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HomeMy WebLinkAbout00-1651 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 00-1651 CRIMINAL : : CHRISTOPHER Q. BROCIOUS : IN RE: DEFENDANT’S POST-SENTENCE MOTION BEFORE HESS, J. OPINION AND ORDER The defendant, in this case, was co nvicted, following jury trial on March 9, 2001, of a count of driving under the influence. He was found guilty under 75 Pa.C.S.A. 3731(a)(1) on an allegation that he was under the influence of alcohol to a degree which rendered him incapable of safe driving. He has subsequently been sentenced and has filed post-sentence motions which are now before the court. Our reprise of the facts is in the light most favorable to the Commonwealth. See Com. v. Wilson , 538 Pa. 485, 649 A.2d 435 (1994). On the nig ht of the alleged incident, the defendant’s vehicle was found stopped near the entrance to a toll booth on the Pennsylvania Turnpike. While it was initially suspected that Mr. Brocious may have been suffering from some sort of seizure disorder, subsequent investigation led the police to conclude that Mr. Brocious was passed out from alcohol. The fact that he had been drinking was borne out by the fact that a bottle of Captain Morgan rum was found either between or under the legs of the defendant as he was seated in the driver’s seat of his vehicle. Emergency medical technicians and police officers involved in the case testified that, in their opinion, the defendant was under the influence of alcohol to a degree that rendered him 00-1651 CRIMINAL incapable of safe driving, describing a strong odor of alcohol, slurred speech, and bloodshot eyes. The witnesses were thoroughly cross-examined concerning prior testimony which may have been inconsistent or incongruous with their trial testimony. The Commonwealth’s final witness was Dr. Lawrence Paul who examined the defendant at the Holy Spirit Hospital Emergency Room some two hours after he was taken from his vehicle. While the doctor could not give an opinion within the degree of medical certainty with respect to the defendant’s condition at the time he was driving, his diagnosis of the defendant was that he was in an altered mental state due to “alcohol intoxication.” The assessment of the credibility of these various witnesses was, of course, for the jury. A jury verdict i s considered against the weight of the evidence only when it appears from the record that the verdict was so contrary to the evidence as to shock one’s sense of justice. Com. v. Parker , 387 Pa.Super. 415, 564 A.2d 246 (1989). We are not shocked. The de fendant’s other argument in this case is that we erred by failing to give the jury an instruction with respect to “false in one, false in all.” The defendant contends that there was specific application of this maxim to the testimony of Trooper Sarra. We do not believe that the application of this doctrine to the testimony of Trooper Sarra was adequately demonstrated. The instruction falsus in uno permits the jury to disregard all of a witness’s testimony only if the witness willfully and corruptly swears falsely to a material fact. It involves more than mere contradiction or self-contradiction. See Com. v. Maute , 336 Pa.Super. 394, 485 A.2d 1138 (1984). See also Com. v. Lilliock , 740 A.2d 237 ( Pa.Super 1999). The defendant’s attack on the testimony of Trooper Sarra, however, had to do with alleged inconsistent statements at the preliminary hearing. The jury was, in fact, instructed concerning the impact of prior inconsistent 2 00-1651 CRIMINAL testimony in assessing credibility. N.T. 101. We are satisfied that any further instruction in that regard was unnecessary. In addition, the request for the charge of falsus in uno was not made until after jury instructions were concluded and the panel was ready to retire to deliberate. The rules are explicit that points for charge must be submitted to the trial court prior to the commencement of closing addresses. See Pa.R.Crim.P.647(A). We acknowledge that the failure to file written points for charge does not by itself constitute a waiver of all objections to the charge. See Com. v. Alvin , 357 Pa.Super. 509, 516 A.2d 376 (1986) appeal denied, 515 Pa. 603, 529 A.2d 1078 (1987). Nonetheless, the lateness of the request in this case deprived us of the opportunity to give this instruction as part of the general charge on credibility; the place in the charge where it belongs. This, of course, assumes that it belongs anywhere. As noted in Com. v. Williams , 323 Pa.Super. 512, 470 A.2d 1376, fn 12 (1984), regarding falsus in uno : In previous cases, we have questioned the utility of the maxim. In Commonwealth v. Levenson , 282 Pa.Superior Ct. 406, 422, A.2d 1355 (1981), we quoted Professor Wigmore in expressing our concern as to the maxim’s true value to jurors: “It may be said, once for all, that the maxim is in itself worthless; --first, in point of validity, because in one form it merely contains in loose fashion a kernel of truth which no one needs to be told, and in the others it is absolutely false as a maxim of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is frequently a misunderstanding of its proper force, and secondly, because 3 00-1651 CRIMINAL it has become in the hands of many counsel a mere instrument for obtaining new trials upon points wholly unimportant in themselves.” We are satisfied that we did not err in failing to grant the requested point for charge with respect to false in one, false in all things. ORDER AND NOW, this day of July, 2001, the motion of the defendant for post- sentence relief is DENIED. BY THE COURT, _____ __________________________ Kevin A. Hess, J. Office of District Attorney Patrick Lauer, Jr., Esquire For the Defendant : rlm 4 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : 00-1651 CRIMINAL : : CHRISTOPHER Q. BROCIOUS : IN RE: DEFENDANT’S POST-SENTENCE MOTION BEFORE HESS, J. ORDER AND NOW, this day of July, 2001, the motion of the defendant for post- sentence relief is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Office of District Attorney Patrick Lauer, Jr., Esquire For the Defendant : rlm