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HomeMy WebLinkAboutCP-21-CR-0003182-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-3182-2009 : ST V. : CHARGE: 1. DUI, GENERAL IMPAIRMENT (1); ST : 2. DUI, HIGHEST RATE (1); : 3. MAXIMUM SPEED LIMITS (SUMMARY); : 4. CARELESS DRIVING (SUMMARY) : ROBERT PATRICK DOLAN : AFFIANT: TPR. RONALD C. CAREY IN RE: OPINION PURSUANT TO P.A. R.A.P. 1925 Ebert, J., January 14, 2011 - Defendant was convicted of Driving Under the Influence, General Impairment, 75 Pa.C.S.A. §3802(a), Driving Under the Influence, Highest Rate, Pa.C.S.A. §3802(c), and Maximum Speed Limits, 75 Pa.C.S.A. §3362, after a non-jury trial on September 17, 2010. He was found not guilty of the charge of Careless Driving, 75 Pa.C.S.A. §3714(a). Defendant’s Concise Statement of the Errors Complained of On Appeal 1 submits the following: 1. There was insufficient evidence as a matter of law to support the verdicts of guilt for driving under the influence and speeding in that there was (1) no evidence of bad driving or that the defendant was incapable of safe driving as evidenced by the fact that the court found the defendant not guilty of Careless Driving; (2) the basis of the traffic stop for speeding was not supported by the evidence as the trooper erred as to the speed limit and location of the offense as the defendant was nowhere near the Sheetz on North Baltimore as he told the defendant; (3) the Commonwealth utilized the results of field sobriety testing to support its case against the defendant, but those tests were done on loose gravel, an uneven grading and roadway surface, and were performed even after the trooper was informed the defendant had bad knees to which the trooper responded by telling the defendant to 1 Concise Statement of the Errors Complained of on Appeal, filed Dec. 9, 2010. 1 do the best he could when the FST training indicates no such testing should occur in such circumstances, and finally; (4) the failure of the Commonwealth to produce the patrol car video of the traffic stop should have been considered against the Commonwealth similar to a missing witness and instead as favorable to the defense. 2. The verdicts of guilt for the offenses were against the weight of the credible evidence based on numerous errors in recall and detail by the arresting officer when weighed against the testimony of the defendant, evidence of the defendant’s good character, his past service to his country, and the law-abiding background of the defendant absent any criminal convictions, traffic convictions, or accidents. Procedural History A non-jury trial was held on September 17, 2010, and defendant was found guilty of Driving Under the Influence, General Impairment; Driving Under the Influence, Highest Rate; and Maximum Speed Limits. He was found not guilty of Careless Driving. The Defendant was sentenced on October 19, 2010. On Count 2, Driving Under the Influence, Highest Rate, he was sentenced to pay the costs of prosecution, a fine of $1,000.00, a CAT Fund Surcharge of $50.00, an Emergency Relief Fund fine of $10.00, and to undergo imprisonment in the Cumberland County Prison for not less than 72 hours nor more than 6 months. The sentence on Count 1, Driving Under the Influence, General Impairment, merged with the sentence at Count 2 for the purpose of sentencing. On Count 3, Maximum Speed Limits, the Defendant was sentenced to pay the costs of prosecution, a fine of $75.00, a CAT Fund Surcharge of $30.00, and an Emergency Relief Fund fine of $10.00. These sentences were the minimum mandatory sentences allowed by law. Defendant filed this timely appeal. 2 Statement of Facts On September 2, 2009, at approximately 10:20 p.m. Trooper Ronald Carey observed a vehicle driven by Defendant Robert Dolan traveling south on Route 34 in 2 Mount Holly Springs in a 35 mph zone. Trooper Carey clocked Defendant traveling approximately 60 miles per hour by measuring his speed against the speedometer in his 3 patrol car while following Defendant. Trooper Carey’s speedometer has been certified 4 for accuracy. Trooper Carey clocked Defendant’s speed at 60 mph for four tenths of a 56 mile. Trooper Carey then initiated a traffic stop. Trooper Carey activated his lights, but when Defendant failed to pull over, he also activated his siren, and Defendant pulled 7 over approximately a quarter of a mile after Trooper Carey activated his lights. Trooper Carey requested Defendant’s driver’s license, registration, and insurance. Trooper Carey had to make three requests to Defendant before he obtained 8 Defendant’s driver’s license. Defendant first handed Trooper Carey credit cards, then 9 just his registration and insurance, and finally his driver’s license after the third request. Trooper Carey detected a strong odor of alcohol while talking to Defendant and 10 observed Defendant to have glassy, bloodshot eyes. Defendant first denied drinking 11 any alcohol that day but then admitted that he had been drinking earlier while golfing. 2 Notes of Testimony, Sept. 17, 2010, p. 5. 3 N.T. 5-7. 4 N.T. 7-8. 5 Affidavit of Probable Cause, Police Criminal Complaint, filed Sept. 21, 2009. 6 N.T. 6. 7 N.T. 9. 8 N.T. 10. 9 N.T. 9-10. 10 Affidavit of Probable Cause, Police Criminal Complaint, filed Sept. 21, 2009. 11 N.T. 10. 3 Defendant agreed to perform field sobriety tests which included a walk and turn and a 12 one-leg stand. 13 The field sobriety tests were conducted on a level, improved berm. Defendant 14 performed poorly on the walk and turn. He did not begin with the proper starting position as instructed, failed to maintain heel to toe on any of the steps, made an improper turn, stumbled, again failed to maintain heel to toe on the second walking 15 phase, and took the wrong number of steps on the second walking phase. Trooper 16 Carey detected seven clues of intoxication during the walk and turn. According to field sobriety administration guidelines, officers are instructed to look for a minimum of two 17 clues to indicate that a person is intoxicated. Defendant performed poorly on the one- 18 leg stand. He did not perform the test as instructed, and he was sitting and leaning on 19 his vehicle at times while trying to perform the test. After the failed field sobriety tests, Trooper Carey took Defendant into custody and transported him to Carlisle Regional 20 Hospital. It was Trooper Carey’s opinion that Defendant was intoxicated and 21 incapable of safely operating a motor vehicle. Defendant agreed to have blood 22 samples drawn. Blood was drawn at approximately 11:00 p.m. Lab results indicated 23 that Defendant’s blood alcohol concentration was .259 percent. 12 N.T. 10. 13 N.T. 26. 14 N.T. 10. 15 N.T. 11. 16 N.T. 12. 17 N.T. 12. 18 N.T. 12. 19 N.T. 13. 20 N.T. 14. 21 N.T. 21. 22 N.T. 16-17. 23 N.T. 21. 4 Discussion Defendant appeals on the basis that there was insufficient evidence to support the verdicts and/or the verdicts were against the weight of the evidence in this case. Much of Defendant’s argument is based on his recollection of the facts which are contrary to Trooper Carey’s statements of the facts. We find Trooper Carey’s report and testimony to be accurate and credible and that Defendant’s testimony was not credible. In reviewing a sufficiency of evidence claim, the Court must determine whether the evidence and all reasonable inferences deductible therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to establish all elements of the crime beyond a reasonable doubt. Commonwealth v. Rakowski, 987 A.2d 1215, 1217 (Pa.Super. 2010). The standard of review for a weight of the evidence challenge is exclusively for the finder-of-fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Id. at 1219 (citing Commonwealth v. Charlton, 902 A.2d 554, 561) (Pa.Super. 2006). A verdict is only against the weight of the evidence if it is so contrary to the evidence that it shocks one's sense of justice. Id. Defendant appeals in part on the basis that because the Court found Defendant not guilty of Careless Driving, there is no evidence of bad driving, and therefore insufficient evidence as a matter of law to support the guilty verdicts for driving under the influence and speeding. We are not required to find Defendant guilty of Careless Driving in order to find him guilty of Driving Under the Influence and Maximum Speed 5 24 Limits. Defendant’s blood alcohol concentration was a .259 when tested after being drawn from Defendant less than an hour after being stopped by Trooper Carey on 25 September 2, 2009. Trooper Carey testified that he did not observe any open 26 containers in the vehicle. It is clear that he had been drinking prior to driving his vehicle and that he was intoxicated well above the legal limit. Trooper Carey observed that Defendant had glassy and bloodshot eyes and noted that he failed the field sobriety test. At trial Defendant testified that “I am admitting that I did have something to drink over the period of the day. But I didn’t realize that my blood alcohol was anywhere as 27 near that high.” Defendant did not even realize that his blood was drawn at Carlisle 28 Regional Hospital not the State Police barracks. Trooper Carey clocked Defendant for four tenths of a mile driving 60 mph in a 35 mph zone. We find this evidence sufficient to prove Defendant guilty of the charges for violations of Driving Under the Influence and Maximum Speed Limits. Defendant claims that Trooper Carey erred as to the speed limit and location of the offense but presents no evidence of the alleged errors. Trooper Carey wrote in his 29 police report that Defendant accelerated through a 35 mph zone at 60 mph and 30 testified to the same at trial. Defendant admitted that he was driving in a 35 mph zone 31 when Trooper Carey pulled him over. Defendant presents no evidence whatsoever that Trooper Carey erred about the location of the offense. At trial Defendant’s attorney asked Trooper Carey if he recalled telling Defendant that he followed him from Sheetz, 24 N.T. 35. 25 N.T. 17. 26 N.T. 28. 27 N.T. 49. 28 N.T. 49. 29 Affidavit of Probable Cause, Police Criminal Complaint, filed Sept. 21, 2009. 30 N.T. 5. 31 N.T. 40. 6 32 and Trooper Carey replied that he had not followed him from Sheetz. There is no evidence that Trooper Carey ever told Defendant that he followed him from Sheetz on North Baltimore Street. Defendant’s attorney also asked Trooper Carey if the speed limit was 25, not 35, where he clocked Defendant, and Trooper Carey replied that it is 33 35 past Pine Street. Trooper Carey did not clock Defendant until after the Pine Street intersection. Trooper Carey’s testimony and police report support that he clocked Defendant for a sufficient distance and determined that Defendant was exceeding the speed limit. We find nothing in the record to support Defendant’s claim that Trooper Carey erred in any way as to the speed limit or location of the offense. Defendant presents no evidence to support his claims that the field sobriety tests were performed on an uneven surface with loose gravel. Trooper Carey testified that 34 the tests were done on a level, improved berm approximately three feet wide. Defendant presented no contradictory evidence. Defendant also says that he told Trooper Carey that he had bad knees and could not perform the one-leg stand, but Trooper Carey’s report does not reflect that Defendant told him anything when he asked Defendant if he had any physical ailments of any kind. We find Trooper Carey’s report to be accurate and complete but note that there was overwhelming evidence of Defendant’s intoxication notwithstanding his poor performance on the one-leg stand. Defendant argues that the absence of the police video should be treated in a manner similar to a missing witness. We find this argument to be unpersuasive. If Defendant uses this reasoning, he would have to show specifically how the police video would have aided his defense. “When a defendant claims prejudice through the 32 N.T. 25. 33 N.T. 24. 34 N.T. 26. 7 absence of witnesses, he or she must show in what specific manner missing witnesses would have aided the defense. Commonwealth v. Tielsch, 934 A.2d 81, 92 (Pa.Super. 2007) (citing United States v. Trammell, 133 F.3d 1343, 1351 (10th Cir.1998) . . . Furthermore, it is the defendant's burden to show that the lost testimony or information is not available through other means.” Id. (citing United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997). Defendant did not attempt to show how the video would have helped his defense, nor did he attempt to show that any information supposedly available on the video was not presented by Trooper Carey at trial. For whatever reason, the patrol car video was not placed into evidence. Nowhere in the record did the Defendant establish that he had attempted to subpoena the video for his use. Accordingly, we are satisfied that anything on the police video was presented to the Court through Trooper Carey’s testimony. Defendant was not prejudiced by the absence of the police video. Conclusion Defendant’s appeal is simply based on a different version of facts which we do not find credible. It is clear that Defendant’s BAC level on the night of the offense, which was more than three times the legal limit, affected his ability to recall events accurately. This is evidenced by his failure to even know where he was when he had his blood drawn. The evidence in this case supports a guilty verdict on the charges of 8 Driving Under the Influence and Maximum Speed Limits. These verdicts, given Defendant’s blood alcohol content of .259 percent, do not shock anyone’s sense of justice. By the Court, __ M. L. Ebert, Jr., J. Matthew P. Smith, Esquire Attorney for Commonwealth John M. Shugars, Esquire Attorney for Defendant 9