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HomeMy WebLinkAboutCP-21-CR-0002518-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-2518-2007 : : RICHARD T. CHOI : IN RE: OPINION PURSUANT TO RULE 1925 Following conviction after a jury trial, the defendant was sentenced on counts of homicide by vehicle while driving under the influence, involuntary manslaughter, and driving under the influence. He was also sentenced on a summary count of careless driving. He has filed post-sentence motions. Therein he contends that the evidence was either insufficient or that the convictions were against the weight of the evidence. He also suggests that we erred in admitting the expert opinion of a Dr. Wayne K. Ross as to the defendant’s blood/alcohol level at the time of driving. He contends that we should have charged the jury concerning the defense of justification. Finally, he contends that we erred in admitting prejudicial photographs to be sent to the jury during deliberations. When the sufficiency of the evidence is being challenged, it is well established that all of the evidence and all reasonable inferences that arise therefrom must be reviewed in a light most favorable to the verdict winner. Com. v. Speight, 677 A.2d 317, 320 (Pa. 1996). We will review the facts of the case through that lens. Shortly after 2:00 a.m. on January 3, 2007, the defendant called 911 and requested an ambulance to provide emergency care for his wife. She had suffered what turned out to be a relatively minor cut to her finger. Nonetheless, she can be heard on the 911 tapes crying CP-21-CR-2518-2007 hysterically. Mr. Choi, whose first language is not English, had difficulty making himself understood and the ambulance which was dispatched initially arrived at the wrong address. Apparently frustrated by the failure of the ambulance to arrive on time, Mr. Choi made the decision to drive his wife to the hospital. As he was leaving his development, the ambulance was entering it. Mr. Choi passed the ambulance at a high rate of speed and almost collided with it. Though the ambulance lights were flashing, Mr. Choi made no attempt to stop. Apparently nd bound for the Holy Spirit Hospital, the defendant approached the intersection of 32 (Routes 11 and 15) and Market Streets in the Borough of Camp Hill. He approached the intersection at a high rate of speed and smashed into the rear end of a vehicle which was stopped for the red light. The operator of the vehicle struck was a Michael Moody. It was his passenger, Rodney Steele, who died as a result of injuries sustained in the accident. Following the crash, EMS personnel arrived. One of the personnel spoke with Mr. Choi and noticed the odor of alcohol coming from his person. Mr. Choi’s thought processes were also described as being slow. The affiant in the case, Sgt. James D. McNaughton of the Camp Hill Police Department, also conducted an investigation at the scene. Sgt. McNaughton described the odor of alcohol on the defendant’s breath as being “very strong.” N. T. II, 211. After the accident, Mr. Choi was taken to the Hershey Medical Center. When interviewed the defendant indicated that he had had two beers at approximately 11:00 p.m. that evening. At the Hershey Medical Center, blood was drawn from the defendant for the purpose of testing for alcohol. A Dr. Wayne Ross, a forensic pathologist, also testified in the case. He opined that one becomes impaired with a blood/alcohol reading at about .05 and at .08 one is under the influence 2 CP-21-CR-2518-2007 of alcohol. He went on to describe the increase in impairment which occurs at higher blood/alcohol readings. He then went on to explain blood/alcohol readings and specifically the difference between the testing of plasma as opposed to whole blood. Dr. Ross noted that there were two blood draws from Mr. Choi during the morning of January 3, 2007; one at 3:37 a.m. and another at 4:28 a.m. These readings were .147 and .14 respectively. Dr. Ross then went on to opine that, given the statement of the defendant that he had had beer to drink at 11:00 p.m., he would have been in the elimination phase after 1:00 a.m. In other words, he concluded that the blood/alcohol reading would have been higher at the time of the accident rather than lower. Specifically, Dr. Ross was of the opinion that the defendant’s blood/alcohol exceeded .16 at the time of the accident. We do not believe that the evidence in this case is insufficient as a matter of law to support the convictions nor do we believe that the verdict of the jury was against the weight of the evidence. The Commonwealth presented sufficient evidence to establish that the defendant was under the influence of alcohol and incapable of driving at the time of the incident. The evidence further demonstrates that the victim died as a direct result of the injuries sustained in the collision with the defendant. Furthermore, the evidence sufficiently established that the collision was the direct result of defendant’s impaired ability to drive and directly attributable to the consumption of alcohol. This evidence is buttressed by the testimony of Dr. Wayne Kenneth Ross in which he stated that the victim died as a direct result of injuries sustained in the accident. N.T. at 313-14. Dr. Ross also testified to a reasonable degree of medical testimony that the defendant was under the influence of alcohol such that he would have been incapable of safe 3 CP-21-CR-2518-2007 driving at the time of the accident. See N.T. at 332-33. The testimony of Dr. Ross establishes beyond a reasonable doubt that the collision was the result of defendant’s inability to drive safely due to alcohol consumption and that the victim died as a result of the collision. Several other witnesses also testified as to the defendant’s reckless actions leading up to the accident in question. Emergency medical technician John F. Tinari testified that he was in an ambulance responding to a call when a white sedan passed the ambulance at a high rate of speed, almost colliding with the ambulance. N.T. at 184. Hampden Township Police Officer Bradley Sheetz was responding to the same call as Mr. Tinari and saw the same white sedan pass the ambulance at a high rate of speed. N.T. at 162. Officer Sheetz later drove to the accident in question and testified that the same white sedan which passed the ambulance was the white sedan driven by the defendant. N.T. at 167. Mr. James Rineer testified that defendant’s white sedan struck the victim’s vehicle while the victim was stopped at a red light. N.T. at 42. Mr. Rineer further testified that the defendant was driving excessively fast. N.T. at 42. The testimony of these witnesses establishes beyond a reasonable doubt that the defendant acted in a reckless or grossly negligent manner while driving under the influence of alcohol. The defendant’s contention that this Court erred in admitting the expert opinion of Dr. Ross as to the defendant’s blood/alcohol level at the time of the accident is similarly without merit. An expert’s opinion detailing the probative value of a blood/alcohol test in a particular instance is necessary to eliminate the possibility of jury speculation. Providing testimony concerning the relation back of defendant’s blood alcohol content at the time of the accident alleviated concern that a conviction may arise from the jury’s reliance on uninformed 4 CP-21-CR-2518-2007 speculation. As the Commonwealth points out, expert testimony was necessary to relate back the defendant’s blood alcohol level to the time of the accident to prove causation. The defendant’s argument that this Court improperly refused to instruct the jury on justification is also without merit. An instruction for justification by necessity as a defense requires proof by the defendant that: 1) he was faced with a clear and imminent harm, not one which is debatable or speculative; 2) he could reasonably expect that his actions be effective in avoiding greater harm; 3) there is no legal alternative which will be effective in abating the harm; and 4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue. Com. v. Billings, 793 A.2d 914, 916 (Pa. Super. 2002). The defendant failed to carry his burden in demonstrating that he was entitled to a jury instruction on justification by necessity. The defendant did not adequately demonstrate that he was faced with a clear and imminent harm which was not debatable or speculative. The injury to the finger of the defendant’s wife was nothing more than a “small cut.” In other words, the injury was not such that the defendant should have driven while intoxicated and incapable of safe driving. While the defendant may have reasonably expected that his actions in driving his wife to the emergency room would avoid greater harm, the fact remains that a legal alternative existed to avoiding such harm. In fact, the defendant passed the ambulance while leaving his development. A legal alternative was available to the defendant had he waited a matter of minutes. Finally, the defendant’s argument that photographs submitted to the jury did not fairly and accurately depict the scene of the accident is without merit. Multiple witnesses for the Commonwealth testified to the fact that the photographs fairly and accurately depicted the scene 5 CP-21-CR-2518-2007 at the time of the accident. Samuel Morgan, Patrolman J.D. McNaughton, and James Rineer all testified to the accuracy of the photographs. Consequently, the photographs were properly submitted to the jury as they accurately depicted the scene at the time of the accident. March 13, 2009 _______________________________ Kevin A. Hess, J. Christylee Peck, Esquire Sr. Assistant District Attorney Patrick F. Lauer, Jr., Esquire For the Defendant :rlm 6