HomeMy WebLinkAboutCP-21-CR-0000186-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) DRIVING UNDER THE
: INFLUENCE – GENERAL
: IMPAIRMENT
v. : (3) ACCIDENT INVOLVING DAMAGE
: TO UNATTENDED VEHICLE OR
: PROPERTY (SUM.)
: (4) DRIVING UNDER THE
: INFLUENCE – GENERAL
: IMPAIRMENT, WITH ACCIDENT
ALLEN J. CWALINA :
OTN: L452098-3 : CP-21-CR-0186-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 3, 2010.
In this criminal case, Defendant was charged with various Vehicle Code offenses
as the result of an incident occurring in November of 2008. Following a trial, a jury found
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itself deadlocked as to the only charge that entitled the parties to a jury trial and the court
found Defendant guilty as to those charges to which the right to a jury trial did not
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attach, including driving under the influence of alcohol, general impairment, with
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accident, and leaving the scene of an accident. From the judgment of sentence imposed
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for those offenses, Defendant now appeals to the Pennsylvania Superior Court.
A mistrial was declared as to that charge. Order of Court, In Re: Mistrial, Oct. 2, 2009.
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The jury and non-jury charges were tried together. Order of Court, In Re: Omnibus Pretrial Motion,
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May 18, 2009 (Hess, J.); Notes of Testimony, 3, In Re: Omnibus Pretrial Motions, May 15, 2009; see
Notes of Testimony, 3, In Re: Pretrial Motions, Sept. 28, 2009.
See Order of Court, In Re: Verdict, Oct. 2, 2009.
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The jury deadlock resulted in a mistrial being declared as to Count 2, Driving under the Influence,
Highest Rate of Alcohol. At Count 3, Defendant was sentenced by the court to pay a fine of $300.00,
and at Count 4, a second offense for mandatory sentencing purposes, to undergo a period of
imprisonment of not less than 30 days nor more than six months and to pay a fine of $750.00. Order of
Court, In Re: Sentencing, Dec. 8, 2009. Pursuant to an agreement of counsel, the sentence as to Count I,
Driving under the Influence, General Impairment, was deemed to have merged with the sentence
The bases for the appeal have been expressed in a statement of matters complained
of on appeal as follows:
1. The evidence is insufficient to support the verdict or, alternatively,
the verdict is against the weight of the evidence because the
Commonwealth failed to prove beyond a reasonable doubt that the
Defendant drove his vehicle while drunk but, rather, the evidence
demonstrated that he drank at home only after the accident which was
caused by a steering wheel defect of his vehicle.
2. The court’s verdict was fatally inconsistent with the fact that the
jury was hopelessly deadlocked because the commonwealth failed to
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prove the charges beyond a reasonable doubt.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
In the early morning hours of Wednesday, November 26, 2008, a vehicle parked in
a residential area of Lower Allen Township, Cumberland County, Pennsylvania, was
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damaged by another vehicle, the driver of which did not remain on the scene.
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Ultimately, Defendant was identified as the driver and charged with (1) driving under
imposed at Count 4. Order of Court, In Re: Sentencing, Dec. 8, 2009; N.T., 2-3, In Re: Sentencing
Proceedings, Dec. 8, 2009.
Defendant’s Notice of Appeal, filed March 10, 2010. Defendant remains at liberty on his own
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recognizance pending disposition of the appeal. Order of Court, In Re: Sentencing, Dec. 8, 2009.
Defendant’s Concise Statement of Errors Complained of on Appeal, filed Mar. 25, 2009.
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Notes of Testimony, Volume IV, 109-11, Trial, October 1, 2009 (hereinafter N.T. Vol. IV_____, Oct. 1,
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2009).
Criminal Complaint, filed January 20, 2009. On March 16, 2009, the Commonwealth filed an
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information, charging Defendant with the following offenses: Driving under the Influence, General
Impairment; Driving under the influence, General Impairment, with Accident; and Accident
Involving Damage to Unattended Vehicle or Property, Information, filed Mar. 16, 2009. On April 2,
2009, the Commonwealth amended the information by adding the charge of Driving under the
2
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the influence, general impairment, (2) driving under the influence, highest rate of
1011
alcohol, (3) accident involving damage to unattended vehicle or property, and (4)
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driving under the influence, general impairment, with accident. Based upon the
potential penalties for the offenses, the right to a jury trial attached to the second charge
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only; a jury/bench trial on all charges was held on September 28, 2009 through October
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2, 2009, with the undersigned judge presiding.
At trial, the Commonwealth called ten witnesses: the owners of the damaged
vehicle, Craig Swartz and Jodi Swartz; a neighbor of the Swartzes, Ronald Leo; an
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accident reconstructionist and Lower Allen Township Police Officer, Matthew Claeys;
a Cumberland County booking agent, Bryan Rowe; a forensic toxicologist, William
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Wingert; a second Lower Allen Township Police Officer, Michael Scarlotto; a
Influence, Highest Rate of Alcohol and dropping the charge of Driving under the Influence,
General Impairment, with Accident. Information, filed Apr. 29, 2009. On Sept. 14, 2009, the
Commonwealth amended the information again by re-including the charge of Driving under the
Influence, General Impairment, with Accident. Information, filed Sept. 14, 2009.
Act of Sept. 30, 2003, P.L. 120, No. 24, §14, as amended 75 Pa. C.S.A. §3802(a)(1) (2010 West).
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75 Pa. C.S.A. §3802(c).
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Act of July 6, 1995, P.L. 288, No. 42, §2, as amended 75 Pa. C.S.A. §3745 (2010 West).
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75 Pa. C.S.A. §3802(a)(1).
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P.C.A.I, §6.
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A ONST RT
Pursuant to an understanding of counsel, evidence as to all charges was presented at the same
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time. Notes of Testimony, 3, In Re: Pretrial Motions, September 28, 2009.
Officer Claeys was qualified as an expert in crash reconstruction, including the recovery and
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interpretation of airbag controlled module data. Notes of Testimony, Volume I, 54, Trial, Sept. 28,
2009 (hereinafter N.T. Vol. I, _____, Sept. 28, 2009); see Commonwealth Exhibits 4-6, admitted
Sept. 30, 2009 (hereinafter Com. Ex. _____).
William Wingert was qualified as an expert in forensic toxicology. Notes of Testimony, Volume II,
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91, Trial, Sept. 29, 2009 (hereinafter N.T. Vol. II, _____, Sept. 29, 2009).
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Pennsylvania Vehicle Safety Inspector, Thomas Kaufman; the owner of the damaged
vehicle as of the time of trial, Gerald Wintermeyer; and a second neighbor of the
Swartzes, Ronald Kirsch.
Defendant called sixteen witnesses: Officer Claeys; an acquaintance of Defendant
from the political arena, Ray Zaborney; Defendant’s mother, Helen Cwalina; a friend of
Defendant, Nikos Phelps; a neighbor of Defendant, Albert Tilder; an individual whose
habit was to walk near the scene where the collision occurred, Cynthia Moody; the
Director of Vehicle Management for the Pennsylvania Department of General Services,
Cathy Garrett; an “Automobile Officer” for the Pennsylvania Department of Labor and
Industry, Thomas D’Annunzio; Defendant’s assistant, Nathan Bortner; an expert in
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toxicology, Dr. Lawrence Guzzardi; the Director of the Pennsylvania Bureau of
Administrative Services, Michael Peterson; the Chief of the Property Division of the
Pennsylvania Bureau of Administrative Services, Mark Shafer; an expert in mechanical
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engineering and biomechanics, Gautam Ray; an expert in accident reconstruction and
Thomas Kaufman was qualified as an expert as a Pennsylvania Vehicle Safety Inspector. N.T. Vol.
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II at 127, Sept. 29, 2009.
Lawrence Guzzardi was qualified as an expert in toxicology. Notes of Testimony, Volume III, 133,
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Trial, Sept. 30, 2009 (hereinafter N.T. Vol. III, _____, Sept. 30, 2009).
Gautam Ray was qualified as an expert in Mechanical Engineering and Biomechanics. N.T. Vol. IV
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at 8, Oct. 1, 2009.
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the function of a motor vehicle, Peter Leiss; an expert in ergonomics, Dr. William
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Vigilante; and Defendant himself.
In the Commonwealth’s case-in-chief, Craig Swartz testified that he first noticed
damage to his 2002 Mercury Cougar, parked across the street from his house in Lower
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Allen Township, Cumberland County, Pennsylvania, when he left his residence to go to
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work at around 5:30 in the morning on Wednesday, November 26, 2008, and called the
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police. His spouse, Jodi Swartz, testified that at some point in time after the accident,
but before the trial began, ownership of the damaged vehicle was transferred to one
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Gerald Wintermeyer. A neighbor of the Swartzes, Ronald Leo, testified that he had
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heard a loud crash around 3:00 that morning. Accident Reconstructionist and Lower
Allen Township Police Officer Claeys testified that he responded to the scene of the
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accident at 5:48 in the morning, and saw the damaged vehicle and several pieces of
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debris in the lane of traffic. The Commonwealth’s photographs of the scene of the
Peter Leiss was qualified as an expert in accident reconstruction and the function of a motor
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vehicle. N.T. Vol. IV at 25, Oct. 1, 2009.
William Vigilante was qualified as an expert in the area of ergonomics. N.T. Vol. IV at 55, Oct. 1,
21
2009.
N.T. Vol. I at 4-5, 7, Sept. 28, 2009; Com. Ex. 1, admitted Sept. 30, 2009.
22
N.T. Vol. I at 9, Sept. 28, 2009.
23
N.T. Vol. I at 12, Sept. 28, 2009.
24
N.T. Vol. 1 at 26, 35, Sept. 28, 2009.
25
N.T. Vol. I at 38, Sept. 28, 2009.
26
N.T. Vol. I at 57, Sept. 28, 2009.
27
N.T. Vol. I at 59-69, Sept. 28, 2009; see Com. Ex. 2A-B, admitted Sept. 30, 2009.
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accident showed that the accident occurred on Lowell Lane, which at that location was a
slightly-curved, two-lane residential street with a raised curb and with individual homes
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lining each side of the street. According to his testimony, Officer Claeys concluded at
the scene, based on his experience and training, that the vehicle which caused the damage
would likely have been damaged as well, and that it had likely been driven by someone
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who lived in the area. Officer Claeys testified that he then drove around the
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neighborhood, trying to find another damaged vehicle. According to his testimony,
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Officer Claeys saw a damaged blue Chevrolet Impala parked in Defendant’s driveway.
Upon conducting a brief comparison, Officer Claeys testified, he concluded that the blue
color of the damaged Impala matched the color of paint chips found near the Mercury
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Cougar.
According to Officer Claeys’ testimony, Officer Scarlotto met Officer Claeys at
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Defendant’s home to further investigate the damaged vehicles. Officer Claeys testified
that, after he rang Defendant’s doorbell several times and received no response,
Defendant opened the door and was fully clothed in dress slacks, shoes, and a button-
See Com. Ex. 1; Com. Ex. 8; admitted Sept. 30, 200.
29
N.T. Vol. I at 70, Sept. 28, 2009.
30
N.T. Vol. I at 69-70, Sept. 28, 2009.
31
N.T. Vol. I at 70-71, Sept. 28, 2009; see Com. Ex. 10A-E, admitted Sept. 30, 2009. Defendant
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estimated the distance between his residence and the scene of the accident to have been
approximately 500 feet. N.T. Vol. IV at 111, Oct. 1, 2009; see also Com. Ex. 1.
N.T. Vol. I at 71-73, Sept. 28, 2009; see Com. Ex. 11, admitted Sept. 30, 2009.
33
N.T. Vol. I at 74-76, Sept. 28, 2009 (According to his testimony, Officer Claeys arrived at
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Defendant’s home at approximately 6:16 a.m. N.T. Vol. I at 74, Sept. 28, 2009). According to
Officer Scarlotto’s testimony, he met Officer Claeys at Defendant’s home at approximately 6:23
a.m. N.T. Vol. II at 105, Sept. 29, 2009.
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down shirt. The officers testified that Defendant was stumbling slightly, leaned on the
door for balance, had bloodshot and glassy eyes, emanated a strong odor of alcohol, and
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displayed lethargic and slurred speech. The officers testified that they engaged
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Defendant in conversation and Defendant admitted that he had driven the vehicle that
the officers had observed in his driveway and that he had been involved in an accident
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prior to arriving at his residence. During this encounter, the officers testified that, based
on their training and experience, they each concluded that Defendant appeared to be
39
under the influence of alcohol. Officer Claeys testified that he asked Defendant how
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much alcohol he had consumed that evening, and that Defendant replied, “Enough.”
Officer Claeys testified, as did Officer Scarlotto, that Officer Claeys asked Defendant
whether Defendant had consumed any alcohol since he had been home, and that
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Defendant replied that he had not. Based on Defendant’s repeated assurances that he
had not consumed any alcohol since returning home, the officers concluded that, while
driving home, Defendant had been under the influence of alcohol to a degree that
42
rendered him incapable of safely operating the vehicle.
N.T. Vol. I at 75, Sept. 28, 2009; N.T. Vol. II at 106, Sept. 29, 2009.
35
N.T. Vol. I at 76, 80, Sept. 28, 2009; N.T. Vol. II at 75, 106-07, Sept. 29, 2009.
36
The vehicle driven by Defendant which struck the Swartzes’ car was a government car, issued as
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part of Defendant’s compensation package. N.T. Vol. IV at 80-81, Oct. 1, 2009.
N.T. Vol. II at 107-08, Sept. 29, 2009; N.T. Vol. I at 76, Sept. 28, 2009.
38
N.T. Vol. I at 76-77, 80, Sept. 28, 2009; N.T. Vol. II at 107-10, Sept. 29, 2009.
39
N.T. Vol. I at 77, Sept. 28, 2009.
40
N.T. Vol. I at 77-78, Sept. 28, 2009; N.T. Vol. II at 109-10, Sept. 29, 2009.
41
N.T. Vol. II at 5-6, 78-79, 109-10, Sept. 29, 2009.
42
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The officers testified that they placed Defendant under arrest and transported him
to a booking center at the Cumberland County Prison, where Booking Agent Rowe
administered a breath test to Defendant at approximately 7:19 in the morning; the test
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yielded a result of .199% blood alcohol content (BAC). Booking Agent Rowe testified
that he conducted an interview with Defendant, during which Defendant refused to
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answer certain questions regarding his alcohol consumption. Agent Rowe testified that
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Defendant denied having had any alcoholic drinks since he had stopped driving.
However, he also testified that, when asked at another point if he had had any alcoholic
drinks after the accident, Defendant claimed that he had been drinking a few cans of beer
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at home.
Officer Claeys testified that he retrieved the crash data recorder from Defendant’s
vehicle. Based on his experience as an accident reconstructionist, Officer Claeys opined
in his testimony that Defendant had failed to negotiate a curve, and that, because there
was neither a throttle nor a braking application during the four-second period prior to
N.T. Vol. I at 80, Sept. 28, 2009.
43
N.T. Vol. II at 69, Sept. 29, 2009; Com. Ex. 18, admitted Sept. 30, 2009.
44
Com. Ex. 20, admitted Sept. 30, 2009; see Def.’s Ex. 8, admitted Oct. 1, 2009.
45
N.T. Vol. II at 73-74, Sept. 29, 2009; N.T. Vol. IV at 126, 143-50, Oct. 1, 2009;
46
N.T. Vol. II at 74, Sept. 29, 2009; see Com. Ex. 20, admitted Sept. 30, 2009.
47
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Defendant’s striking a curb during the accident, it was likely that he was not cognizant
49
of what was occurring at the time of the incident.
William Wingert, an expert in forensic toxicology, calculated that, assuming
Defendant had not consumed alcohol from the time he arrived home until he took the
breath test, Defendant’s blood alcohol content at the time of the accident at 3:00 a.m.
would have been significantly higher than the .199% BAC recorded at the booking center
50
at 7:19 a.m.
Detective Sergeant Thomas Kauffman testified that he performed several
functional tests on Defendant’s vehicle and concluded that there were no issues with the
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steering column. Detective Sergeant Kauffman concluded, to a reasonable degree of
professional certainty, that Defendant’s vehicle showed no signs of a steering
malfunction or any other type of mechanical malfunction that would have prevented
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Defendant from properly negotiating the curve.
Gerald Wintermeyer testified that he purchased the damaged vehicle from the
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Swartzes after the accident. Mr. Wintermeyer testified that on April 17, 2009, a private
investigator working for Defendant came to his house and asked Mr. Wintermeyer to tear
See Com. Ex. 13, admitted Sept. 30, 2009; Com. Ex. 7A-E, admitted Sept. 30, 2009.
48
N.T. Vol. I at 97, Sept. 28, 2009. Officer Claeys characterized his condition as “unconscious.” Id.
49
N.T. Vol. II at 97, Sept. 29, 2009; see Com. Ex. 22, admitted Sept. 30, 2009.
50
N.T. Vol. II at 140, 146-51, Sept. 29, 2009; see Com. Ex. 25, admitted Sept. 30, 2009
51
N.T. Vol. II at 151, Sept. 29, 2009; see Com. Ex. 25; Com. Ex. 24, admitted Sept. 30, 2009.
52
N.T. Vol. III at 5-6, Sept. 30, 2009.
53
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open the door of the vehicle. Mr. Wintermeyer testified that he initially refused the
private investigator’s request, but approximately two weeks later decided to take apart the
55
car door to satisfy his own curiosity as to what the procedure might reveal. Mr.
Wintermeyer testified that, after taking apart the car door, he found Defendant’s business
56
card with Defendant’s phone number and street address handwritten on the back.
Joseph Kirsch, a neighbor of the Swartzes, testified that on April 28, 2009, his
wife noticed a separate business card of Defendant, with a similar message handwritten
57
on the card’s reverse side, outside the front door of their home, lying by a tree. Mr.
Kirsch testified that the card was somewhat weathered, but that the ink had not run and
that the handwriting was still clear when his wife found the card, approximately five
58
months after the incident.
On behalf of Defendant, Ray Zaborney testified that he met Defendant at a
bar/restaurant in downtown Harrisburg, Dauphin County, Pennsylvania at approximately
59
5:45 in the evening of Tuesday, November 25, 2008. Mr. Zaborney testified that he and
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Defendant parted ways at 8:15 p.m., but could not testify as to what Defendant had to
N.T. Vol. III at 6-8, Sept. 30, 2009.
54
N.T. Vol. III at 8, 11, Sept. 30, 2009.
55
N.T. Vol. III at 8-9, Sept. 30, 2009; Com. Ex. 26, admitted Sept. 30, 2009.
56
N.T. Vol. III at 17, Sept. 30, 2009; Com. Ex. 27, admitted Sept. 30, 2009.
57
N.T. Vol. III at 19, Sept. 30, 2009.
58
N.T. Vol. III at 39, Sept. 30, 2009.
59
N.T. Vol. III at 43, Sept. 30, 2009.
60
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drink at the establishment. Defendant’s mother, Helen Cwalina, testified that Defendant
visited her at her house in Shamokin, Northumberland County, Pennsylvania at
62
approximately 10:00 p.m. on Tuesday, November 25, 2008. Ms. Cwalina testified that
Defendant stayed at her house for approximately two-and-one-half hours, during which
time they had a conversation regarding a toothache that Defendant said he was
63
experiencing. Nikos Phelps testified that he had spoken with Defendant on the phone at
approximately 10:00 p.m. the same evening regarding Defendant’s picking up some
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personal belongings that he had left at Mr. Phelps’ house. Mr. Phelps testified that,
although he did not see Defendant at his home retrieving his belongings, the next
65
morning, when Mr. Phelps awoke, Defendant’s belongings were gone.
The defense called Albert Tilder, a neighbor of Defendant, who testified that he
did not see the damaged vehicle when he left for work at 6:00 in the morning on
66
Wednesday, November 26, 2008, and Cynthia Moody, a neighbor whose habit it was to
walk around the area where the accident occurred, who testified that she saw the
67
Swartzes outside inspecting the damage to their vehicle the morning of the incident.
N.T. Vol. III at 44, Sept. 30, 2009.
61
N.T. Vol. III at 45-46, Sept. 30, 2009.
62
N.T. Vol. III at 48-49, Sept. 30, 2009.
63
N.T. Vol. III at 56, Sept. 30, 2009.
64
N.T. Vol. III at 59, Sept. 30, 2009.
65
N.T. Vol. III at 68, Sept. 30, 2009.
66
N.T. Vol. III at 77, Sept. 30, 2009.
67
11
Multiple witnesses were called by the defense at trial to testify about the condition
68
of the vehicle in terms of alleged mechanical problems. Cathy Garrett, the Director of
Vehicle Management for the Department of General Services, testified regarding the
69
procedures used by the agency for repairs performed on government-issued vehicles.
Thomas D’Annunzio, an Automotive Officer for the Pennsylvania Department of Labor
and Industry, testified that, during the year prior to the accident, Defendant had had
numerous repairs performed on the Impala, a state vehicle assigned to him, and on
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several occasions had requested a different vehicle because of various malfunctions. On
cross-examination, Mr. D’Annunzio testified that when Defendant brought his vehicle in
for repairs following the accident on the morning of November 26, 2008, Defendant said
71
the accident had occurred because of hydroplaning. Nathan Bortner, Defendant’s
assistant, testified that he once heard a rubbing noise during turns while in the vehicle
72
with Defendant. Michael Peterson, the Director of the Bureau of Administrative
Services, testified that Defendant’s Impala had been subject to numerous repairs, but was
73
not aware of any alleged problems with the vehicle’s brakes. Mark Shaffer, who said
that he had driven Defendant’s vehicle on at least one occasion before the accident,
See N.T. Vol. III at 95-110, 145-154, 156-158, Sept. 30, 2009; N.T. Vol. IV at 5-20, Oct. 1, 2009.
68
N.T. Vol. III at 87-88, Sept. 30, 2009.
69
N.T. Vol. III at 99-115, Sept. 30, 2009; see e.g. Defendant’s Exhibit 12, admitted Oct.1, 2009
70
(hereinafter Def.’s Ex. _____); Def.’s Ex. 13, admitted Oct.1, 2009.
N.T. Vol. III at 119, Sept. 30, 2009.
71
N.T. Vol. III at 125-126, Sept. 30, 2009.
72
N.T. Vol. III at 151, 153-54, Sept. 30, 2009.
73
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testified that he heard the same type of rubbing sounds, but noticed no problem with the
74
brakes.
75
Dr. Lawrence Guzzardi, an expert in toxicology, testified that it was possible that
if Defendant had consumed nine to thirteen drinks between 3:15 a.m., the time Defendant
returned home, and 6:00 a.m., the approximate time the officers arrived at Defendant’s
76
house, his BAC could have been .199% at the time of the breath test. William Vigilante,
77
an expert in ergonomics, testified that it was his opinion that the crash must have
occurred due to a steering malfunction, because no other explanation proffered would
78
explain the circumstances of the accident. Peter Leiss testified on behalf of Defendant
that he found a certain malfunction with the steering column that caused a rubbing
79
noise, but could not testify that this deficiency definitely caused a steering
80
malfunction. Guatam Ray, a professor of Engineering, testified that, based on his
calculations, it was his opinion that the hood of the vehicle would have still been warm to
the touch four hours after the engine was turned off, but the vehicle’s tail pipe would
81
have been cold within thirty minutes after stopping the vehicle.
N.T. Vol. III at 157-159, Sept. 30, 2009.
74
Def.’s Ex. 15, admitted Oct.1, 2009.
75
N.T. Vol. III at 140, Sept. 30, 2009; Def.’s Ex. 16, admitted Oct.1, 2009.
76
N.T. Vol. IV at 55, Oct. 1, 2009.
77
N.T. Vol. IV at 69, Oct. 1, 2009; Def.’s Ex. 24, admitted Oct. 1, 2009.
78
N.T. Vol. IV at 29-31, Oct. 1, 2009.
79
N.T. Vol. IV at 48, Oct. 1, 2009.
80
N.T. Vol. IV at 19-20, Oct. 1, 2009; but cf. N.T. Vol. II at 114-117, Sept. 29, 2009 (Officer Scarlotto
81
testified that he felt the hood and tailpipe of the Chevy Impala upon arriving at Defendant’s
13
According to Defendant’s own testimony, after leaving Mr. Zaborney’s presence
82
on Tuesday evening, November 25, 2008, he traveled to his mother’s house in
Shamokin, Northumberland County, Pennsylvania to retrieve his dental records, because
he intended to see a dentist regarding a toothache that was being aggravated by a sinus
83
infection. Defendant testified that he next traveled to Mr. Phelps’ house to retrieve his
84
belongings. Defendant testified that, on his way home, he experienced a steering
8586
malfunction which caused him to hit the Swartzes’ vehicle. According to Defendant’s
87
testimony, after hitting the vehicle, he unsuccessfully attempted to locate the owner,
88
and in lieu thereof left two business cards on the vehicle with his contact information,
the first of which slipped into the bottom of the driver’s side door panel, prompting
89
Defendant to leave the second card. Defendant testified that he then drove his vehicle
home, parked the car in the driveway, unloaded the belongings he retrieved from Mr.
residence in order to ascertain whether the vehicle was recently driven. According to the officer’s
testimony, both the hood and tailpipe were warm to the touch); see N.T. Vol. IV at 108, Oct. 1,
2009 (Defendant admitted that the accident occurred at approximately 3:00 a.m. on Wednesday,
November 26, 2008).
N.T. Vol. IV at 86, Oct. 1, 2009.
82
N.T. Vol. IV at 87-89, Oct. 1, 2009. Defendant testified he arrived at his mother’s house in
83
Shamokin at approximately 10:15p.m. N.T. Vol. IV at 91, Oct. 1, 2009.
N.T. Vol. IV at 99, Oct. 1, 2009.
84
N.T. Vol. IV at 103, Oct. 1, 2009.
85
N.T. Vol. IV at 108, Oct. 1, 2009.
86
N.T. Vol. IV at 109, Oct. 1, 2009.
87
Defendant testified that he was unable to locate the financial information at the time of the
88
accident. N.T. Vol. IV at 109-10, Oct. 1, 2009. The writing on the back of his business cards said:
“Hit your car, call me at 343-4670.” Com. Ex. 26, admitted Sept. 30, 2009; N.T. Vol. III at 9, Sept.
30, 2009. The card did not indicate any other identifying information of the vehicle, such as the
registration number of the vehicle or financial information.
N.T. Vol. IV at 110, Oct 1, 2009.
89
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Phelps’ house, and then began consuming alcohol to self-medicate his toothache.
According to Defendant’s testimony, the first time he consumed alcohol on the morning
in question was at 3:00 a.m., after he had already returned home and before Officers
92
Claeys and Scarlotto arrived at his residence. Defendant testified that the officers did
not question him about his consumption of alcohol during their conversation in his
93
home. When questioned on cross-examination regarding his allegedly inconsistent
statements and refusal to answer certain of Booking Agent Rowe’s questions during the
booking procedure, Defendant testified that he had refrained from responding for privacy
94
reasons.
At the conclusion of the trial, and following closing arguments, the jury found
95
itself deadlocked as to the charge before it at Count 2, Driving under the Influence,
Highest Rate of Alcohol, and pursuant to an agreement of counsel, the court declared a
96
mistrial. As to the remaining charges, the court found Defendant guilty at Count 1 of
97
Driving under the Influence, General Impairment, a misdemeanor, guilty at Count 3 of
N.T. Vol. IV at 111-14, Oct. 1, 2009.
90
N.T. Vol. IV at 116, Oct. 1, 2009.
91
N.T. Vol. IV at 114, Oct. 1, 2009 (Defendant testified he drank three or four 12 ounce beers and
92
eight to ten shots of Crown Royale Liquor between 3:00 a.m. until 4:00 a.m.); N.T. Vol. IV at 114-
116, Oct. 1, 2009; see also N.T. Vol. IV at 133, Oct. 1, 2009.
N.T. Vol. IV at 123, 133, Oct. 1, 2009.
93
N.T. Vol. IV at 145-150, Oct. 1, 2009. The Commonwealth, however, questioned why Defendant
94
refused to answer certain questions and answered other questions, which was unexplained by
Defendant; See Com. Ex. 20, admitted Sept. 29, 2009.
75 Pa. C.S. §3802(c).
95
Notes of Testimony, Volume V, 11, Trial, Oct. 2, 2009 (hereinafter N.T. Vol. V, _____, Oct. 2, 2009);
96
Order of Court, In Re: Mistrial, Oct. 2, 2009.
75 Pa. C.S. §3802(a)(1).
97
15
98
Accident Involving Damage to Unattended Vehicle or Property, a summary offense,
and guilty at Count 4 of Driving under the Influence, General Impairment, with
99100
Accident, a misdemeanor.
Defendant was sentenced at Count 3 to pay a fine of $300.00, and at Count 4 to
undergo a period of imprisonment of not less than 30 days nor more than six months and
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to pay a fine of $750.00. Defendant’s notice of appeal from the judgment of sentence
102
was filed on March 10, 2010.
As noted previously, Defendant’s appeal challenges the judgment of sentence on
the basis of sufficiency of the evidence, weight of the evidence, and inconsistency of the
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court’s verdict with the jury’s inability to reach a verdict on the charge before it.
DISCUSSION
Sufficiency of the Evidence. On a challenge to the sufficiency of the evidence in a
criminal case, the proper test is “whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner and drawing all proper inferences
favorable to the Commonwealth, the trier of fact could have determined all the elements
of the crime have been established beyond a reasonable doubt.” Commonwealth v.
O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290, quoting Commonwealth v.
75 Pa. C.S.A. §3745.
98
75 Pa. C.S.A. §3802(a)(1); Act of Nov. 29, 2004, P.L. 1369, §3, as amended 75 Pa. C.S. §3804(b).
99
Order of Court, In Re: Verdict, Oct. 2, 2009.
100
Pursuant to an agreement of counsel, the sentence as to Count 1 was deemed to have merged
101
with the sentence imposed at Count 4. Order of Court, In Re: Sentencing, Dec. 8, 2009.
Defendant’s Notice of Appeal, filed March 10, 2010. Defendant remains at liberty on his own
102
recognizance pending disposition of the appeal. Order of Court, In Re: Sentencing, Dec. 8, 2009.
16
Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Rokowski, 2010
PA Super 3, ¶3, 987 A.2d 1215, 1217. A conviction is proper if the evidence presented at
trial is sufficient to allow the “fact finder to find every element of the crime charged
beyond a reasonable doubt.” Commonwealth v. Coleman, 2009 PA Super 229, ¶6, 984
A.2d 998, 1000.
A challenge to the sufficiency of the evidence does not implicate a weighing of the
evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135, citing
Commonwealth v. Cassidy, 447 Pa. Super. 192, 668 A.2d 1143, 1144 (1995). The trier of
fact, while passing upon the credibility of witnesses and the weight to be afforded to the
evidence produced, is “free to believe all, part or none of the evidence.” Commonwealth
v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (citations omitted)
(evidence of officer’s perception, defendant’s admission to drinking, and circumstances
of collision should be viewed in the aggregate).
With respect to driving under the influence, under Section 3802(a)(1) of the
Vehicle Code, it is provided that 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. 75 Pa. C.S. §3802(a)(1).
104
Section 3802(a)(1), like its predecessor statute, is “a general provision and provides no
See Defendant’s Concise Statement of Errors Complained of on Appeal, filed Mar. 25, 2009.
103
The Pennsylvania Supreme Court agreed with the Pennsylvania Superior Court’s interpretation
104
of Section 3801(a)(1) as being proper, when the Pennsylvania Supreme Court stated, “75 Pa.C.S.
§3731(a)(1) is the predecessor to 75 Pa.C.S. §3802(a)(1), and was not changed in any material
17
specific restraint upon the Commonwealth in the manner in which it may prove that an
accused operated a vehicle under the influence of alcohol to a degree which rendered him
incapable of safe driving.” Commonwealth v. Segida, ___ Pa. ____, 985 A.2d 871, 876-
77 (Pa. 2009). Where an accident is involved, Section 3804(b)(2) provides for an
enhanced mandatory minimum sentence as follows:
An individual who violates section 3802(a)(1) where there was an accident
resulting in bodily injury, serious bodily injury or death of any person or
damage to a vehicle or other property or who violates section 3802(b), (e)
or (f) shall be sentenced as follows:
(2) For a second offense, to:
(i) undergo imprisonment of not less than 30 days;
(ii) pay a fine of not less than $750 nor more than $5,000;
(iii) attend an alcohol highway safety school approved by the
department; and
(iv) comply with all drug and alcohol treatment requirements imposed
under sections 3814 and 3815.
75 Pa. C.S. §3804(b)(2).
Typical indicia of this form of driving under the influence include a motorist’s
105106
admission of the consumption of alcohol, the odor of an alcoholic beverage, an
107108109110
unsteady gait, bloodshot and glassy eyes, slurred speech, lethargy, a BAC level
fashion when the new DUI law was enacted.” Commonwealth v. Segida, ___, Pa. ____, 985 A.2d 871,
879 (2009), quoting Commonwealth v. Segida, 2006 PA Super 296, 912 A.2d 841, 849 n.4;
Commonwealth v. McCoy, 2006 PA Super 33, 895 A.2d 18, 31, n. 7, aff’d on other grounds, 975
A.2d 586 (Pa. 2009).
See Commonwealth v. Rokowski, 2010 PA Super 3, ¶12, 987 A.2d 1215, 1219 (defendant’s
105
admission that he was drinking, specifically after he stopped driving, is a factor the finder of fact
may consider when evaluating whether defendant actually operated his vehicle while
intoxicated); see Griscavage, 512 Pa. 540, 517 A.2d 1256.
See Commonwealth v. Kowalek, 436 Pa. Super. 361, 847 A.2d 948 (1994).
106
See Commonwealth v. Smith, 2006 PA Super 174, ¶¶16-17, 904 A.2d 30, 39.
107
108
Commonwealth v. Segida, ___ Pa. ____, 985 A.2d 871, 879 (2009) (types of evidence that the
Commonwealth may proffer in a prosecution for DUI, general impairment, include but are not limited
18
111112
in excess of the legal limit, unsafe driving, the opinion of a qualified police officer
that the motorist was under the influence of alcohol to a degree which rendered him or
113
her incapable of safe driving, and the occurrence of a one-vehicle accident under
114
circumstances suggestive of serious driver error.
In addition, evidence generally supportive of a criminal prosecution includes a
115
defendant’s flight from the scene of the alleged crime, his or her prior statements
116
inconsistent with present testimony, his or her contradictory statements to
to: physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of
alcoholic beverage on his breath; slurred speech; and blood alcohol level); see Commonwealth v.
Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000); Commonwealth v. Kowalek, 436 Pa. Super. 361, 369, 847
A.2d 948, 952 (1994) (defendant’s bloodshot eyes, slurred speech, strong odor of alcoholic beverage,
and difficulty in producing license are factors that may be considered to support a finding of
intoxication for purposes a DUI conviction).
See Commonwealth v. McCoy, 2006 PA Super, 33, ¶2, 895 A.2d 18,23, aff’d on other grounds 975
109
A.2d 586 (Pa. 2009); Commonwealth v. Nicotra, 425 Pa. Super. 600, 603-04, 625 A.2d 1259, 1261
(1993).
See Commonwealth, Dept. of Transp. v. Humphrey, 136 Pa. Commw. 515, 520, 583 A.2d 868, 871
110
(1990).
Segida, supra, n. 3; 985 A.2d at 891, Commonwealth v. Zugay, 2000 PA Super 15, ¶¶16-17, 745
111
A.2d 639, 646; cf. Commonwealth v. Freidi, 2003 PA Super 379, 834 A.2d 638; Commonwealth v.
Hilliar, 2008 PA Super 22, ¶22, 943 A.2d 984, 995-96.
See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v.
112
Petro, No. 94-1619 Crim. Term (Cumberland Co. Nov. 1, 1995).
Commonwealth v. Palmer, 751 A.2d 223, ¶16 (Pa. Super. Ct. 2000) (decided under 75 Pa. C.S.
113
§3731, repealed by 75 Pa. C.S. §3802); see supra, n. 104.
See, e.g., Commonwealth v. Mahaney, 373 Pa. Super. 129, 135, 540 A.2d 556, 559 (1988);
114
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).
Commonwealth v. Clark, 599 Pa. 204, 224, 961 A.2d 80, 91-92 (2008) (evidence of flight as
115
tending to show consciousness of guilt).
See Commonwealth v. Edwards, 588 Pa. 151, 183, 903 A.2d 1139, 1158 (2006) (a party’s prior
116
statements may be used against him if the statement is inconsistent with his position at trial).
19
117118
authorities, false testimony on the part of the defendant, and a defendant’s attempt to
119
fabricate evidence.
In the present case, evidence was presented which arguably supported the
conclusion that all of these factors were present in Defendant’s case, including the
fabrication of evidence in the form of identification supposedly left at the scene of the
accident but discovered in plain view months later. Viewed in the light most favorable to
the Commonwealth, the evidence, in the court’s view, was more than sufficient to show
that Defendant had driven a vehicle on a public highway or trafficway at a time when he
was under the influence of alcohol to a degree that rendered him incapable of safe
driving, and that an accident had ensued.
With respect to leaving the scene of an accident, Section 3745 of the Vehicle Code
provides as follows:
The driver of any vehicle which collides with or is involved in an
accident with any vehicle or other property which is unattended resulting in
any damage to the other vehicle or property shall immediately stop the
vehicle at the scene of the accident or as close thereto as possible and shall
then and there either locate and notify the operator or owner of the
damaged vehicle or other property of his name, address, information
relating to financial responsibility and the registration number of the
vehicle being driven or shall attach securely in a conspicuous place in or
on the damaged vehicle or other property a written notice giving his name,
address, information relating to financial responsibility and the registration
number of the vehicle being driven and shall without unnecessary delay
See Commonwealth v. Sauders, 390 Pa. 379, 388-89, 134 A.2d 890, 895 (1957) (citations omitted)
117
(false or contradictory statements made by the accused with an intent to mislead authorities
may be indicatory of guilt).
See Commonwealth v. Lilliock, 1999 PA Super 244, ¶17, 740 A.2d 237, 244 (“false in one, false in
118
all” principle).
Cf. Commonwealth v. Knapp, 374 Pa. Super. 160, 166-67, 542 A.2d 546 548-49 (1988) (attempt to
119
have witness testify untruthfully is admissible as evidence of guilt).
20
notify the nearest office of a duly authorized police department. Every stop
120
shall be made without obstructing traffic more than is necessary.
In the present case, several of the factors enumerated above also supported the
prosecution of Defendant for leaving the scene of an accident. Furthermore, the finder of
fact was not required to credit Defendant’s testimony and other evidence designed to
show that he had in fact left identification at the scene. For this reason, it is believed that
the evidence was also sufficient to permit a fact-finder to conclude that Defendant had
been proven guilty beyond a reasonable doubt of leaving the scene of an accident.
Weight of the Evidence. With respect to a challenge based upon the weight of the
evidence, several principles are applicable. It may be noted, initially, that a challenge to
the weight of the evidence is preserved for purposes of appeal by raising the issue or a
121
post-sentence motion. Pa. R. Crim. P. 607(A); see Commonwealth v. Causey, 2003 PA
Super 351, ¶18, 833 A.2d 165, 173. In the present case, the issue was preserved in this
manner by Defendant.
A weight of the evidence claim is to be considered in the context of the principle
that the finder of fact is “free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses.” Commonwealth v. Champney, 574 Pa. 435, 444, 832
A.2d 403, 408 (2003). A new trial will not be granted on the basis of the weight of the
evidence unless a miscarriage of justice has occurred such that the “verdict is so contrary
to the evidence as to shock one’s sense of justice.” Thompson v. City of Philadelphia, 507
75 Pa. C.S. §3745 (emphasis added).
120
Defendant’s Post-Sentence Motion, filed Dec. 17, 2009.
121
21
Pa. 592, 598, 493 A.2d 660, 672 (1985); Commonwealth v. Champney, 574 Pa. at 444,
832 A.2d at 410. As a general rule, “a new trial should not be granted because of a mere
conflict in testimony.” Thompson, 507 Pa. at 598, 493 A.2d at 672.
In the present case, the verdicts complained of obviously did not shock the court’s
sense of justice, inasmuch as they were entered by the court. As noted in the recitation of
facts, the evidence of the Commonwealth was quite strong, and acceptance of
Defendant’s position that the Prosecution’s evidence was overwhelmed by evidence of
the defense would disregard the principles that mere conflicts in the evidence do not
generally warrant the award of a new trial and that the trier-of-fact is not compelled to
believe every item of evidence presented.
Inconsistency of Court’s Verdict with Jury’s Deadlock. In Pennsylvania, during a
consolidated jury/nonjury trial, the trial court is not required to defer to the findings of the
jury on common factual issues. Commonwealth v. States, 595 Pa. 453, 466, 938 A.2d
1016, 1024 (2007); Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375, 376-77(1971).
Further, the law is clear that inconsistent verdicts are permissible in Pennsylvania. Id;
Commonwealth v. States, 595 Pa. at 467, 938 A.2d at 1025 (even an illogical
inconsistency in verdicts is not alone grounds for a new trial), citing Commonwealth v.
Strand, 464 Pa. 544, 347 A.2d 675, 676 (1975); Commonwealth v. Rakowski, 2010 PA
Super 3, ¶16, 987 A.2d 1215, 1220. During such a proceeding, the trial court is free to sit
as fact finder and to weigh the evidence and render a verdict on the charges before it. See
Commonwealth v. Wharton, 406 Pa. Super. 430, 436-37, 594 A.2d 696, 699 (1991).
22
In the present case, the finding of the court that Defendant had been driving under
the influence of alcohol to a degree rendering him incapable of safe driving was not, in
fact, inconsistent with the jury’s inability to find that his BAC level had been at a certain
point following the incident. The elements of these two forms of driving under the
influence are not identical, and a person could be guilty in a single incident of either
form, both forms, or neither form. In addition, as noted above, even an inconsistent result
in that regard would not serve to invalidate the conviction.
For the foregoing reasons, it is believed that the judgment of sentence appealed
from was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
David J. Freed, Esq.
Cumberland County District Attorney
William C. Costopoulos, Esq.
831 Market Street
P.O. Box 222
Lemoyne, PA 17043
Attorney for the Defendant
23