HomeMy WebLinkAboutCP-21-CR-0000968-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-00968-2008
:
:
JOSE LUIS VEGA, JR. :
IN RE: IN RE: OPINION PURSUANT TO RULE 1925
In this case, the defendant was found guilty of driving under the influence and driving
under suspension, DUI related. On January 12, 2009, he was sentenced to two consecutive
sentences of ninety days. He has filed an appeal.
The defendant had filed for post-sentence relief in the form of a motion in arrest of
judgment. The defendant presented six issues, including: (1) the trial court erred in failing to
sequester all of the witnesses; (2) the verdict rendered by the jury was against the weight of the
evidence; (3) the Commonwealth failed to timely disclose their expert to the defense (until the
day of trial); (4) the trial court inappropriately permitted the Commonwealth to show the jury a
video tape which showed the horizontal gaze nystagmus test; (5) the trial court erred in not
allowing Defendant’s expert to testify concerning his expert opinion as to the driving and the
physical effects of alcohol; and (6) the trial court incorrectly and inappropriately failed to explain
to the jury the Defendant’s theory of the case.
The testimony at trial established that on Sunday, July 1, 2007, at approximately 2:50
a.m., police officer Thomas Dombroski of Upper Allen Township began following the
defendant’s car. Dombroski testified that he initially started following the defendant’s car when
he noticed it traveling at a high rate of speed. At some point, the defendant’s car was driving on
the opposite side of the roadway. The defendant also failed to use his turn signal on at least one
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occasion. Because of the erratic driving, Dombroski activated his police car’s lights and sirens
and stopped the defendant just as he was pulling into his place of residence. After Defendant
rolled down his window, Dombroski noticed a strong odor of alcohol on the defendant’s breath.
The officer also noticed that the defendant’s eyes appeared to be glassy. Mr. Vega also had
blood on his face, which he said was the result of him falling prior to getting into his vehicle at
his friend’s house.
The officer then asked Mr. Vega if he was willing to go with him to the Carlisle Hospital
for a blood test. The defendant agreed. When they arrived at the hospital, Officer Dombroski
brought in a blood kit which he had stored in his police vehicle. The phlebotomist, Amy Harris,
used the two vials which were located inside the sealed blood kit. After taking the blood sample,
Ms. Harris resealed the blood kit and gave it to the officer to retain as evidence. The blood
sample was drawn at 3:54 a.m., less than two hours after the defendant was stopped. A
subsequent analysis of the blood sample by forensic scientist, Kimberly Souder, resulted in a
reading of .23 percent, substantially above the legal limit.
Mr. Vega first claims that we erred by not sequestering all of the Commonwealth’s
witnesses. In this case, we denied the request because the witnesses in the courtroom were not
testifying with regard to the same matters. The trial judge has the discretion to order the
sequestration of witnesses in criminal cases. Com. v. Henry, 706 A.2d 313 (Pa. 1997). Absent
an abuse of this discretion, the determination of the trial court will not be reversed. Id. A
request for sequestration of a witness or witnesses should be specific and should be supported by
some reason or reasons demonstrating that the interest of justice require it. Id. The purpose of
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sequestration is to prevent a witness from shaping his testimony in accordance with evidence
presented by other witnesses. Id. at 320.
Here, the defendant fails to cite instances where any of the witnesses may arguably have
tailored their testimony. He also fails to explain how our denial of his request for sequestration
contravened the interests of justice.
Next, the defendant argues that the verdict rendered by the jury was against the weight of
the evidence. Mr. Vega’s expert, Dr. Brettell, claimed that there was no evidence of inversion of
the blood sample tubes. He testified that without proper inversion, fermentation and the related
production of alcohol could have occurred, thereby making the reported result unreliable. He
also argues that the blood kit had been kept in Officer Dombroski’s cruiser on days when the
outside temperature exceeded 77 degrees. Dr. Brettell testified that the manufacturer requires that
the specimen tubes be stored in an area not exceeding 77 degrees.
Notwithstanding the defendant’s expert testimony, the jury gave credence to the entire
process by which the blood was collected, stored and evaluated for the purpose of determining
the blood alcohol content. They were satisfied that it was Ms. Harris’s practice to invert the tubes
and that she had no doubt done so on this occasion. When presented with a challenge to the
sufficiency of the evidence, we review all the evidence and all reasonable inferences therefrom
in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v.
Devine, 750 A.2d 899, 903 (Pa.Super. 2000). The record reflects that when the defendant was
pulled over, he exhibited signs of intoxication. He was taken for a blood test. The blood was
then sent to the Pennsylvania State Police for analysis. The jury apparently agreed with the
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Commonwealth that the proper procedures for the taking and analyzing of the blood samples
were followed in this case. There is no legal basis to disturb the jury’s finding.
The defendant next argues that the Commonwealth failed to timely disclose expertly
opinions. In particular, he claims that the Commonwealth knew that it intended to call an expert,
namely, Kimberly Souder, and also called Amy Harris at trial intending to use those witnesses to
go beyond the realm of simple fact and into opinions and matters beyond the ken of the lay
person. The defendant complains that no notice of expert testimony was given, but rather the
Commonwealth simply handed over curriculum vitae with no reports moments beyond jury
selection. He claims that this was trial by “ambush” in contravention to the spirit and letter of
the rules of criminal procedure. We disagree.
The defendant was aware from the outset of this case that his blood had been analyzed by
a forensic scientist at the Pennsylvania State Police Laboratory. Moreover, he was also aware
that his blood had been drawn by a phlebotomist. Had he wished to review a report prior to trial,
he could have filed a motion with the court requesting such a report in accordance with
Pa.R.Crim.P. 573. This he did not do.
Next, defendant argues that the trial court incorrectly permitted the Commonwealth to
play a video tape which showed the horizontal gaze nystagmus test even though the results of
such a test are inadmissible at trial. He cites, among other cases, to Commonwealth v. Miller,
532 A.2d 1186 (Pa.Super. 1987) in which the Commonwealth did not present expert testimony
regarding general acceptance of the scientific principle (i.e., consumption of alcohol causes
nystagmus) upon which the HGN test is based. The only testimony concerning the validity of the
HGN test came from the officer, whose only specialized training in this area was a two-day
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course on the proper use of the HGN test and other field sobriety tests. The Superior Court
found that this was an inadequate foundation for the admission of the testimony regarding the
results of the test.
The present case is clearly distinguishable from the Miller case. During Mr. Vega’s trial,
the Commonwealth showed the booking center video depicting the HGN test, but the video was
on mute. No testimony was offered with regard to horizontal gaze nystagmus or the results in
this particular case.
Next, the defendant contends that we erred in not permitting his expert, Anthony D.
Palacios, to testify concerning his opinions and conclusions which he reached in this case. In
fact, Mr. Palacios was permitted to testify extensively, based on his considerable experience in
DUI detection and the administration of field sobriety tests. He testified concerning the
shortcomings of the test which were administered in this case and expressed his conclusion that
the results of the field sobriety tests were invalid. He was not, however, allowed to express his
opinion that the blood-alcohol reading in the case was inconsistent with the defendant’s
appearance on the night in question. We sustained the Commonwealth’s objection to this
testimony because there was no reference to it in the expert report of Mr. Palacios and the
Commonwealth, legitimately, claimed surprise. Moreover, the witness professed no expertise in
medicine or any of the forensic sciences. We note, also, that another of the defendant’s experts,
Thomas A. Brettell, Ph.D., was permitted to testify, at length, concerning his opinion that the
behavior of the defendant was not consistent with a person with a .23 percent blood-alcohol.
Finally, the defendant complains that we “incorrectly and inappropriately failed to
promulgate to the jury the defense theory of the case in its entirety.” He claims that he was
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entitled to have his theory of the case read “in a non-parsimonious way to the Jury independent
of the elements of the crime charge and independent of the standard Jury Instructions.” In other
words, he seems to contend that it is our obligation to review all of the defense arguments in our
closing instructions to the jury. We know of no authority for this proposition.
We do agree that the failure to charge on elements of a defense can be reversible error,
particularly where the failure is prejudicial to the defendant. Such was the holding in both cases
cited by the defendant, Commonwealth v. Morgan, 401 A.2d 1182 (Pa.Super. 1979) and
Commonwealth v. Henderson, 378 A.2d 393 (Pa.Super. 1977). These were cases, however, in
which the trial judge failed to charge that the mere presence of the defendant at the scene of a
crime is not evidence of guilt. In the Henderson case, in particular, the jury’s understanding of
that principle was critical to the defense. It was held that the trial court erred in not giving the
instruction. This is a far cry from suggesting that the trial court has the obligation to argue the
defense case. We are satisfied that we fairly and adequately delineated the issues for the jury in
our charge. For example, with respect to the charge of DUI – highest rate, we told the jury:
The Commonwealth does not have to prove under
this particular charge that the defendant was
incapable of safe driving. The Commonwealth
only has to prove that the defendant’s blood
alcohol level was in the prohibited range within
two hours of the time that he drove his car.
Now, that having been said, of course, the issue
then of the blood alcohol test in this case and the
legitimacy of the reading that was obtained is very
much a matter for the jury. And I am not going to
rehash in any detail the positions of the parties.
You have just heard it. You have just heard their
arguments.
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In brief, the Commonwealth contends that they
followed the appropriate procedures and the result
was accurate. The defense has advanced potential
shortcomings in the test and argues in addition that
the appearance of the defendant is not consistent
with the blood alcohol reading in this case….
(Notes of Testimony, p. 377). Any duty to further elaborate on the defense would entail a
corresponding duty to elaborate on the theory of the prosecution. The trial court clearly has the
duty to avoid such advocacy.
In his statement of matters complained of on appeal, the defendant contends that we erred
in denying his motion to compel discovery “requiring the Pennsylvania State Police to turn over
more than the single page conclusory report as to the BAC and none of the underlying
documentation.” While he reviewed his motion for discovery in factual recitations set forth in
post-trial motions, the defendant did not set forth nor separately brief our denial of discovery in
his post-trial motion. Accordingly, we are satisfied that this issue has been waived on appeal.
Even if not waived, we are satisfied that we did not err in the denial of his earlier motion. His
earlier motion sought much more than “underlying documentation” with respect to the blood test.
The discovery sought from the Commonwealth was clearly overbroad and, despite the court’s
suggestion that he do so, counsel for the defendant took no steps to tailor his discovery request so
that it could be responded to by the Commonwealth. In any event, the matters sought by the
defense clearly went beyond the kind of discovery contemplated by Pa.R.Crim.P. 573.
July 30, 2009 ________________________________
Kevin A. Hess, J.
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Christin Mehrtens-Carlin, Esquire
Sr. Assistant District Attorney
Justin J. McShane, Esquire
For the Defendant
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