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HomeMy WebLinkAbout96-0058 CriminalCOMMONWEALTH Ve MICHAEL CARL FARNWALT OTN: E041707-1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-0058 CRIMINAL TERM CHARGES: DRIVING UNDER THE INFLUENCE IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., January 10, 1997. In this criminal case involving a charge of driving under the influence of alcohol to a degree which rendered the person incapable of safe driving, Defendant has appealed to the Superior Court from a judgment of sentence following a bench trial and guilty verdict. The basis for the appeal is an alleged insufficiency of the evidence to sustain the verdict. Specifically, the grounds for the appeal are as follows: a. No evidence was introduced to show tha~ the Defendant drove, operated or was in actual physical control of the car on a highway or trafficway. Defendant was asleep in a parked car in a private driveway. The Commonwealth was unable to rebut defense testimony that Defendant's brother moved the car off the street into the driveway. b. No evidence was introduced to show that the Defendant drove the car under the influence of alcohol to a .degree which rendered him incapable of safe driving. Although there was a bent pole at the end of the driveway, no evidence was presented to establish that Defendant hit the pole and to rebut defense testimony that the car was damaged prior to the date of this incident.~ This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). ~ Defendant's Concise Statement of Matters Complained of on Appeal, at 1-2 (filed December 27, 1996). NO. 96-0058 CRIMINAL TERM STATEMENT OF FACTS At about 5:30 a.m.2 on Sunday, December 3, 1995, Police Officer Joseph Spadaccino of the Borough of New Cumberland, Cumberland County, Pennsylvania, was dispatched to 1310 Brandt Avenue in the borough as the result of a neighbor's report that a suspicious vehicle was in the yard of that property with its brake lights on.3 This area of the borough is residential.4 The particular house in question was vacant.5 It was still dark at that hour.6 Brandt Avenue is a two-way public road with sidewalks on either side.7 Officer Spadaccino found the vehicle, a 1993 green Dodge automobile,B on the premises mentioned about 25 to 30 yards off the roadway.9 The vehicle was askew in relation to the residence's'driveway, being partly in the yard and partly on the 'driveway macadam; its front end projected onto the lawn at the end 2 N.T. 8, Trial, Commonwealth v. Farnwalt, No. Criminal Term (Cumberland County) (hereinafter N.T. __). 3 N.T. 4-5, 13. 4 N.T. 14. 5 N.T. 65. 6 N.T. 8. 7 N.T. 6. 8 N.T. 52; Defendant's Exhibit 5. 9 N.T. 6. 2 96-0058 NO. 96-0058 CRIMINAL TERM of the driveway.~° The public road in front of the property was the only means of vehicular access to the driveway and this resting point.~ The car's front bumper rested against a bird house pole that had been pushed over to form an angle of about sixty degrees with the ground.~2 A scratch on the bumper was consistent with the officer's conclusion that the vehicle had hit the pole.~3 The vehicle's engine was running, the keys were in the ignition, and its brake lights were on.~4 Defendant was the only occupant; he was slumped over the steering wheel.~s Defendant was difficult to rouse,~6 emitted a strong odor of an alcoholic beverage on his breath,~7 had bloodshot, "glossy" ~8 exhibited slurred speech,~9 stumbled as he attempted to exit eyes, . ~0 N.T. 6, 7, 13-14. ~ N.T. 18. ~2 N.T. 6-7; Defendant's Exhibit 3. ~3 N.T. 7-8; 65. ~4 N.T. 8. ~ Id. ~6 N.T. 9-10. ~7 N.T. 11. ~ Id. ~9 N.T. 12. NO. 96-0058 CRIMINAL TERM the vehicle,2° and appeared to have urinated in his pants.2~ In the officer's opinion, Defendant was "under the influence of an alcoholic beverage and ... was incapable of safe driving.''~ Defendant told Officer Spadaccino that he had been coming from his mother's house (in Steelton, Dauphin County) and going to his brother's house (in Fairview Township, York County).~3 He said that he had decided to get intoxicated because of his father's death~4 several months earlier.2s Defendant did not suggest to the officer that he had attended a party in the Brandt Avenue neighborhood.26 He declined a request by the officer that he submit to a BAC test.27 At trial, Defendant testified on his own behalf. He stated that on the afternoon of Saturday, December 2, 1995, he had borrowed a car from Richard Miller, who at that time was his 20 N.T. 10. N.T. 11. The officer chose not to administer field sobriety tests because Defendant's condition led him to believe that such tests would jeopardize Defendant's safety. N.T. 10. 2~ N.T. 10. ~3 N.T. 17-20, 64. 24 N.T. 12. ~s N.T. 28. 26 N.T. 64. ~7 N.T. 12. NO. 96-0058 CRIMINAL TERM brother-in-law.28 He said that he could not recall the specific circumstances of his receipt of the vehicle.29 Defendant stated that at some point he was in Middletown, Dauphin County, visiting a friend of his and was told about a "big blow-out bachelor party over in New Cumberland."3° He mentioned this to his brother, John Farnwalt, who replied that he happened to know the people giving the party.3~ Defendant then met his brother at a Turkey Hill market in New Cumberland and followed him to the party, according to his testimony.~2 Defendant testified that he parked on the street, "drank a lot" at the party and at some point felt his condition to be such that he should make arrangements for safe transportation home.~3 His brother John, according to Defendant, agreed to see that he got home safely and to get his car off the street.~4 John, according to Defendant, did not drink.~s N.T. 22, 51-52. N.T. 34. N.T. 42. Id. Id. N.T. 44. N.T. 23. Id. NO. 96-0058 CRIMINAL TERM Defendant testified that at about 1:30 or 2:00 a.m. the party was breaking up, John had vanished and one or more people led him to his car.36 He got in the car and was "out like a light," he stated,37 having "passed out.''~8 He was, according to his testimony, "drunk" when the officer awakened him.~9 Defendant denied in his testimony that he had driven the car into the pole.4° He could not recall specifically the circumstances of his locating the car when he left the party,4~ nor could he recall the location of the party.42 Defendant stated that he did not know anyone at the party other than his brother,4~ who preferred at this time "not to get involved" in the case.44 Defendant's former brother-in-law, Richard Miller, also testified on .Defendant's behalf. He stated that he had lent Defendant his car on December 2, 1995,4s and that Defendant had N.T. 24-25. N.T. 25. N.T. 36. Id. N.T. 40. N.T. 41. N.T. 43. N.T. 51. N.T. 41. N.T. 52. 6 NO. 96-0058 CRIMINAL TERM appeared at his house around 6:30 or 7:00 a.m. the next day in an intoxicated state.46 The car, which had been towed to another location, did not seem to display any recent damage, according to Mr. Miller.47 The court did not, as the verdict indicates, find Defendant's version of the events immediately preceding his arrest credible. He was sentenced on November 12, 1996, to the mandatory minimum sentence applicable to influence.~" second offenders for driving under the DISCUSSION "The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the 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 1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). "[I]t is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the testimony." Commonwealth v. Baskerville, N.T. 53-56. N.T. 54. N.T. 68; Order of Court, November 12, 1996. 7 NO. 96-0058 CRIMINAL TERM Pa. Super. , , A.2d , (1996), WL 437648 (1996); see Commonwealth v. Hogans, 400 Pa. Super. 606, 584 A.2d 347 (1990) (credibility to be weighed by fact finder). The Pennsylvania Superior Court has described the elements of the crime of driving under the influence of alcohol to a degree rendering the person incapable of safe driving as follows: The crime of operating a vehicle while under the influence of alcohol requires that the Commonwealth prove two elements beyond a reasonable doubt: (1) defendant was driving, operating, or in actual physical control of the automobile, (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving. Commonwealth v. Byers, 437 Pa. Super. 502, 505, 650 A.2d 468, 469 (1994). A component of the first element is that the operation of the vehicle must be upon a highway or trafficway. Commonwealth v. McFadden, 377 Pa. Super. 454, 547 A.2d 774 (1988). With respect to the second element, factors tending to support a finding that a defendant was under the influence of alcohol to a degree which rendered him or her incapable of safe driving include unsafe driving,49 an accident under circumstances suggestive of 49 See Commonwealth v. Hamme, 1245 (1990). 400 Pa. Super. 537, 583 A.2d NO. 96-0058 CRIMINAL TERM 51 50 the odor of an alcoholic beverage, serious driver error, bloodshot and glassy eyes, s2 stumbling, s3 slurred speech, s4 55 , unresponsiveness, a police officer s informed opinion as to the defendant's condition,56 a defendant's admission of intoxication,57 and a defendant's refusal to submit to a BAC test.58 All of these factors were present in this case, and it is believed that the evidence was more than sufficient to allow a fact finder to reasonably conclude beyond a reasonable doubt that Defendant was so See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990); Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569, appeal denied, 527 Pa. 646, 593 A.2d 419 (1990). s~ See Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091 (1990); Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748 (1982). ~2 See commonwealth v. Verticelli, Pa. Super. , 678 A.2d 379 (1996); Commonwealth v. Ragan, 438 Pa. Super. 505, 652 A.2d 925, appeal denied, 541 Pa. 650, 664 A.2d 540 (1995). 53 See Commonwealth v. Ragan, 438 Pa. Super. 505, 652 A.2d 925, appeal denied, 541 Pa. 650, 664 A.2d 540 (1995). 54 See Commonwealth v. Feathers, 442 Pa. Super. 490, 660 A.2d 90 (1995), appeal allowed, Pa. , 672 A.2d 279 (1996); Commonwealth v. Fairley, 298 Pa. Sujper. 236, 444 A.2d 748 (1982). ~5 Cf. McDonough v. Commonwealth of Pennsylvania, Department of Transportation, 152 Pa. Commw. 384, 618 A.2d 1258 (1992) (license suspension case). s6 See Commonwealth v. Neiswonger, 338 Pa. Super. 625, 488 A.2d 68 (1985). 57 Cf. Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920 (1990). ~" See Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S. S1547(e). NO. 96-0058 CRIMINAL TERM under the influence of alcohol to a degree rendering him incapable of safe driving. With respect to the first element, the operation of a vehicle upon a highway or trafficway by a defendant may be inferred from circumstantial evidence;~9 it is not necessary that an eyewitness have seen the defendant driving.6° As the Pennsylvania Superior Court has observed: Evidence that the automobile had crashed through a guardrail, plunged twenty feet down an embankment, with the cable from the guardrail wrapped around its front bumper, coupled with evidence that no one but the defendant could possibly have been in the automobile, is abundant "proof that the car had ... been operated on that highway" by the defendant. Facts often speak louder than words.6~ Evidence'that a defendant was the sole occupant of a vehicle, that the vehicle's motor was running, and that the defendant was in the driver's seat when discovered by police is suggestive that he was the operator.~2 The circumstances of an accident may be s9 See Commonwealth v. Taylor, 237 Pa. Super. 212, 352 A.2d 137 (1975), allocatur refused, 237 Pa. Super. xxvi (1976); Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375 (1974), allocatur refused, 231 Pa. Super. xliii (1975). 6o See Commonwealth v. Walker, 165 Pa. Super. 617, 70 A.2d 435 (1950). Id. at 621, 70 A.2d at 437. 62 See generally Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375 (1974), allocatur refused, 231 Pa. Super. xliii (1975). 10 NO. 96-0058 CRIMINAL TERM similarly suggestive on the issue of whether the vehicle had been driven on a highway prior to its coming to a stop.63 In this case a number of circumstances led the court to conclude that Defendant had driven the vehicle in question and that he had been traveling on a public highway before striking the pole. First, the car was one which had been loaned to Defendant for his use. Second, Defendant was found alone in the vehicle in the driver's seat with the motor running. Third, the sole means of vehicular access to the driveway where the accident occurred was a public street. Fourth, the car came to rest within thirty yards of the street. Fifth, the type of accident was suggestive of disorientation on the part of the driver - a state of mind consistent with Defendant's inebriated condition and inconsistent with the presumed sobriety of Defendant's abstinent brother. Sixth, Defendant's 'exculpatory version of events was lacking in critical particulars - e.g., the location of the party, the names of those giving the party, descriptions of the persons who led him to his vehicle, etc. Seventh, Defendant's account at trial of being at the party (while his car was being moved from the street) was not part of the facts he related to police at the time. 63 (1950). See Commonwealth v. Walker, 165 Pa. Super. 617, 70 A.2d 435 11 NO. 96-0058 CRIMINAL TERM Finally, Defendant's account was without corroboration; this was not a case where another person testified that he was the driver.64 These circumstances, it is believed, were sufficient to allow a fact finder to reasonably conclude beyond a reasonable doubt that Defendant was the driver of the vehicle and that he had driven it on a public street before entering private property and impacting a pole. For the foregoing reasons, it is suggested that the evidence was sufficient to sustain the verdict of guilty of driving under the influence of alcohol to a degree which rendered the person incapable of safe driving, and that the judgment of sentence was properly entered. William I. Gabig, Esq. Assistant District Attorney Clasina B. Mahoney, Intern Arla M. Waller, Esq., Supervising Attorney Office of the Public Defender : rc 64 Cf. Commonwealth v. Wilson, 225 Pa. Super. 513, 312 A.2d 430 (1973). 12