HomeMy WebLinkAboutCP-21-CR-0002858-2009COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGES: (1) DRIVING UNDER THE INFLUENCE
: GENERAL IMPAIRMENT
V. (2) DRIVING UNDER THE INFLUENCE
: HIGH RATE OF ALCOHOL
(3) PERIODS FOR REQUIRING LIGHTED
LAMPS
MICHAEL A.
KONETSCO
OTN: L502752-5 : CP -21 -CR -2858-2009
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 22, 2011.
In this criminal case, Defendant was found guilty following a non jury trial of
Driving under the Influence, General Impairment, an ungraded misdemeanor,' Driving
under the Influence, High Rate of Alcohol, an ungraded misdemeanor,2 and Periods for
Requiring Lighted Lamps, a summary offense.' On the charge of Driving under the
Influence, High Rate of Alcohol, he was sentenced to pay a fine and to undergo the
mandatory minimum period of imprisonment applicable to the offense of not less than 48
hours (nor more than six months); on the charge of Periods for Requiring Lighted Lamps
he was sentenced to pay the mandatory fine of $25.00; the charge of Driving under the
Influence, General Impairment, was deemed to merge for sentencing purposes with the
more seriously penalized form of driving under the influence .4
' 75 Pa. C.S. §3802(a)(1).
2 75 Pa. C.S. §3802(b).
s 75 Pa. C.S. §4302(a)(1). See Order of Court, February, 2011 (verdict).
4 Order of Court, March 29, 2011 (sentence). Pending disposition of Defendant's appeal to the
Pennsylvania Superior Court, he remains at liberty on his own recognizance. Order of Court, March 29,
2011 (bail continued).
From the judgment of sentence, Defendant has filed an appeal to the Pennsylvania
Superior Court .5 The bases of the appeal have been expressed in a statement of errors
complained of on appeal as follows:
1. The Commonwealth failed to present sufficient evidence for the Court to find
Defendant guilty beyond a reasonable doubt.
2. The Court erred in determining credibility in favor of the Commonwealth
witnesses where the testimony was in conflict with other evidence presented by the
Commonwealth .6
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, a court is to
view the evidence in the light most favorable to the Commonwealth as verdict winner,
drawing all proper inferences favorable to the Commonwealth? and bearing in mind that a
trier of fact is free to believe all, part or none of the evidence presented.$ Viewed in that
light, the evidence at trial in this case may be summarized as follows:
On Friday, August 7, 2009, at about 11:45 p.m. Patrolman Michael Reibsane of
the Middlesex Township Police Department was on duty in a patrol car traveling south on
the Harrisburg Pike, in Middlesex Township, Cumberland County, Pennsylvania.9 As he
approached the road's intersection with South Middlesex Road, he observed a Honda
automobile, with its rear taillights off, directly ahead of him, make a left turn onto South
Middlesex Road. 10
The vehicle was stopped by the officer in a motel parking lot, whereupon its driver
and sole occupant, Defendant Michael A. Konetsco, got out, leaned against the door,
s Defendant's Notice of Appeal, filed April 25, 2011.
6 Defendant's Concise Statement of the Errors Complained of on Appeal, filed May 12, 2011.
Commonwealth v. O'Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290.
s Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582, 585.
9 N.T. 5, 8-9, Trial, October 28, 2010.
10 N.T. 9-10, 15, Trial, October 28, 2010.
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began swearing and cursing at the officer, accused him of harassment, and refused to
obey orders to get back into the vehicle until the officer drew his taser.11 Defendant
displayed glassy, bloodshot eyes, emitted the odor of an alcoholic beverage, and had on
his person no driver's license or identification. 12
In the opinion of Patrolman Reibsane, whose training included 40 hours of
instruction on the subject of driving under the influence 13 and whose experience included
employment as a municipal police officer in the Commonwealth since 200614 and
participation in about a hundred driving -under -the -influence arrests, 15 Defendant was at
that time under the influence of alcohol to a degree rendering him incapable of safe
driving. 16 Although the officer conceded that he did not observe actual erratic driving on
the part of Defendant before the stop was effected, 17
the period of his observation of
Defendant's operation of the vehicle encompassed only about 300 feet of travel.18 The
area was occupied by businesses, such as truck stops and motels, and included artificial
lighting. 19
Defendant's explanation for the absence of illuminated taillights was that he was
not familiar with the controls for the lights on the Honda .20 He claimed that he had
compensated for this deficiency by activating the brake lights through pressure on the
brake pedal as he drove .21 He also said that he had drunk only "a beer and a half ,22
" N.T.
10-11, 14, 17-20, Trial, October 28, 2010; N.T. 6, Trial, February 17, 2011.
12 N.T.
11, 20, Trial, October 28, 2010.
" N.T.
6-7, Trial, October 28, 2010.
14 N.T.
5, Trial, October 28, 2010.
" N.T.
7, Trial, October 28, 2010.
16 N.T.
11-12, Trial, October 28, 2010.
17 N.T.
15, Trial, October 28, 2010.
" N.T.
17, Trial, October 28, 2010.
19 N.T.
14-15, Trial, October 28, 2010.
20 N.T.
6, Trial, February 17, 2011.
21 N.T.
8, 12, Trial, February 17, 2011.
22 N.T.
8, Trial, February 17, 2011.
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Patrolman Reibsane placed Defendant under arrest for driving under the
influence .23 After an exchange in which Defendant continued to accuse the officer of
harassment and claimed he couldn't "fit in the back of the patrol car, ,24 Patrolman
Reibsane managed to get him seated in the back of the vehicle .25 Defendant then kicked
one of his shoes off and told the officer to retrieve it for him. 26
Defendant was transported to the Cumberland County Booking Center, 27 refused
to acknowledge by his signature that he had been read his so-called O'Connell
warnings, 28 was subjected to a 20 -minute observation period by two certified breath test
operators in tandem,29 and submitted to a chemical test of his breath .30 The Intoxilizer
5000 EN utilized for the test analyzed with precise accuracy a known sample for its
alcoholic content, both immediately before and immediately after Defendant's teSt. 31 The
lower of Defendant's two test results, obtained at 12:34 a.m. on August 8, 2010, was a
BAC level of. 105% . 32
A booking center official corroborated Patrolman Reibsane's testimony that
Defendant was emitting an "odor of alcohol" and displayed glassy, bloodshot eyes.33 He
noticed that Defendant was unusually dressed in that he was missing a shoe,34 but did not
23 N.T. 12, Trial, October 28, 2010.
24 N.T. 12, Trial, October 28, 2010. Nothing in the Defendant's appearance at trial suggested to the court
any explanation for such a claim.
2s N.T. 12, Trial, October 28, 2010.
26 N.T. 27-28, Trial, October 28, 2010. The officer did not. N.T. 27-28, Trial, October 28, 2010.
Defendant later returned to the scene and found his shoe. N.T. 14-15, Trial, February 17, 2011.
27 N.T. 12-13, Trial, October 28, 2010.
2s N.T. 25, 27, Trial, October 28, 2010; see Commonwealth, Department of Transportation v. O'Connell,
521 Pa. 242, 555 A.2d 873 (1989).
29 N.T. 12-13, 29, 31-33, 42-43, Trial, October 28, 2010.
so N.T. 27, Trial, October 28, 2010.
31 N.T. 62, Trial, October 28, 2010.
12 N.T. 45, Trial, October 28, 2010.
" N.T. 50, 53, Trial, October 28, 2010.
34 N.T. 50, Trial, October 28, 2010.
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regard his speech as slurred, his walking as impaired, or his attitude as uncooperative
while at the center.35
Following the evidentiary phase of the bench trial, at which Defendant continued
to maintain that he had not drunk more than one and a half beers,36 accused the officer of
commencing their personal encounter by screaming at him, 37 denied that he had kicked
his shoe off, 38 and attributed the prosecution to a police vendetta arising out of an
incident with his son,39 Defendant's counsel argued that the Commonwealth's evidence
was insufficient to support guilty verdicts because (a) under a strict reading of the
description of the offense in the Information, Defendant was not required to activate his
vehicle lights in the presence of ambient lighting in the vicinity, 40 (b) given the absence
of direct evidence of unsafe driving and the lack of corroboration by other witnesses of
some aspects of the officer's testimony, a trier -of -fact could not reasonably conclude
beyond a reasonable doubt that Defendant was impaired to the extent that he could not
drive safely, 41 and (c) the tandem observation of Defendant during the twenty -minute
observation period preceding administration of the breath test was not a procedure
sanctioned by law, and accordingly the BAC test result was invalid.42
At the conclusion of the trial, the court found Defendant guilty of the three
offenses charged.43 At sentencing, Defendant reaffirmed a statement he made to his
" N.T.
50, Trial, October 28, 2010.
36 N.T.
8, 16, Trial, February 17, 2011.
37 N.T.
7, Trial, February 17, 2011.
" N.T.
10-11, Trial, February 17, 2011.
39 N.T.
12-13, Trial, February 17, 2011.
40
N.T.
17-19, Trial, February 17, 2011.
41 N.T.
19-21, Trial, February 17, 2011.
42 N.T.
21-22, Trial, February 17, 2011.
43 N.T.
23, Trial, February 17, 2011; Order of Court, February 17, 2011 (verdict).
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presentence investigator that "this County is corrupt from the D.A.[]s to the Judge to the
cop."44 His appeal from the judgment of sentence was filed on April 25, 2011.45
DISCUSSION
Sufficiency of the evidence general rule. On a challenge to the sufficiency of the
evidence in a criminal case, the proper test is "whether, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner and drawing all proper inferences
favorable to the Commonwealth, the trier of fact could have determined all the elements
of the crime ha[d] been established beyond a reasonable doubt." Commonwealth v.
O'Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290, quoting Commonwealth v.
Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995).
A challenge to the sufficiency of the evidence does not implicate a weighing of the
evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135. The trier
of fact is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio,
2000 PA Super 384, ¶5, 764 A.2d 582, 585, quoting Commonwealth v. Griscavage, 512
Pa. 540, 543, 517 A.2d 1256, 1257 (1986). In this regard, it has been said that
[i]t is well established that the trier of fact has the responsibility of reconciling conflicts
in the testimony presented by accepting that evidence they find worthy of belief and
rejecting that which they believe is not. This responsibility is not altered because the
contradictions appear in the Commonwealth's case ....
Commonwealth v. Kearney, 459 Pa. 603, 607, 331 A.2d 156, 157 (1975) (emphasis
added).
A deliberately false statement on the part of a defendant -witness on a material
point is, of course, a consideration for the trier of fact in evaluating the credibility of the
balance of his or her testimony. Commonwealth v. Parente, 184 Pa. Super. 125, 132, 133
A.2d 561, 564 (1957).
Periods for requiring lighted lamps. Under Section 4303(b) of the Vehicle Code, it
is provided that
44 N.T. 5, Sentencing Proceeding, March 30, 2011.
45 Defendant's Notice of Appeal, filed April 25, 2011.
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[e]very vehicle operated on a highway shall be equipped with a rear lighting system
including, but not limited to, rear lamps, rear reflectors, stop lamps and license plate
light, in accordance with regulations .. 46
Under Section 4302(a)(1) of the Vehicle Code, which the Criminal Complaint 47
and the Information48 cited as the provision violated by Defendant,49 and the language of
which the affidavit of probable cause accompanying the Criminal Complaint
paraphrased '50 "[t]he operator of a vehicle upon a highway [is required to] display the
lighted head lamps and other lamps and illuminating devices required under this chapter
for different classes of vehicles ... between sunset and sunrise ... »si
Given the statutory language of the subsection cited in the criminal complaint and
Information, the court was unable to agree with Defendant's counsel that the presence of
some ambient artificial light along the roadways being traversed by Defendant shortly
before midnight on the occasion in question represented a defense to the charge.
Driving under the influence, general impairment. Under Section 3802(a)(1) of the
Vehicle Code, "[a]n 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 safely driving, operating or being in actual physical
control of the movement of the vehicle."52 To be guilty of this form of the offense, a
person "need not have been drunk ... or driving wildly or erratically .... It is enough if
46 75 Pa. C.S. §4303(b).
47 Criminal Complaint, filed August 11, 2009.
48 Information, filed April 14, 2010.
49 Notwithstanding the correct statutory citation with respect to the offense, and the language of the
probable cause affidavit accompanying the criminal complaint, the Information misdescribed the offense
in terms of a "failure to display lighted head and other lamps and illuminating devices at a time when
there was insufficient or unfavorable conditions." Information, filed April 14, 2010. The court did not feel
that Defendant had been misled or otherwise prejudiced by this inadvertence.
so Criminal Complaint, affidavit of probable cause, filed August 11, 2009.
" 75 Pa. C.S. §4302(a)(1).
52 75 Pa. C.S. §3802(a)(1).
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alcohol had substantially impaired [his or her] normal mental or physical faculties that
were essential to safe operation of a vehicle.""
Indicia of driving under the influence in this form include a motorist's admission
of the consumption of alcohol,54 glassy, bloodshot eyes,55 the odor of an alcoholic
beverage emanating from his or her person,56 uncouth language,57 uncooperative
behavior, 58 belligerence and combativeness,59 a significant BAC level,60 and the opinion
of a sufficiently trained and experienced law enforcement officer based upon personal
observation that the motorist was under the influence of alcohol to a degree that rendered
him or her incapable of safe driving.61 All of these factors were present in the instant
case. In addition, the obvious untruthfulness of Defendant's testimony that he had
consumed only a beer and a half, in light of the high BAC test result, cast doubt upon the
veracity of the balance of his testimony.
The fact that Defendant did not have an accident in the course of driving 300 feet,
while certainly a factor to be weighed in his favor on the issue of whether he was under
the influence within the meaning of the statutory provision quoted above, did not, in the
court's view, deprive the Commonwealth's case of being persuasive on this issue beyond
a reasonable doubt. Similarly, the fact that observations of Defendant at different times
by Commonwealth witnesses did not coincide in every respect was not fatal to the
Commonwealth's case.
" Pennsylvania Suggested Standard Criminal Jury Instructions § 17.3802(h) (April 2005 rev.).
14 See Commonwealth v. Leighty, 693 A.2d 1324 (Pa. Super. Ct. 1997).
" See Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000).
56 See Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091 (1990).
57 See Commonwealth v. Butts, 35 Pa. D. & C.2d 326 (Philadelphia Co. 1964).
" See Hasson v. Commonwealth, Department of Transportation, 866 A.2d 1181 (Pa. Commw. Ct. 2005).
59 See Stancavage v. Commonwealth, Department of Transportation, 986 A.2d 895 (Pa. Commw. Ct.
2009); Commonwealth v. Butts, 35 Pa. D. & C.2d 326 (Phila. Co. 1964).
60 See Commonwealth v. Thur, 2006 PA Super 208, 906 A.2d 552.
61 See Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000).
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Driving under the influence, high rate of alcohol. Under Section 3802(b) of the
Vehicle Code, "[a]n 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
alcohol concentration in the individual's blood or breath is at least 0.10% but less than
0.16% within two hours after the individual has driven, operated or been in actual
physical control of the movement of the vehicle .,,62
Under Section 77.24(a) of Title 67 of the Pennsylvania Code (breath test
procedures), the administration of a breath test to determine alcoholic content is to be
preceded by a 20 -minute observation period. The purpose of this procedure is to preclude
the possibility that the test will be affected by irrelevant factors. See id. This regulation
specifically provides that
[c]ustody of the person may be transferred to another officer or certified breath test
operator during the 20 consecutive minutes or longer period as long as the person to be
tested is under observation for at least 20 consecutive minutes prior to the initial
administration of the alcohol breath test.
Id.
Accordingly, Defendant's argument that the breath test result in his case should be
deemed invalid on the ground that the 20 -minute observation period had been conducted
by two persons acting in succession was not accepted.
CONCLUSION
Although the errors complained of on appeal by Defendant have been rather
generally stated, the court has attempted to anticipate the specifics of Defendant's
position based upon counsel's argument at trial. Cf. Commonwealth v. Laboy, 594 Pa.
411, 936 A.2d 1058 (2007). For the foregoing reasons, it is believed that the judgment of
sentence in Defendant's case was properly entered.
62 75 Pa. C.S. §3802(b).
0
BY THE COURT,
J. Wesley Oler, Jr., J.
Matthew P. Smith, Esq.
Chief Deputy District Attorney
For the Commonwealth
John M. Shughars, Esq.
Public Defender's Office
For the Defendant
10