HomeMy WebLinkAboutCP-21-CR-0000957-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
AMBER RAE BERGSTEDT : CP-21-CRIMINAL 0957 – 2009
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J. March , 2010
The defendant was convicted by a jury of driving under the influence of a drug or
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combination of drugsand careless driving. After sentence was imposed she filed this
appeal in which she alleges that the evidence was insufficient to sustain the verdict.
Specifically she contends that “the Commonwealth failed to prove that (she) was in
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actual physical control of the movement of the vehicle.” She also alleges that we erred
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in admitting the toxicologist’s report. We will address each issue in the following
opinion.
Sufficiency of the Evidence.
The standard to be applied to a claim of insufficient evidence is “whether the
evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in a
light most favorable to the Commonwealth as verdict winner, support the jury’s finding
of all the elements of the offense beyond a reasonable doubt.” Commonwealth v.
Montalvo, 598 Pa. 263, 274, 956 A.2d 926, 932 (2008). Furthermore “the
Commonwealth may sustain its burden by means of wholly circumstantial evidence. Id.
1
75 Pa. C.S.A. § 3802(d) (2).
2
75 Pa. C.S.A. § 3714(a).
3
See “Concise Statement of Matters Complained of on Appeal.”
4
See “Concise Statement of Matters Complained of on Appeal.”
CP-21-CRIMINAL 0957 - 2009
We will recite the facts in the light most favorable to the Commonwealth. On the
evening of August 7, 2008 Pennsylvania State Police Trooper Scott Leidigh was assigned
routine patrol along Interstate 81 in Cumberland County. He conducted a traffic stop
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between mileposts 29 and 30 in the northbound lane at about 5:40 p.m. After he issued a
citation, which took 15 to 20 minutes, he continued northbound on I-81 to his station at
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milepost 44. Even though he was looking for them he did not see any stopped or
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disabled vehicles along the interstate.
Shortly after he arrived at the station he received a call that there were goats loose
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on I-81 near milepost 30. He immediately returned to that area. As he was looking for
the goats he noticed the defendant’s vehicle stopped along the side of the northbound lane
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near milepost 30. He continued south on I-81 for another mile or so before he turned
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around. He notified dispatch that he had completed his search for the goats with
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negative results. He then proceeded to check on the defendant’s vehicle.
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It was 6:49 p.m. when he pulled behind the defendant’s car. The trooper
described what happened next:
I got out. About the same time I got out, Amber got out of the passenger’s side of
the vehicle. There was no one in the driver’s side. . . . As soon as she exited, she
was having difficulty standing and walking. . . . She asked me if I had come there
because she had called 911. I said, no, I was looking for goats, but why did you
call 911? She said she had called 911 because she had been in a crash, and she
wanted to show me the damage to her car.
. . .
During this conversation, again I asked her why she called 911. She said that she
was - - there’s several ways she said it, that she struck something, that something
5
Transcript of Proceedings, September 28-29, 2009, p.14.
6
Transcript of Proceedings, September 28-29, 2009, p.14.
7
Transcript of Proceedings, p. 15.
8
Transcript of Proceedings, p. 15.
9
Transcript of Proceedings, p. 15.
10
Transcript of Proceedings, p. 15.
11
Transcript of Proceedings, p. 16.
12
Transcript of Proceedings, p. 17.
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CP-21-CRIMINAL 0957 - 2009
struck her, but she didn’t hurt anybody. She doesn’t know what she hit. I wasn’t
sure about a crash at this point, but there was damage to the left side of her
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vehicle.
. . .
The defendant was obviously intoxicated. She had extremely slurred speech and
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had difficulty standing.
She did not even know where she was, insisting that she was on the Ritner Highway and
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not Interstate 81.
While the defendant initially indicated that she was the driver, she changed her
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story to indicate that her boyfriend had been the driver. However, after her boyfriend
arrived on the scene and denied driving the car she admitted again that she really had
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been the driver.
The trooper transported the defendant to the Carlisle Regional Hospital for a
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blood test. The blood was drawn by a phlebotomist at 7:50 p.m. it was sent to National
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Medical Services Laboratory, (NMS) an approved testing laboratory. The test results
showed that she had significant quantities of isopropyl alcohol (rubbing alcohol) and
acetone in her blood.
In order to prove the defendant guilty of violating Section 3802(d) (2) of the
vehicle code the Commonwealth must prove beyond a reasonable doubt that (1) she
drove, operated or was in actual physical control of the movement of her vehicle and (2)
she was under the influence of a drug or drugs that rendered her incapable of safe driving.
75 Pa. C.S.A. § 3802 (d) (2). In the instant case the above recited facts are sufficient to
meet that burden and, thus, to sustain the verdict.
13
Transcript of Proceedings, pp. 17-18.
14
Transcript of Proceedings, p. 19.
15
Transcript of Proceedings, p. 20.
16
Transcript of Proceedings, p. 21.
17
Transcript of Proceedings, p. 38.
18
Transcript of Proceedings, p. 25.
19
Transcript of Proceedings, p. 27.
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CP-21-CRIMINAL 0957 - 2009
Toxicology Report.
The defendant objected to the toxicology report on the basis that it violated her
Sixth Amendment right to confront her accusers. Since the technicians who tested her
blood were not called to testify, she argued that the toxicology results must be precluded
under the dictates of Melendez – Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) and
Crawford v. Washington, 124 S.Ct. 1354 (2004). We disagreed.
The Commonwealth called Dr. Lee Blum to testify with regard to the blood test
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results. Dr. Blum is a toxicologist and the assistant laboratory director at NMS. While
he did not actually conduct the testing on the blood, he oversaw the procedures and wrote
the final report. In response to defendant’s objection to his toxicology report, the
Commonwealth made an offer of proof as follows:
Dr. Blum is a forensic toxicologist. He and other forensic toxicologists have
analysts who take a sample, prepare it, set it up on the instruments. The
instrument then generates data or records that go into a computer system.
Dr. Blum and other forensic toxicologists from National Medical Services then
access the case file, find who the analysts were, reviews the chain of custody,
reviews their work, reviews their analysis, and then reviews the raw data from the
computer. Dr. Blum then makes a determination as to what, if anything, was
found in the fluid that was presented. He then creates a report and makes findings
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and gives opinions in that report.
During the course of his testimony Dr. Blum testified with regard to the chain of
evidence, the procedures used to test the blood, as well as how he reached his conclusion
about the type, amount and effect of the substances found in the defendant’s blood.
The defendant in Melendez-Diaz was convicted of cocaine trafficking. At his
trial the Commonwealth used “certificates of analysis” sworn to by state laboratory
analysts to prove that the items seized from him were cocaine. The analysts did not
20
Transcript of Proceedings, p. 57.
21
Transcript of Proceedings, p. 55.
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CP-21-CRIMINAL 0957 - 2009
testify in person at trial. The Melendez-Diaz, court held that pursuant to Crawford v.
Washington, supra, “the analysts’ affidavits were testimonial statements, and the analysts
were ‘witnesses’ for purposes of the Sixth Amendment.” 129 S.Ct. 2527 at 2532.
The instant case is distinguishable from Melendez-Diaz in that the “analyst” in
this case testified at trial. While he may have relied upon the work of technicians in
forming his opinions and conclusions, that work was done under his supervision. He was
available to testify, and to be cross examined, with regard to the methods and procedures
used by the technicians to obtain the raw data. More importantly the defendant was able
to cross examine him as to the methods and procedures he used in reaching the opinions
and conclusions contained in his report.
________________ ________________________
DATE Edward E. Guido, J.
Michelle H. Sibert, Esquire
For the Commonwealth
Brian O. Williams, Esquire
For the Defendant
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