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HomeMy WebLinkAboutCP-21-CR-0002209-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2209-2008 : : CHARGE: 1. DUI, GENERAL IMPAIRMENT; V. : 2. DUI – HIGHEST RATE; : 4. CARELESS DRIVING (SUMMARY); : 5. DRIVING ON ROADWAYS LANED FOR : TRAFFIC (SUMMARY) : BRETT WALTER SCHREYER : OTN: K386439-4 : AFFIANT: TPR. JOSEPH L. SPLENDIDO IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., February 22, 2010 - Defendant was found guilty by jury on April 8, 2009, of the above-captioned charges. 1 Defendant appeals on the following matters: 1. The trial court erred in permitting the District Attorney to make an improper statement during her closing argument to the jury which appealed to the jury’s emotions and impermissibly shifted the burden of proof to the Defendant. 2. The trial court erred in refusing to allow the Defendant’s expert witness to testify regarding the alcohol screening tests that he administered to the Defendant, as they were examinations used in the process of rendering his expert opinion. 3. The trial court erred in permitting the District Attorney to reference the failure of the Defendant’s expert witness to testify as to the alcohol screening tests that he performed, as the Defendant’s expert witness was precluded from testifying as to these matters. Facts and Procedural History On March 25, 2008, Pennsylvania State Trooper Joseph Splendido charged Defendant with the above-captioned offenses for events alleged to have occurred on or about March 22, 2008. Trooper Splendido was on patrol on the Pennsylvania turnpike and observed a backlog of traffic. He observed a Ford Explorer, later known to be driven by Defendant, traveling in the 1 Defendant’s Concise Statement of Matters Complained, filed Dec. 2, 2009. 2 middle of the eastbound lanes at approximately 30-35 miles per hour. He pulled Defendant over at the Plainfield Plaza exit. Trooper Splendido testified that he smelled alcohol on Defendant’s 3 breath and that Defendant’s eyes were bloodshot and glassy. When asked if he had been drinking, Defendant replied that he had been drinking vodka and that his last drink was about an 4 hour prior to the stop. Defendant told Trooper Splendido that he had gotten on the turnpike 5 approximately 73 miles away at the Bedford interchange. Trooper Splendido asked Defendant to remain in the car while he called in the vehicle stop, but Defendant did not comply. He got out of his vehicle and began walking toward 6 Trooper Splendido. The trooper placed Defendant in handcuffs while under investigative 7 detention, but did not place him under arrest at that time. Because Splendido had observed signs of intoxication and Defendant admitted that he had been drinking, Splendido began to administer a field sobriety test and removed handcuffs from Defendant. During the first part of the test, Defendant needed assistance when asked to stand on a white line in the parking lot. While Splendido was demonstrating the test, Defendant said that he no longer wanted to submit 8 to field sobriety testing. Splendido then placed Defendant under arrest for driving under the 9 influence. Splendido attempted to place handcuffs on Defendant again, but Defendant pulled his hands away and continued to refuse to comply with Splendido’s requests. There was a brief struggle in which Trooper Splendido had to use force to get Defendant in handcuffs, and 10 Defendant was at one point forced to the ground. 2 Notes of Testimony April 6, 2009 at 73-74. (hereinafter N.T. ___) 3 N.T. 75. 4 N.T. 75. 5 N.T. 77-78. 6 N.T. 79. 7 N.T. 77. 8 N.T. 81. 9 N.T. 83. 10 N.T. 85. 2 Trooper Splendido filed a criminal complaint with the above-captioned offenses on March 25, 2008. The charges were dismissed and a second criminal complaint was filed on June 16, 2008, for the above-captioned offenses. A preliminary hearing was held on August 20, 2008, and charges were forwarded to this Court for trial. A jury trial was held from April 6-9, 2009, and Defendant was found guilty of Driving Under the Influence of Alcohol – 11 level .10 to .159, and not guilty on the charge of Resisting Arrest. The Court found Defendant guilty on the charges of Driving Under the Influence, General Impairment, Careless Driving, and 12 Driving on Roadways Laned for Traffic. Defendant now appeals the jury verdict. Discussion A. Commonwealth’s Statements during Closing Argument Were Not Improper Defendant appeals in part based on the following statements made during the 13 Commonwealth’s closing argument: COMMONWEALTH: The fact that someone does not look like a .34 is not reasonable doubt. I’ll tell you what it is though. You can consider every piece of exhibit, every person who testified, take all that into consideration, take your personal experience and common sense into consideration. Now, back on March 22, 2008, at 11:25 p.m., when the Defendant is released from care, if you would have allowed him to drive you home, knowing everything you know, at 11:25, you would have gotten into that car with him and allowed him to drive you home – MR. MCSHANE: Your Honor, I am going to object to – COMMONWEALTH; --that is reasonable doubt. MR. MCSHANE: --that characterization. THE COURT: That is fair. COMMONWEALTH: That is reasonable doubt, you should find the defendant not guilty. If you would have gotten in the car with him, you would 11 N.T. 551. 12 N.T. 552. 13 N.T. 523-524. 3 have allowed him to drive you home, that is reasonable doubt that his blood alcohol content was above a .16 and you should find him not guilty. But, if based on everything you heard, common sense, March 22, 2008, at 11:25, if you would not have gotten in that car with him, you do not have a reasonable doubt that his blood alcohol content was above a .16, and you should find him guilty. Defendant claims that the Commonwealth’s statements were improper because they were made to appeal to the jury’s emotions. In evaluating a prosecutor’s closing statement for potential prejudice, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Com. v. Judy, 978 A.2d 1015, 1019 (Pa.Super.2009) (citing Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super.2006). It is clear from the context of the prosecutor’s statements that she was attempting to demonstrate the concept of reasonable doubt to the jury, and had no intent to appeal to the jury’s emotion or passion. Her statements did not create any hostility toward Defendant and did not prejudice the jury’s decision. Unlike cases where statements by the prosecution have constituted reversible error (see e.g. Commonwealth v. Cherry, 378 A.2d 800 (Pa. 1977), in this case the prosecutor did not ask the jury members to place themselves in the shoes of the victim, nor did she attempt to evoke fear in the jury by suggesting a horrific scenario where they could imagine themselves in danger unless they found the Defendant guilty. The prosecutor simply posed a hypothetical scenario that illustrated the concept of reasonable doubt in terms that were easy for the jury to understand. Furthermore, the Commonwealth has a right to respond to defense’s closing arguments. Any allegedly improper prosecutorial comments must be examined within the context of the conduct of defense counsel. Com. v. Hennigan, 753 A.2d 245, 261 (Pa.Super.2000)(citing Commonwealth v. Morales, 701 A.2d 516, 528 (1997)). If a challenged remark is made in response to the defense's closing argument, it will generally be deemed fair response and hence 4 permissible comment. Id. (citing Commonwealth v. Williams, 650 A.2d 420, 428 n. 13 (Pa. 1994). Defendant’s attorney presented his own demonstration of reasonable doubt in his closing, and the Commonwealth properly responded. B. The Court Properly Excluded Hearsay Statements from Expert Testimony Defendant claims that the Court erred in refusing to allow defense expert, Dr. Gengo, to testify about alcohol screening tests which Defendant says the expert used in rendering his expert opinion. Most importantly, the Court believes Defendant’s grounds of appeal on this matter to be misplaced. The record does not reflect any reference to Dr. Gengo’s potential to testify about any alcohol screening reports, but only references Dr. Gengo’s conversations with Defendant. Dr. Gengo formed his expert opinion only by reviewing information given to him by 14 Defendant’s counsel and from conversations in preparation for litigation. Dr. Gengo did not perform any alcohol screening tests on Defendant, so the Court could not have prevented him from testifying about any such tests. To the extent that Defendant is appealing the denial of any portion of Dr. Gengo’s testimony, it is this Court’s opinion that Defendant was actually attempting to admit self-serving hearsay by offering Defendant’s own statements through an expert witness. Defendant claims that his expert witness was going to testify to statements in his report which the expert used to form his expert opinion. However, Dr. Gengo’s report did not make any reference to interviews of Defendant, so his testimony could not have been based on information contained in his report. Therefore, this Court properly excluded the portion of Dr. Gengo’s testimony which was inadmissible hearsay. The statements that Defendant attempted to offer through Dr. Gengo’s testimony did not fall into any hearsay exceptions. The medical treatment exception to the hearsay rule provides 14 N.T. 294. 5 that out-of-court statements made for purposes of receiving medical treatment are admissible as substantive evidence. Estate of Swift v. Northeastern Hosp. of Philadelphia, 690 A.2d 719 (Pa.Super.1997) (citing Commonwealth v. Smith, 681 A.2d 1288 (Pa. 1996)). However, evidence must pass a two-part test in order to be admissible under the medical treatment exception to the hearsay rule. First, the declarant must make the statement for the purpose of receiving medical treatment, and second, the statement must be necessary and proper for diagnosis and treatment. Id. In this case, Defendant’s statements made to Dr. Gengo were not made for the purpose of any medical treatment or diagnosis. Dr. Gengo is an expert in pharmacology and is not a medical doctor and Defendant did not meet with Dr. Gengo for a medical diagnosis. Dr. Gengo’s expert testimony was based on a review of various reports, none of which contained any interviews with Defendant. Therefore, Dr. Gengo could only be permitted to testify to underlying facts contained in any of the reports used to form his expert opinion. Defendant was attempting to admit self-serving hearsay rather than elicit any facts or data underlying Dr. Gengo’s opinion. C. Reference to Expert’s Testimony in Commonwealth’s Closing Argument Was Not Improper Defendant also claims that the Court erred in allowing the Commonwealth to reference the failure of Defendant’s expert witness to testify about alcohol screening tests he performed when the expert was precluded from testifying to these matters. Defendant’s appeal on these grounds is misplaced because Defendant’s expert was not precluded from testifying about alcohol screening tests performed on Defendant. The Commonwealth did not, as Defendant states in his appeal, reference failure to testify on evidence that was excluded. 6 Prosecutors are permitted to argue on closing any reasonable inferences arising from the evidence, Com. v. Lawson, 546 A.2d 589, 596 (Pa. 1988) (citing Commonwealth v. Anderson, 415 A.2d 887 (Pa. 1980). The Commonwealth simply pointed to the fact that Defendant’s expert did not offer any testimony that showed that he conducted any of the more than 20 available tests to determine whether Defendant was an alcoholic. The Commonwealth was within its limits to highlight this fact in closing argument. Conclusion The Court did not err by allowing certain statements to be made by the Commonwealth during closing argument. The Commonwealth is permitted to make inferences supported by the evidence, and is permitted to effectively respond to Defendant’s case. The Commonwealth’s statements were permissible on these grounds. In one instance, the Commonwealth was demonstrating reasonable doubt, and in another it was simply stating that Defendant’s expert did not perform certain tests. These statements were not improper; therefore, this Court did not err in allowing them to be made. The expert testimony that Defendant claims was improperly excluded was, in fact, inadmissible hearsay, and this Court properly excluded it. The Commonwealth did not reference this inadmissible testimony in its closing, but instead referenced the fact that Defendant’s expert did not perform certain alcohol screening tests. No admissible testimony was excluded and no statements made by the Commonwealth were improper. Therefore, this Court acted properly and Defendant is not entitled to a new trial. By the Court, ________________________________ M. L. Ebert, Jr., J. 7 Michelle H. Sibert, Esquire Chief Deputy District Attorney Justin J. McShane, Esquire Attorney for the Defendant 8