to support a conclusion that a motorist was guilty of being under the
influence of alcohol to a degree that rendered him or her incapable of safe driving.
These include the opinion of a competent law enforcement officer based upon his
or her observations that the motorist was under the influence of alcohol to a degree
59
that rendered him or her incapable of safe driving, the motorist’s flight from the
60
scene of the alleged crime, and the motorist’s refusal to submit to chemical
61
testing.
Finally, as a general rule a defendant’s proffer of conflicting stories to
police relating to events at issue is a factor tending to support a prosecution based
62
upon those events.
Application of law to facts. With respect to the issue of whether Defendant
was operating the vehicle at the time of the accident, the following circumstances
tended to support an affirmative inference to that effect beyond a reasonable
doubt, in the court’s view: (a) the conflicting versions of the event proffered to law
enforcement authorities by Defendant, (b) the odor of an alcoholic beverage in the
56
See Commonwealth v. Verticelli, 451 Pa. Super. 22, 678 A.2d 379 (1996) (overruled on other
grounds in Commonwealth v. Taylor, 831 A.2d 587 (Pa. 1996); Commonwealth v. Proctor, 425
Pa. Super. 527, 625 A.2d 1221 (1993); Commonwealth v. Dalessandro, 53 Cumberland L.J. 43
(2004).
57
See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v.
Petro, No. 94-1619 Crim. Term (Cumberland Co. Nov. 1, 1995).
58
See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990); Commonwealth v.
Zelinski, 392 Pa. Super. 489, 573 A.2d 569 (1989); Commonwealth v. Petro, No. 94-1619 Crim.
Term (Cumberland Co. Nov. 1, 1995).
59
Commonwealth v. Palmer, 2000 PA Super, 751 A.2d 223 (Pa. Super. Ct. 2000).
60
See Commonwealth v. Paddy, 549 Pa. 47, 800 A.2d 294 (2002).
61
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1547(e) (2008 Supp.);
Commonwealth v. McConnell, 404 Pa. Super. 439, 591 A.2d 288 (1991).
62
See Commonwealth v. Letherman, 320 Pa. 261, 265, 181 A.2d 759, 761 (1935).
9
vehicle and Defendant’s state of intoxication when interviewed shortly after the
accident by law enforcement authorities, (c) Defendant’s admission that he had
driven the vehicle prior to the accident and had been in the vehicle at the time of
the accident, (d) evidence in the vehicle that the driver had been injured at the time
of the accident and Defendant’s injury consistent with that evidence, (e) the match
of Defendant’s DNA with the damaged tissue found on the steering wheel of the
vehicle, (f) ownership of the vehicle by a person with whom Defendant resided,
(g) the consistency of Defendant’s apparel and inconsistency of the owner’s
apparel with recent driving, (h) the proximity of the accident to Defendant’s
residence, (i) the direction of travel of the vehicle toward Defendant’s residence at
the time of the accident, (j) Defendant’s presence in the residence shortly after the
accident, and (k) the consistency of the circumstances of the accident with
operation of a vehicle by an intoxicated person such as Defendant.
Similarly, with respect to the issue of whether Defendant had been under
the influence of alcohol to a degree that rendered him incapable of safe driving at
the time of his operation of the vehicle, the following circumstances tended to
support an affirmative inference to that effect beyond a reasonable doubt, in the
court’s view: (a) Defendant’s admission that he had consumed alcohol after
leaving work and prior to arriving at his residence; (b) the presence of the odor of
an alcoholic beverage in the vehicle following the accident; (c) conflicting stories
proffered to law enforcement authorities by Defendant as to when he had
consumed alcohol, (d) indicia of intoxication displayed by Defendant shortly after
the accident, in the form of glassy eyes, slurred speech, and staggering gait; (e) the
occurrence of a one-vehicle accident in a manner indicative of unsafe driving and
serious driver error; (f) the opinion of a competent law enforcement officer based
upon her observation of Defendant shortly after the accident that he was under the
influence of alcohol to a degree rendering him incapable of safe driving; (g)
Defendant’s flight from the scene of the accident; and (h) Defendant’s refusal to
submit to chemical testing.
10
For the foregoing reasons, it is believed that the evidence was sufficient to
support Defendant’s conviction of driving under the influence, general
impairment, and in that regard that the judgment of sentence was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michele H. Sibert, Esq.
Chief Deputy District Attorney
Patrick F. Lauer, Jr., Esq.
Aztec Building
2108 Market Street
Camp Hill, PA 17011-4706
Attorney for Defendant
11