HomeMy WebLinkAboutCP-21-CR-1418-2004
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
GERALD ROSS CONYERS, JR.
NO. 21-CRIMINAL 1418 - 2004
IN RE: OPINION PURSUANT TO Pa. RA.P. 1925
Guido, J., February
, 2005
On November 4,2004, after a bench trial, we found the defendant guilty, inter
alia, of violating Section 3802(a)(1) of the Vehicle Code.1 Specifically, we found
beyond a reasonable doubt that he drove a vehicle after imbibing enough alcohol so as to
render him incapable of safe driving and that "he refused to give a breath test after
properly receiving his 0 'Connell warnings.,,2 However, we also found "that no Miranda
warnings were given and the Defendant was not advised of his right to counsel prior to
refusing the breath test.,,3
On January 4,2005, we imposed the mandatory minimum sentence of90 days in
jail as well as appropriate fines.4 The defendant subsequently filed this timely appeal.
The only issue raised on appeal was preserved by defendant's counsel at trial in the
following exchange:
MR. ADAMS: I would - although I'm not even sure how you
couch this, I would repeat the arguments that have been made to various
courts that you should not find a refusal if he was not advised to his right
to counsel, because he should have been given a right to counsel prior to
refusal.
1 75 Pa. C.S.A. ~ 3802(a)(1).
2 See Trial Transcript, p. 40.
3 See Trial Transcript, p. 40.
4 The defendant was continued on bail pending the appeal.
THE COURT:
case?
MR. ADAMS:
I understand that. Has that been ruled on in this
In this case, no.
THE COURT:
But it has been ruled on in this county?
MR. ADAMS:
It has been ruled on in this county.
THE COURT: I recall at the pretrial you said that you could raise
this issue at trial rather than delaying things and -
MR. ADAMS: Exactly. You suggested at that time that you would
follow the decisions, and we weren't sure what they were. I can tell you
that both opinions were that the right to counsel did not exist at that point
in time.
THE COURT: Okay. So I am actually bound by those opinions if
they come from this Court unless a panel en banc overrules them. If
you're telling me that's the case law of this jurisdiction, I'm bound to
follow it.
MR. ADAMS:
That is the case law. 5
The primary case referred to by counsel was Commonwealth v. Nerat, CP-21-
Criminal 983-2004 decided by Judge Bayley on October 8, 2004. A copy of his opinion
is attached hereto.
DATE
Edward E. Guido, J.
Michelle H. Sibert, Esquire
For the Commonwealth
H. Anthony Adams, Esquire
F or the Defendant
:sld
5 See Trial Transcript, pp. 38 - 39.