HomeMy WebLinkAboutCP-21-CR-0233-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
SHAINNON A. AUCHEY: CP-2l-CR-233-2005
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., January 17, 2006.
In this criminal case, Defendant has filed a pro se appeal to the
Pennsylvania Superior Court following a judgment of sentence for driving under
the influence (third offense).l The bases for the appeal, many of which were not
raised in this court, have been expressed in a statement of matters complained of
on appeal as follows:
1. That counsel was ineffective, and prejudicial to Defendant's case to
wit: Counsel did not address issues of which had arguable merit. Counsel
had no reasonable basis for this action or inaction.
(i) Failing to communicate with Defendant
concerning the nature and substance of Defendant's
claims throughout the entire time of his representation of
Defendant (February 2005 until July 2005).
(ii)Failure to challenge legality of initial traffic stop.
(iii) Failing to obtain and/or present additional
records, physical exhibits, testimony and other evidence
supportive of Defendant's claims of innocence.
(iv) Failing to meet, prepare, and interview witness,
and further failing to elicit relevant testimony from said
witness
(v) Failure to provide booking video to expert
witness or Defendant
(vi) Failure to review or introduce as evidence
photographs and video as rebuttal to prosecutions
testimony from said witness
(vii) Failure to introduce subpoenaed witnesses
1 Notice of Appeal, filed November 17, 2005. The Notice of Appeal incorrectly indicates that it
is from an order denying post-sentence motions. See Commonwealth v. Chamberlain, 442 Pa.
Super. 12, 16,658 A.2d 395,397 (1995).
(viii) Failure to object to Commonwealth's personal
opinions and statements not supported by evidence
2. Presentation of Evidence -
(i) Challenging the weight of evidence that the Trial
Court erred in its determination finding Defendant guilty
beyond a reasonable doubt
(ii) That the Trial Court erred in its determination
finding Defendant guilty of highest rate
(iii) Defendant's presentation of margin of error the
Intoxilyzer 5000 can produce
(iv) Defendant entered Expert testimony concerning
BAC due to margin of error at the time of alleged driving
infractions
(iv) Commonwealth's lack of providing expert
testimony as to "relating back" as to determine what the
BAC was while operating a motor vehicle
3. Defendant challenges the record that shows the Defendant had two
previous DUls' when in fact the Defendant was found guilty of only one.
4. Discrepancies made during or involving Pre-Sentencing
Investigation
(i) Defendant was never interviewed for PSI therefore
denied his right to enter Mitigating Evidence.
(ii) PSI was never reviewed with Defendant before
sentencing
5. The sufficiency of evidence at the time of Defendant's contact with
law enforcement and while the Defendant was being processed
(i) Wrong registration on vehicle
(ii) Improbability of seeing vehicle from distance,
shrubbery, inadequate lighting
(iii) Impossibility of legitimacy of SFST during
initial contact with Defendant due to lack of time; BAC
results were not obtained during recommended guidelines
for accurate results
(iv) Rediscovered evidence - Defendant was not
advised of the right to counsel before being asked to take
the Breathlyzer Test
(v) Defendant was denied a "blood test" to ensure
accuracy of BAC
(vi) Operator ofIntoxalyzer 5000 failed to observe 15
min. depravation period; failed to clear prior results; failed
to wait at least 4 minutes between samples; took breath
samples that were longer than 10 seconds potentially
resulting in higher BAC reading
2
6. I reserve the right to raise further issues after transcripts are made
available. 2
This opinion in support of the judgment of sentence appealed from IS
written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As a result of an incident occurring on December 22, 2004, a complaint
was filed on December 27, 2004, charging Defendant with driving under the
influence, inter alia.3 The complaint was served upon him by summons.4
Defendant was incarcerated because of a violation of his parole on a prior
DUI conviction, but he remained free on the new charges. This status continued
through the preliminary hearing, 5 trial and verdict6 stages of his case. At
sentencing on June 28, 2005, no reference was made to bail, and his subsequent
motion for release pending appeal was approved on August 23, 2005?
Defendant was formally arraigned, with private counsel, on March 22,
2005.8 Various oral pretrial motions were made on his behalf.9 These pretrial
motions were disposed of by the Honorable Edgar B. Bayley of this court on May
9, 2005,10 and Defendant proceeded to a jury trial which commenced on May 26,
2005. The evidence at trial, viewed in the light most favorable to the
Commonwealth,ll may be summarized as follows:
2 Defendant's Concise Statement of Matters Complained of on Appeal, filed December 2,2005.
3 Criminal Complaint, filed December 27,2004.
4 Subpoena to Appear for Formal Arraignment, filed February 2,2005.
5 NT. Trial 194, Trial, May 26-27,2005 (hereinafter NT. -----" Trial).
6 NT. 193-94, Trial; Pretrial Conference, April 26, 2005.
7 NT. 2-7, Sentencing Proceeding, June 28,2005 (hereinafter NT. _, Sentencing Proceeding);
Order of Court, August 23,2005.
8 Order of Court, March 22, 2005.
9 NT. 5-6, Pretrial Hearing, May 9, 2005.
10 Order of Court, May 9, 2005.
11 In a post-sentence motion, Defendant, inter alia, challenged the sufficiency of the evidence but
not the weight of the evidence. In an evaluation of the sufficiency of the evidence presented at
trial, the evidence is to be viewed "in the light most favorable to the Commonwealth" and the
3
On Wednesday, December 22, 2004,12 at about 1:08 a.m.,13 while operating
a police car on a road known as the Carlisle Pike,14 Officer Thomas Speck of the
Hampden Township, Cumberland County, Police Department observed an Isuzu
Trooper motor vehicle enter the parking lot of the Sierra Madre Bar at the
intersection of the Carlisle Pike and Oak Street at what he regarded as an
umeasonable rate of speed.15 The vehicle disappeared from his view behind the
back of the establishment and emerged onto Oak Street, heading back toward the
Carlisle Pike. The vehicle turned right onto the Carlisle Pike without stopping at a
stop sign, proceeded one block, made a right turn off the Carlisle Pike onto 39th
Street, made a left turn onto Chestnut Street, made a left turn onto 38th Street
without stopping at a stop sign, and proceeded back toward the Carlisle Pike. In
making another right turn onto the Carlisle Pike, the vehicle went over the curb;
this latter incident was described by the officer as follows:
. . . [H]e had evidently turned his wheel very sharply
because he actually-the front wheels brushed the curb
bouncing up onto the edge of the curb, and then his rear wheel
actually drove over the curb, and the vehicle bounced back
down onto the road. Being lifted up at the rear portion of the
vehicle, it actually set it off balance. The Trooper is a fairly
tall top heavy vehicle. So as it entered the roadway again it
actually went up, came down, bounced, bounced back again,
and during this time, of course, he was turning right so the
weight was being thrown to one side, and then he bounced
Commonwealth is to be given the benefit of "all reasonable inferences in [its] favor."
Commonwealth v. Jones, 449 Pa. Super. 58,61,672 A.2d 1353, 1354 (1996). The trier of fact is
"free to believe all, part or none of the evidence." Commonwealth v. Griscavage, 512 Pa. 540,
543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403
A.2d 536,538-39 (1979).
12 NT. 7, Trial.
13 NT. 52, Trial.
14 NT. 9, Trial.
15 NT. 8, Trial.
4
back and forth a couple of times and proceeded down the
Carlisle Pike. 16
The vehicle pulled into the parking lot of a cigarette store, and Officer
Speck pulled in behind it. 17 At this time, the officer momentarily activated his
flashing lights and siren to alert the Isuzu's driver that there was a vehicle behind
h. IS
1m.
The driver of the Isuzu, who was Defendant, got out of his vehicle.19 His
pants revealed a urine stain in the crotch area?O Defendant's breath emitted an
odor of an alcoholic beverage, his speech was very slurred and, when asked, he
initially said that he did not know where he was going.21 Defendant claimed to
have no identification,22 advised that he did possess a Fraternal Order of Police
card, asked the officer to give him a break because he had been a marine, and
admitted that he should not have been driving?3 On the one-leg-stand field
sobriety test, Defendant fell into a pattern of touching the ground with his raised
foot and the officer stopped the test after twenty seconds;24 on the walk-and-turn
field sobriety test, Defendant counted incorrectly, started again, stepped off the
line of travel, and declined to continue?5
In the opinion of Officer Speck, a thirteen-year veteran of the police force
with extensive training and experience in dealing with drunk drivers and
16 NT. 14, Trial.
17 NT. 15-16, Trial.
18 NT. 16-17,61, Trial. Prior to this time, the officer had not activated either his lights or his
siren. NT. 60, Trial.
19 NT. 17, Trial.
20 NT. 20, Trial.
21 NT. 25-26, Trial.
22 NT. 21, Trial.
23 NT. 22, 24-25, Trial.
24 NT. 26-31, Trial.
25 NT. 31-34, Trial.
5
intoxicated persons in general,26 Defendant was under the influence of alcohol to a
degree that rendered him incapable of safe driving. 27 Defendant was arrested at
28
1 :22 a.m.
Defendant was transported to a booking center in Carlisle, Cumberland
County, Pennsylvania,29 where he attempted to perform the field sobriety tests
previously administered. On the one-leg-stand test, he put his foot down and
swayed;30 on the walk-and-turn test, he started prematurely and made an incorrect
turn. 3 1 His breath emitted a strong odor of an alcoholic beverage.32 After
administration of the implied consent warnings,33 Defendant agreed to take a
breath tese4 and booking center personnel observed the twenty-minute waiting
period applicable to such tests.35 The administrator of the test was not a
phlebotomist, there was no equipment available at the booking center to draw
blood, and no evidence was presented at trial that Defendant requested that a blood
test be administered. 36
A breath test administered at 2:25 a.m. produced a BAC test result of
.164%?7 A second test, administered at 2:26 a.m., yielded a result of .165%?8
The person who administered the test was certified in the operation of the
26 NT. 6, 69, Trial.
27 NT. 36, Trial.
28 NT. 74, Trial.
29 NT. 75-78, Trial.
30 NT. 108, Trial.
31 NT. 98, Trial.
32 NT. 94, Trial.
33 NT. 75, Trial.
34 NT. 76, Trial.
35 NT. 87, 94, Trial.
36 NT. 84-85, 93-94, Trial.
37 NT. 92, Trial.
38 NT. 166, Trial; Commonwealth's Ex. 5, Trial.
6
instrument, an Intoxilizer 5000.39 This instrument had been approved for such use
by the state.40 The intoxilizer used in the test had been properly calibrated and
subjected to an accuracy test. 41 A preliminary test on a known .10% solution
yielded a result of .097%.42
Defendant did not testify at trial. His primary witness was a toxicologist
who testified that, in his opinion, because of various deviations from the norm and
margins of error, it could not be said that Defendant's BAC level was .16% or
greater at the time the breath test was administered.43 However, he also stated that
Defendant's actual BAC level at the time of the test was "around .164," and that it
might have been as high as .18%.44
At the conclusion of the trial, the jury found Defendant guilty of driving
under the influence in the form of driving after imbibing, highest rate of alcohol
(.16% BAC or greater),45 and driving under the influence in the form of driving
after imbibing, general impairment. 46 A presentence investigation report was
ordered, which revealed an ARD disposition for driving under the influence in
1999 and a prior conviction for driving under the influence in 2004.47
Defendant's counsel at sentencing indicated that Defendant had not been
interviewed for the presentence investigation report.48 However, he stated that
39 NT. 84, Trial.
40 NT. 91, Trial.
41 NT. 85-88, Trial.
42 NT. 123-24, Trial.
43 NT. 128-64, Trial.
44 NT. 145, Trial.
45 NT. 193, Trial; Order of Court, May 27,2005.
46 NT. 192-93, Trial; Order of Court, May 27,2005.
47 Presentence Investigation Report, June 16,2005, at 2.
48 NT. 2, Sentencing Proceeding.
7
Defendant was basically satisfied with the report, and declined an invitation of the
court to request a postponement of the sentence if he felt it would be useful.49
Defendant was sentenced on the charge of driving under the influence in
the form of driving after imbibing, highest rate, to the mandatory minimum
sentence applicable to a third offense, said sentence to run consecutively to the
prior sentence which he was then serving on the parole revocation; 50 the charge of
driving under the influence in the form of driving after imbibing, general
impairment, was deemed to merge with the more serious charge for purposes of
sentencing. 5 1 The court authorized Defendant's service of the sentence in the
Cumberland County Prison. 52
Following sentence, Defendant filed several motions. Four motions that
were filed by Defendant without his attorney's participation were forwarded to his
counsel by the Clerk of Courts pursuant to Pennsylvania Rule of Criminal
Procedure 576(A)(4). These were (a) Defendant's "Pro-Se Petition for Time
Credit Pursuant to Rule 42 P A.C.S.A. 9760(2)," filed July 7, 2005, (b)
Defendant's "Notice of Appeal" to the "Commonwealth of Pennsylvania," filed
July 7, 2005, (c) Defendant's "Motion To Modify Sentence," filed July 11, 2005,
and (d) Defendant's "Notice for Petition for Writ of Habeas Corpus," filed August
4, 2005. Defendant's counsel submitted documents entitled (a) "Defendant's Post-
Sentencing Motions" (containing a "Motion in Arrest of Judgment," a "Motion To
Modify Sentence," and a "Motion for Court Approved Work Release"), filed July
8, 2005, (b) "Motion for Release on Bail Pending Appeal," filed July 15, 2005, (c)
"Motion To Modify Sentence," filed July 25,2005, and (d) "Petition To Withdraw
[As Counsel]," filed August 4, 2005.
49 NT. 2, Sentencing Proceeding.
50 Defendant was sentenced to undergo imprisonment for a period of not less than one year nor
more than two years, to pay a fine of $2,500.00, and to pay the costs of prosecution. Order of
Court, June 28, 2005.
51 Order of Court, June 28,2005.
52 Order of Court, June 28,2005.
8
On August 11, 2005, following an extensive on-the-record colloquy with
Defendant at which Defendant indicated that he wanted neither the public
defender nor standby counsel appointed, 53 and that he favored his private
counsel's request to withdraw, 54 the court granted his counsel's petition to
withdraw and permitted Defendant to represent himself. 55 Defendant thereafter
proceeded to submit (a) an "Application for Leave To Proceed in Forma
Pauperis," filed August 16, 2005, and (b) a "Pro-Se Petition for Time Credit
Pursuant to Rule 42 P A.C.S.A. 9760(2)," filed August 17, 2005.
At a proceeding on August 23,2005, Defendant withdrew his application to
proceed in forma pauperis. 56 He indicated that such status was not financially
necessary in his case, and that he also felt he could employ a private attorney if he
wished one. 57
On October 17, 2005, the court held a hearing at which Defendant pursued
other post-sentence positions. First, he maintained that the evidence had not
supported a guilty verdict or sentence for driving under the influence in the form
of driving after imbibing, highest rate, because his expert witness had indicated
that his BAC level could have been as low as .148% "at the time of [his] actual
driving.,,58 More specifically, Defendant argued as follows:
As to the Highest Rate of Alcohol, I did present an expert
witness as to the discrepancies in the intoxilyzer, and that being
my .164 could have been as low as a .148. The
Commonwealth didn't present any evidence to relate back to
the time of the driving. The actual intoxilyzer was given an
hour and twenty minutes later. At the time of the actual
53 NT. 2-6, Hearing, August 11,2005; Order of Court, August 11,2005.
54 NT. 5-8, Hearing, August 11,2005; Order of Court, August 11,2005.
55 Order of Court, August 11, 2005. In addition to participating in the colloquy, Defendant
submitted a written waiver of the right to be represented by counsel. Defendant's Written Waiver
of Counsel, filed August 11, 2005.
56 Order of Court, August 23,2005.
57 NT. 8-9, Hearing, August 23, 2005.
58 NT. 2-3, Hearing, October 17,2005.
9
driving my highest rate could have been well below the highest
rate at that time. 59
Second, Defendant argued that he should have been given credit on this
sentence for an eight-month period during which he was serving a parole
revocation.60 His position on this point was explained as follows:
THE COURT: What credit are you asking for?
MR. AUCHEY: . . . I was in on a parole violation for
approximately 8 months before I was sentenced.
THE COURT: Why would you get credit for that?
MR. AUCHEY: Well, under Pennsylvania CSA 9762
it reads as follows: Credit against the maximum term and
minimum term shall be given to the Defendant for all time
spent in custody under a prior sentence if he is later
reprosecuted and resentenced for the same offense or for
another offense based on the same act or acts. This shall
include credit in accordance with paragraph 1 of the action for
all time spent in custody as a result of both the original charge
and any subsequent charge for the same offense or another
offense based on the same act or acts.
THE COURT: And you feel that that says that you're
entitled to credit [for time served] on a parole revocation?
MR. AUCHEY: . . . I may be reading into it, but [I
believe] you may be given time credit. Not that you are
entitled to time credit, but you may be given time credit for
that. 61
Although Defendant suggested in his argument on the credit issue that,
prior to sentence, he had been incarcerated on the charges herein as well as for a
parole violation,62 the Commonwealth argued that in fact he had not been
59 NT. 2-3, Hearing, October 17,2005.
60 NT. 3-4, Hearing, October 17,2005.
61 NT. 4-5, Hearing, October 17,2005.
62 NT. 5, Hearing, October 17, 2005.
10
incarcerated on these charges during that period.63 An examination of the record
reveals that the Commonwealth was correct.
Following the hearing, the court issued an order denying Defendant post-
sentence relief. 64 Defendant's notice of appeal to the Pennsylvania Superior Court
was filed on November 17,2005.65
Having divested this court of jurisdiction by the appeal, Defendant filed an
"Application for the Assignment of Counsel," on December 2, 2005. By order of
court dated January 3, 2006, this application was not granted.
DISCUSSION
Ineffective assistance of counsel. Defendant's claims of ineffective
assistance of counsel were not raised in this court and would not be appropriately
addressed in this opinion. Commonwealth v. DeJesus, 581 Pa. 632, 868 A.2d 379
(2005). In addition, in these circumstances the claims are not ripe for
consideration on appeal. Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385
(2003). Finally, claims of ineffective assistance of trial counsel are, in general,
considered premature at the direct appeal stage of a case. Commonwealth v.
Grant, 572 Pa. 48, 813 A.2d 726 (2002).
Weight and sufficiency of evidence. An issue as to the weight of the
evidence must be raised in the first instance in the trial court, and is otherwise
deemed waived. Pa. R. Crim. P. 607(A); Commonwealth v. Little, 2005 P A Super
251, 879 A.2d 293. In the present case, although the issue of the sufficiency of the
evidence was raised in Defendant's post-sentence motions, the weight of the
evidence was not.
On a challenge to the sufficiency of the evidence in a criminal case, the
proper test is "whether, viewing the evidence admitted at trial in the light most
favorable to the Commonwealth and drawing all reasonable inferences in the
63 NT. 5-6, Hearing, October, 17,2005.
64 Order of Court, October 17, 2005.
65 Defendant's Notice of Appeal, filed November 17,2005.
11
Commonwealth's favor, there is sufficient evidence to enable the trier of fact to
find every element of the [crime] charged beyond a reasonable doubt."
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1354 (1996), quoting
Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288
(1984). The trier of fact is "free to believe all, part or none of the evidence."
Commonwealth v. Petaccio, 2000 P A Super 384, 4, 764 A.2d 582, 585, quoting
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986).
Furthermore, in ruling upon such a challenge a court "may not weigh the
evidence and substitute [its] judgment for the fact-finder." Commonwealth v.
Butler, 2004 P A Super 294, 10, 856 A.2d 131, 135, quoting Commonwealth v.
Clark, 2000 PA Super 307,3,761 A.2d 190, 192.
With respect to the charge of driving under the influence in the form of
driving after imbibing, general impairment, as charged in Defendant's case, the
Commonwealth must prove beyond a reasonable doubt that ( a) the defendant
drove, operated or was in actual physical control of the movement of a vehicle
upon a highway or trafficway and (b) while he drove, operated or was in actual
physical control of the vehicle he had imbibed a sufficient amount of alcohol such
that he was incapable of safely driving, operating, or being in actual physical
control of the movement of the vehicle. See Act of September 30, 2003, P.L. 120,
916, 75 Pa. C.S. 93802(a)(1) (2005 Supp.).
In this context, circumstances tending to prove driving under the influence
. 1 d f~ . 1. 66 . d.. 67 .c d.. 68 d f
InC U e tra l1C VlO atlOns, erratIc rIVIng, unsa~e rIVIng, an 0 or 0 an
66 See, e.g., In re KR.B., 2004 PA Super. 157,4,851 A.2d 914,917.
67 See Commonwealth v. Montini, 712 A.2d 761-764 (Pa. Super. Ct. 1998); Commonwealth v.
Carlson, 705 A.2d 468 (Pa. Super. Ct. 1998).
68 Commonwealth v. Hamme, 400 Pa. Super. 537, 541, 583 A.2d 1245, 1247 (Pa. Super. Ct.
1990); Commonwealth v. Lawrentz, 453 Pa. Super. 118, 123, 683 A.2d 303, 305 (1996);
Commonwealth v. Petro, 94-1619 (Cumberland Co. Nov. 1, 1995).
12
alcoholic beverage on the breath, 69 slurred speech,70 lack of coordination
associated with performance of field sobriety tests,71 inculpatory statements,72 a
high BAC level,73 and an experienced police officer's opinion that the driver was
under the influence of alcohol to a degree that rendered him incapable of safe
driving.74 All of these factors were present in Defendant's case and, in the court's
view, amply supported the proposition that Defendant was driving while under the
influence of alcohol to a degree that rendered him incapable of safe driving.
With respect to the charge of driving under the influence in the form of
driving after imbibing, highest rate, the Commonwealth must prove beyond a
reasonable doubt that ( a) the defendant imbibed alcohol, (b) the defendant then
drove, operated, or was in actual physical control of the movement of a vehicle
upon a highway or trafficway, and (c) within two hours after driving, operation or
actual physical control the alcohol concentration in the defendant's blood or breath
was 0.16% or greater. See Act of September 30, 2003, P.L. 120, 916, 75 Pa. C.S.
93802(c) (2005 Supp.).
"In determining the credibility of [an] expert witness, the trier of fact is free
to believe all, part, or none of the evidence." Commonwealth v. Passarelli, 2001
PA Super 377, 15, 789 A.2d 708, 715, citing Commonwealth v. Carson, 559 Pa.
460, 741 A.2d 686 (1999). The mere fact that a test result is not substantially in
excess of the legal limit does not foreclose a finding in conformity with the test
69 See Commonwealth v. Lutz, 443 Pa. Super. 262, 267, 661 A.2d 405, 408 (1995);
Commonwealth v. Fick, 391 Pa. Super. 625, 627, 571 A.2d 1091, 1092 (1990); Commonwealth v.
Fairley, 298 Pa. Super. 236, 245, 444 A.2d 748, 752 (1982); Commonwealth v. Petro, 94-1619
(Cumberland Co. Nov. 1, 1995); Commonwealth v. McClellan, 42 Cumberland LJ. 312, 318
(1993).
70 See Commonwealth v. Nicotra, 425 Pa. Super. 600,605,625 A.2d 1259, 1261 (1993).
71 See Commonwealth v. Robinson, 2003 PA Super. 383, 13,834 A.2d 1160, 1166.
72 See Commonwealth v. Leighty, 693 A.2d 1324, 1327 (Pa. Super. Ct. 1997).
73 See Commonwealth v. Zugay, 2000 PA Super 15, 16, 745 A.2d 639,646.
74 See Commonwealth v. Palmer, 2000 P A Super 123, 13, 751 A.2d 223, 228, citing
Commonwealth v. Feathers, 442 Pa. Super. 490, 502, 660 A.2d 90,95 (1995).
13
result. See, e.g., Commonwealth v. Butler, 2004 PA Super. 294, 17-18,856 A.2d
131, 137, 38 (.106% where legal limit was .10%). And even a Commonwealth
expert's acknowledgment of the theoretical possibility of a BAC level below the
limit does not preclude a jury from returning a guilty verdict consistent with the
actual chemical test result. See Commonwealth v. Murray, 2000 P A Super 84, 15-
16,749 A.2d 513,515-16.
In the present case, where (a) the Intoxilizer 5000 in question preliminarily
produced a test result lower than the known concentration of alcohol in a sample
used to test its accuracy, (b) the instrument was shown to have been approved by
the Commonwealth for such use and to have been properly maintained, (c) the
lower of two test results obtained within two hours of Defendant's driving was
.164 %, and (d) Defendant's expert testified, inter alia, that his BAC level at the
time of testing was "around .164%" and might have been as high as .180%, it is
believed that the jury permissibly found him guilty of driving under the influence
of alcohol, in the form of driving after imbibing, highest rate.75
Prior offenses for purposes of mandatory sentencing law. Under Section
3 806(b) of the Vehicle Code,76 an ARD disposition is a "prior offense" for
purposes of the mandatory sentencing provision applicable to driving under the
influence cases. Although Defendant is correct that his record did not contain
"two previous DUIs" in the sense of two prior convictions, it did contain two
"prior offenses" for purposes of the mandatory sentencing law by virtue of a DUI
ARD disposition in 1999 and a DUI conviction in 2004.
75 Defendant's reliance in his statement of matters complained of on appeal upon a lack of
"relation-back" testimony on the part of the Commonwealth is based upon a version of the law no
longer in effect. Cf Commonwealth v. ModafJare, 529 Pa. 101, 601 A.2d 1233 (1992),
superceded by 75 Pa. C.S. ~3802(a)(2) (holding that the absence of "relating back" evidence
when defendant's BAC level was measured only slightly over the legal limit constituted
reasonable doubt where the DUI statute made one's BAC level the pivotal issue while driving).
The current form of the law permits conviction where the BAC level is over the legal limit within
two hours after operating a vehicle. 75 Pa. C.S. ~3802(a)(2)..
76 Act of September 30,2003, P.L. 120, ~16, 75 Pa. C.S. ~3802 (c) (2005 Supp.); see id. at ~3804.
14
Presentence investigation report. Issues relating to the presentence
investigation report do not appear to have been preserved in this court and were
thus waived.77 In addition, under Section 3 804( c) of the Vehicle Code, the
mandatory minimum sentence applicable to a third offense of driving under the
influence in the form of driving after imbibing, highest rate, is a period of
imprisonment of not less than one year and a fine of not less than $2,500.00.78
Since Defendant's sentence did not exceed the mandatory minimum sentence
required by law, any errors in the presentence investigation process were harmless.
Evidence relating to Defendant's arrest and processing. In his statement of
matters complained of on appeal, Defendant has included a number of matters
under the rubric "sufficiency of the evidence at the time of Defendants' contact
with law enforcement and while the Defendant was being processed." 79 To the
extent that "[w]rong registration on vehicle," "[i]mprobability of seeing vehicle
from distance, shrubbery, inadequate lighting," "impossibility of legitimacy of
SFST during initial contact with Defendant due to lack to time," "BAC results
were not obtained during recommended guidelines for accurate results," and
"Defendant was denied a 'blood test' to ensure accuracy of BAC" are intended to
reflect upon the credibility of the Commonwealth's case against Defendant, they
either were, or could have been, presented to the jury as among numerous factors
to be weighed in determining whether Defendant had been proven guilty beyond a
reasonable doubt.
In addition, with respect to Defendant's claim that "he was denied a 'blood
test' to ensure accuracy of BAC," it may be noted that the choice of test to be
77 Commonwealth v. Melendez-Rodriguez, 2004 PA Super 334, 25-27,856 A.2d 1278, 1287-88.
78 Act of September 30, 2003, P.L. 120, ~16, 75 Pa. C.S. ~3804(c)(3) (2005 Supp.).
79 Defendant's Concise Statement of Matters Complained of, filed December 2,2005.
15
administered to a defendant is that of the arresting officerso and that the evidence
at trial did not include a claim that Defendant had requested a blood test.
With respect to Defendant's claim regarding "Rediscovered evidence-
Defendant was not advised of the right to counsel before being asked to take the
Breathalyzer Test," it may be observed that there is no such right. Commonwealth
v. West, 370 Pa. Super. 365, 368, 536 A.2d 447, 449-50 (1988); Commonwealth v.
Morris, No. 1376 - 2004 Crim. T. (Cumberland Co. May 3, 2005) (Bayley, 1.),
aff'd, No. 656 MDA 2005 (December 28, 2005 Pa. Super. Ct.).
Finally, with respect to Defendant's claim that the "[0 ]perator of
Intoxalyzer 5000 failed to observe l5min. depravation period. . . , failed to clear
prior results. . . , failed to wait at least 4 minutes between samples. . . , [and] took
breath samples that were longer than 10 seconds potentially resulting in higher
BAC reading," the evidence at trial was either (a) to the contrary, (b) devoid of
facts from which any significance could be attached to the alleged deficiency, or
(c) nonexistent on the subject.
F or the foregoing reasons, it is believed that the judgment of sentence in
Defendant's case was properly imposed.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
Shainnon A. Auchey
9 Stone Spring Lane
Camp Hill, PA 17011
Defendant, pro Se
80 Mooney v. Commonwealth of Pennsylvania, Department of Transportation, 654 A.2d 47, 50
(Pa. Commonwealth Ct. 1994).
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