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HomeMy WebLinkAboutCP-21-CR-0002579-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2579-2009 V. : : CHARGE: DUI – GENERAL IMPAIRMENT ST : (1 OFFENSE) : MARK CHRISTOPHER KAMBIC : OTN: L503825-0 : AFFIANT: CPL. MARK E. WILLIAMS IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., December 8, 2010 – PROCEDURAL HISTORY By criminal complaint filed on August 17, 2009, Defendant Mark Kambic was charged with one count of Driving Under the Influence, General Impairment, an ungraded misdemeanor, 75 Pa.C.S.A. §3802(a) (1). After the preliminary hearing, this charge was bound over to court on September 23, 2009. A non-jury trial was held before this Court on July 15, 2010. The Defendant was found guilty of the charge. On September 7, 2010, the Defendant was sentenced to pay the costs of prosecution, a fine of $300, and undergo a period of supervised probation in Cumberland County for a period of six months. This was a standard range sentence. The Defendant filed a Notice of Appeal on October 5, 2010. A Concise Statement of Matters Complained of on Appeal was filed on October 25, 2010. That statement raises the following issue: 1. The evidence was insufficient as a matter of law to establish the Defendant’s guilty beyond a reasonable doubt on the charge of Driving Under the Influence, General Impairment, because there was not sufficient proof that the Defendant was rendered incapable of safe driving. FINDINGS OF FACT 1. The Affiant in the case was Cpl. Mark Williams of the Lower Allen Township Police Department. Cpl. Williams has been a police officer for 29 1 years and has extensive experience in DUI arrests. 2. On August 13, 2009, at 12:10 a.m. Cpl. Williams observed a motor vehicle ahead of him drift from the right side of the roadway toward the grass median strip on the left side of the roadway. The vehicle almost drove onto the grass median and then made a sudden movement to the right to bring the vehicle 2 back into the center of the lane to the right. 3. Cpl. Williams followed the vehicle for one and a half blocks and saw the vehicle again drift back and forth from the right side of the roadway to the left, eventually crossing the double yellow line which marked the boundary of the roadway from the oncoming traffic lane. The Defendant then straddled the double yellow line and continued to drive south with his vehicle partially in the oncoming 3 traffic lane. 4. Cpl. Williams activated his overhead emergency lights but the motor vehicle continued to proceed forward and did not immediately pull over in 4 response to the emergency light signal. 1 Notes of Testimony, July 15, 2010, p. 3 (hereinafter N.T. __). 2 N.T. 4-5. 3 N.T. 5-6. 4 N.T. 5-6. 2 5. Eventually, the vehicle stopped and the Defendant was identified as 5 the driver. There were no other persons in the vehicle. 6. Cpl. Williams observed that the Defendant’s eyes were glassy and that 6 there was an odor of alcohol coming from the Defendant. 7. Cpl. Williams asked the Defendant how much he had to drink, and the Defendant replied “not much,” which this Court finds to be an admission that the 7 Defendant had been consuming alcoholic beverages. 8. Cpl. Williams administered the one leg stand and walk and turn 8 Standard Field Sobriety Tests to the Defendant. He failed the tests. 9. The topography of the location on which the Standard Field Sobriety Tests were administered (slight uphill grade) did not cause the Defendant to perform poorly on the Standard Field Sobriety Tests. 10. There was adequate lighting at the scene of the stop provided by Cpl. Williams’ flashlight and the headlights on his patrol vehicle to perform the Standard Field Sobriety Tests. 11. Cpl. Williams’ opinion at trial was that the Defendant had imbibed a sufficient quantity of alcoholic beverage that rendered him incapable of safe 9 driving. The Court finds Cpl. Williams’ testimony and opinion credible. 5 N.T.6-7. 6 N.T. 29-30. 7 N.T.7. 8 N.T. 9-10. 9 N.T. 12. 3 12. The Defendant was transported to the Cumberland County Central Processing Facility at the Cumberland County Prison where he was processed 10 by Agent Eugene Spahr. 13. At the processing center, the Defendant had a clear and distinct odor of intoxicating beverage emanating from his breath. His eyes were bloodshot and glassy, his speech was slurred, and he had a “pretty pronounced staggered 11 gait walk.” 14. Agent Spahr has worked for the Cumberland County DUI Processing Center for approximately 2 ½ years. He has observed several hundred persons 12 processed through the center who were under the influence of alcohol. 15. Agent Spahr’s opinion at trial was that the Defendant, at the time he appeared at the booking center on August 13, 2009, was under the influence of 13 alcohol. 16. The Court finds Agent Spahr’s testimony credible. 17. The Defendant did make plans to meet his good friend, Christopher Hooper, at Gullifty’s, a bar which serves alcoholic beverages, for the purpose of meeting a high school acquaintance who was celebrating a birthday and to meet 14 with other friends who were back from college. 18. Defendant admitted that he was at Gullifty’s prior to his arrest drinking 15 beer. 10 N.T. 12 11 N.T. 38. 12 N.T. 37. 13 N.T. 38. 14 N.T. 47, 51. 15 N.T. 57. 4 19. The Court finds that the Defendant was not credible when he stated that (1) he only had two beers prior to his arrest, and (2) that the reason he was driving erratically or not immediately responding to Cpl. Williams’ emergency lights was that he was actually reading a text message or responding to a text 16 message. DISCUSSION A. Sufficiency of the Evidence On a challenge to the sufficiency of the evidence, the law is well settled. All the evidence and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Weir, 738 A.2d 467 (Pa. Super. 1999). Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the Defendant’s guilt to a mathematical certainty. The trier of fact, while passingupon the credibility of the witnesses and weight of the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005). As is true in all criminal cases, in Driving Under the Influence of Alcohol related prosecutions, the Commonwealth can prove any element of an offense by use of wholly circumstantial evidence. Id. 16 N.T. 57, 60. 5 The statute at issue provides as follows: §3802. Driving Under the Influence of Alcohol or Controlled Substance (a) General Impairment.-- (1) 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 safe driving, operating, or being in actual control of the movement of the vehicle. The gravamen of this offense simply stated is driving after drinking enough alcohol so that you cannot drive safely. Interestingly, the Defendant never filed an omnibus pre-trial motion challenging Cpl. Williams’ stop of his vehicle. Clearly, there was reasonable suspicion for investigative detention. This Court finds that the Defendant was driving unsafely. He was weaving in his lane, swerving abruptly, crossing the center double line, and at one point driving his vehicle partially in the lane of oncoming traffic. At trial, the Commonwealth had the obligation of proving the following two elements beyond a reasonable doubt: First, that the Defendant drove, operated, or was in actual physical control of the movement of a vehicle upon a highway. Second, the Commonwealth must prove that while he drove or operated the vehicle, he had imbibed a sufficient amount of alcohol such that he was incapable of safely driving or operating. Pa.SSJI (Crim) 17.3802(a) (1) 6 “Under Pennsylvania law, the phrase “incapable of safe driving” has a precise legal meaning. The Defendant need not have been drunk or severely intoxicated or driving wildly or erratically in order to commit this crime. It is enough if the alcohol has substantially impaired the Defendant’s normal mental or physical faculties that were essential to safe operation of his vehicle… [The fact finder might ask], Were the Defendant’s thinking, judgment, physical skills, ability to perceive and react to changes in the situation or other faculties impaired?” Pa.SSJI (Crim) 17.3802(a) (1). The evidence at trial established beyond a reasonable doubt the following: 1. The Defendant was driving a motor vehicle. 2. As stated previously, the manner in which the Defendant was driving his motor vehicle was unsafe. 3. The Defendant was driving after being at a bar and drinking beer around midnight. 4. The Defendant, even though he stated that he had worked approximately 13 hours on August 12, 2009, was not going home at midnight but was going to another friend’s house in Allendale to “hang 17 out.” 5. The Defendant did not stop immediately but continued driving a considerable distance even after Cpl. Williams had activated his emergency lights. 6. The Defendant smelled of alcohol. 17 N.T. 57. 7 7. The Defendant failed the field sobriety tests. 8. The Defendant had bloodshot glassy eyes, slurred speech, and an unsteady gait when he walked, all of which are classic signs of alcohol intoxication. 9. Both Cpl. Williams and Agent Spahr were of the opinion that the Defendant was under the influence of alcohol which rendered him incapable of safe driving. These factors are clearly indicative of a person whose motor skills are impaired by having ingested alcohol. The failure to control one’s motor skills circumstantially establishes that the person cannot drive safely. Generally speaking, to establish the second element of the offense as defined above, it must be shown that the alcohol imbibed substantially impaired the normal mental and physical faculties required to safely operate a vehicle. Substantial impairment in this context means a diminution or enfeeblement in the ability to exercise judgment to deliberate or to react prudently to changing circumstances and conditions. Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish this element even in cases where there is no evidence of erratic or unsafe driving. Commonwealth v. Smith, 831 A.2d 636 (Pa.Super. 2003) citing Commonwealth v. Palmer, 751 A.2d 223 (Pa.Super. 2000). Viewing all the evidence in the light most favorable to the Commonwealth, it is clear beyond any reasonable doubt that the Defendant was guilty of the offense of Driving Under the Influence of Alcohol – General Impairment. 8 In essence, the Defendant attempts to explain away every fact outlined above as follows: 1. The Defendant stated he only drank two beers. 2. The Defendant’s erratic driving was a result of his “texting” while operating his vehicle. 3. Defendant’s failure to pass the field sobriety test was a result of poor lighting and the incline on which he performed the test. 4. There was no blood alcohol test result admitted at trial. 5. Central Processing Agent Spahr mistakenly testified that the Defendant was wearing green shorts when he was brought to the processing center, and, accordingly, all of Agent Spahr’s testimony should be totally discounted. All of these points are raised in Defendant’s closing argument submitted to this Court. Defense counsel has a duty to present the evidence in the light most favorable to the party he represents. Unfortunately for the Defendant, the Court did not find any of these points to be fact. In essence, the Defendant’s position that the Commonwealth presented insufficient evidence to prove him guilty beyond a reasonable doubt is premised on the evidence presented in the light most favorable to the defense. This, however, is not the law with regard to raising a challenge to the sufficiency of the evidence. All the evidence and all the reasonable inferences drawn therefrom must be viewed in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Weir, 738 A.2d 467 (Pa.Super. 1999). 9 At the close of the trial, the following exchange between the Court and Defendant’s counsel took place: The Court: … This definitely turns on a credibility issue. Right? Mr. Markley: You know, I don’t even think to that extent. I think you can believe everything the officer said and still find that he might not have been intoxicated. I don’t believe the officer to be a liar or anything to that effect. The Court: The law though is that if I accept their opinion that he was intoxicated, they can carry the day. What you have is I drank two beers in less than an hour. That is it. Right? Mr. Markley: Yeah. I guess in a sense it is more or less his credibility. (N.T. 73-74). As simply as it can be stated, the Court did not find the Defendant credible when he said he only had two beers in one hour just prior to his arrest. There was no blood alcohol test because the intoxilyzer in question at the time was taken out of service and no admissible blood test result was obtained for 18 evidentiary purposes. The Court did note that it was the Defendant’s own friend who said that the Defendant called him earlier on the day of August 12, 2009, and indicated that he was going to Gullifty’s to be with a high school friend who was celebrating a birthday. Going to the bar and celebrating was on the Defendant’s mind prior to actually going to the bar. Given the obvious manifestations testified to by Cpl. Williams and Agent Spahr, it is clear, circumstantially, that the Defendant had more than two beers. A fact finder need not disregard common sense or his own every day experience in life. A young 18 N.T. 13. 10 person who is delivering pizza and/or cleaning up a pizza establishment after hours in anticipation of going to a bar for a birthday celebration and hanging out even later with friends could well decide to begin the party a little earlier and partake of a few alcoholic beverages prior to getting to Gullifty’s. Defendant’s request to totally ignore Agent’s Spahr’s testimony because of his misstating what the Defendant wore while at the booking center is unwarranted. A finder of fact is free to believe all, part, or none of any witness’s testimony. As is often stated, where a part of a witness’s testimony is inaccurate, the fact finder can consider whether it is an important matter or a minor detail and, for example, whether the witness made an honest mistake or was deliberately testifying falsely. There is no question that Cpl. Williams brought the Defendant to the Central Processing Center immediately after his arrest. Agent Spahr saw the Defendant. Whether he was wearing green shorts or khakis does not provide the Defendant with a defense to the charge of Driving Under the Influence, General Impairment. Similarly, when viewing the Defendant’s exhibits with regard to the degree of incline on which the field sobriety tests were performed, this Court finds that neither the incline or the lighting in any way affected the Defendant’s ability to perform these tests. What did affect his ability was the fact that he drank a sufficient quantity of alcohol such that he was “incapable of safe driving.” This Court finds that the Defendant drank enough alcohol to substantially impair his normal mental or physical faculties. He exhibited a diminution or enfeeblement in 11 the ability to exercise judgment to deliberate or to react prudently. In short, he could not control himself and therefore could not pass the field sobriety tests. CONCLUSION The Court did not find the Defendant’s testimony or explanations to be credible. Viewing the evidence in this case and all the reasonable inferences drawn therefrom in the light most favorable to the Commonwealth as the verdict winner, it is clear that there was sufficient evidence for this Court to find the Defendant guilty of the charge of Driving Under the Influence – General Impairment. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Marlin L. Markley, Jr., Esquire Attorney for Defendant bas 12