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HomeMy WebLinkAboutCP-21-CR-2016-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SCOTT ALAN CLOPPER : CP-21-CR-2016-2008 IN RE: POST-SENTENCE MOTION OPINION AND ORDER OF COURT Bayley, J., September 2, 2009:-- On March 10, 2009, following a bench trial, defendant, Scott Alan Clopper, was 1 found guilty of driving under the influence, general impairment. On July 21, 2009, defendant was sentenced to pay the costs of prosecution, a $300 fine, and undergo imprisonment in the Cumberland County Prison for a term of not less than five days or 2 more than six months. Defendant filed a timely post-sentence motion in which he seeks an arrest of judgment, or in the alternative a new trial. The evidence in a light most favorable to the Commonwealth was as follows. On May 7, 2008, at approximately 1:25 a.m., Corporal William Palmero of the Pennsylvania State Police was on patrol on Route 34. He was entering Mount Holly Springs and approaching an intersection at Mill Street which was controlled by a traffic light. Corporal Palmero had a green light. He saw a vehicle approaching on Mill Street. The driver pulled up to the red light, and made a right turn onto Route 34 without coming to __________ 1 75 Pa.C.S. § 3802(a)(1). 2 The minimum sentence of five days was the mandatory minimum for this second CP-21-CR-2016-2008 a complete stop and without using a turn signal. The driver then made a left turn onto Lenhar Street without using a turn signal. Corporal Palmero followed the vehicle on some alleys, across a cemetery, and to a parking area of a house on McLand Drive where the driver stopped. Corporal Palmero stopped and got out of patrol car. He saw defendant, Scott Clopper, having trouble getting out of the vehicle. He was supporting himself with his left hand on the vehicle. Defendant had bloodshot eyes. Corporal Palmero talked to him. His speech was thickened and he had difficulty forming words. There was an odor of an intoxicating beverage coming from him. While standing in place he swayed back and forth. Corporal Palmero asked defendant where he had been. He said he had been staying at his boss’s house which was the house where they were. He woke up, thought his boss might wake up and be hungry, so he drove to a Sheetz store to buy him a sandwich. He was bringing the sandwich back. He said he had several beers to drink earlier in the evening. Corporal Palmero, who has a wealth of experience in DUI cases, was of the opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safely driving. He arrested him for driving under the influence and placed him in his patrol vehicle. He took him to a booking center where he turned him over to a booking agent. The agent administered field sobriety tests to defendant. Defendant made an improper turn on the walk-and-turn test. On a one-leg stand test, he swayed, raised his arms, and put his foot down. offense for driving under the influence. -2- CP-21-CR-2016-2008 Defendant testified at trial that during the day before he was arrested he had been at an American Legion between “11:00, 12:00, 1:00, something in that area.” He had lunch and a few beers. He then went home with a neighbor and split some wood. He had a fight with his wife. He went to the house of his boss who he worked for at the graveyard. He was spending the night there, he had gone to bed, but got up and drove to a Sheetz store where he bought some sandwiches. Defendant testified that the last time he had used alcohol before he saw Corporal Palmero was “several hours.” He said he had been drinking Budweiser. He was asked how many drinks he had and stated: “Well, we – I’d say we drank a case between two people. I’d say that would be about it.” The test for determining the sufficiency of the evidence, viewing the evidence in a light most favorable to the verdict winner, is whether the fact-finder reasonably could have concluded that all the elements of the crime were established beyond a Commonwealth v. Robinson reasonable doubt. , 721 A.2d 344 (Pa. 1998). Driving under the influence, general impairment, is defined in Section 3802(a)(1) of the Vehicle Code as: An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. To prove that a defendant has imbibed a sufficient amount of alcohol such that he is rendered incapable of safely driving a vehicle, it must be shown that alcohol has -3- CP-21-CR-2016-2008 substantially impaired the normal mental and physical faculties required to safely Commonwealth v. Montini, operate a vehicle. 712 A.2d 761 (Pa. Super. 1998). Substantial impairment, in this context, means a diminution or enfeeblement of the ability to exercise judgment, to deliberate or to react prudently to changing Id. circumstances and conditions. This standard can be met even in the absence of Commonwealth v. Feathers, erratic or unsafe driving. 660 A.2d 90 (Pa. Super. 1995). In the present case, defendant: (1) Pulled up to a red light and made a right turn without coming to a complete stop and without using a turn signal. (2) Made a left turn onto a street without using a turn signal. (3) Had trouble getting out of his vehicle. (4) Supported himself with his left hand on the vehicle. (5) Had bloodshot eyes. (6) Had speech that was thickened and had difficulty forming words. (7) Had an odor of an intoxicating beverage coming from him. (8) Swayed back and forth while standing in place. (9) Said at the scene that he had several beers to drink earlier in the evening. (10) Made, at a booking center, an improper turn on a walk-and-turn test and swayed, raised his arms, and put his foot down on a one-leg stand test. (11) Testified at trial that he had some beers at lunch, that the last time he had beer was several hours before he was stopped [at approximately 1:25 a.m.], and that -4- CP-21-CR-2016-2008 he and a friend drank a case of beer between them. -5- CP-21-CR-2016-2008 Additionally, Corporal Palmero was of the opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safely driving. All of this was sufficient evidence to establish beyond a reasonable doubt that defendant operated his motor vehicle while under the influence of alcohol to a degree that rendered him incapable of safely driving. Commonwealth v. Cousar In , 928 A.2d 1025 (Pa. 2007), the Supreme Court of Pennsylvania stated: A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court . . . The fact-finder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Since this judge found defendant guilty of driving under the influence, general impairment, at a bench trial, I certainly conclude that the verdict was not so contrary to the evidence as to shock my sense of justice. ORDER OF COURT AND NOW, this day of September, 2009, the motion of IS DENIED. defendant for post-sentence relief, By the Court, Edgar B. Bayley, J. -6- CP-21-CR-2016-2008 Daniel Sodus, Esquire For the Commonwealth Timothy M. Barrouk, Esquire For Defendant :sal -7- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : SCOTT ALAN CLOPPER : CP-21-CR-2016-2008 IN RE: POST-SENTENCE MOTION ORDER OF COURT AND NOW, this day of September, 2009, the motion of IS DENIED. defendant for post-sentence relief, By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire For the Commonwealth Timothy M. Barrouk, Esquire For Defendant :sal