HomeMy WebLinkAbout96-0017 Criminal (2)COMMONWEALTH
Ve
ERIC WILLIAM McKENZIE
OTN: E005539-2
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 96-0017 CRIMINAL TERM
CHARGE: (A) DUI
(S) DUS (Sum)
(C) CARELESS DRIVING (Sum)
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., October~3, 1996.
In this criminal case, Defendant was found guilty following a
non-jury trial of the following offenses: (1) Driving under the
Influence in violation of Section 3731(a)(1) (driving under the
influence of alcohol to a degree rendering the person incapable of
safe driving) and Section 3731(a)(4) of the Vehicle Code (driving
under the influence of alcohol while the person's blood alcohol
content level is .10% or greater);~ (2) Driving under Suspension in
~ Section 3731 of the Vehicle Code provides, in pertinent
part, as follows:
S3731. Driving under influence of alcohol or
controlled substance
(a) Offense defined. - A person shall not
drive, operate or be in actual physical
control of the movement of any vehicle:
(1) while under the influence of
alcohol to a degree which renders
the person incapable of safe
driving;
(4) while the amount of alcohol by
weight in the blood of the person is
0.10% or greater ....
Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A.
S3731.
NO. 96-0017 CRIMINAL TERM
violation of Section 1543(a) of the Vehicle Code;2 and (3) Careless
Driving in violation of Section 3714 of the Vehicle Code.3
Defendant was found not guilty of Driving under the Influence in
violation of Section 3731(a)(5) of the Vehicle Code. Defendant has
appealed to the Superior Court from the judgment of sentence.
On appeal, Defendant contends (a) that the charge of driving
under the influence of alcohol in violation of Section 3731(a)(4)
of the Vehicle Code should be dismissed because the court erred in
Section 1543 of the Vehicle Code provides in pertinent
part, as follows:
S1543. Driving while operating privilege is
suspended or revoked.
(a) Offense defined. -- Except as provided in
subs%ction (b), any person who drives a motor
vehicle on any highway or trafficway of this
Commonwealth after the commencement of a
suspension, revocation or cancellation of the
operating privilege and before the operating
privilege has been restored is guilty of a
summary offense and shall upon conviction, be
sentenced to pay a fine of $200.
Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa. C.S.A.
§1543.
Section 3714 of the Vehicle Code provides as follows:
S3714. Careless driving
Any person who drives a vehicle in careless
disregard for the safety of persons or
property is guilty of careless driving, a
summary offense.
Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S.A.
§3714.
NO. 96-0017 CRIMINAL TERM
failing to suppress a BAC test result, and (b) that the evidence
was insufficient to sustain the remaining guilty verdicts. This
opinion in support of the judgment of sentence is written pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a).
SUFFICIENCY OF THE EVIDENCE
Statement of facts. "In reviewing the sufficiency of the
evidence, [a court] must ... [view] all of the evidence and the
reasonable inferences drawn therefrom ... in the light most
favorable to the Commonwealth as the verdict winner." Commonwealth
v. Michael, Pa. , __, 674 A.2d 1044, 1047 (1996). Viewed
in this light, the evidence at trial may be summarized as follows:
At approximately 1:00 a.m.4 on Saturday, March 18, 1995,s
Willi~ C. Palmero, a Pennsylvania state trooper specializing in
accident reconstruction, and stationed in Carlisle,6 was dispatched
to the scene of a one-vehicle accident.7 The accident occurred
while the vehicle was traveling south on Pennsylvania State Route
4 Non-Jury Trial, Commonwealth v. McKenzie, No. 96-0017
Criminal Term, N.T. 23 (hereinafter N.T. __).
N.T. 11.
N.T. 12.
7 A 911 call reporting the accident was received by the
dispatcher at approximately 12:58 a.m. N.T. 23.
3
NO. 96-0017 CRIMINAL TERM
34, approximately a half-mile north of the Borough of Mount Holly
Springs, in Cumberland County.8
Upon his arrival at the scene, Trooper Palmero observed a
dark-colored Mercury Topaz situated 200 to 300 feet off the roadway
to the east.9 The vehicle was on a paved driveway which led from
the roadway to a farmhouse at a point where southbound Route 34
curved to the left. The vehicle was on its roof, facing generally
to the north.1°
After examining the scene, Trooper Palmero concluded that the
vehicle ran off the roadway at what would be the beginning of the
curve as a result of the failure of the vehicle to negotiate that
part of the curve.~1 The vehicle continued traveling south on a
straight course and hit a concrete culvert.~2 Upon striking the
culvert, the vehicle became airborne for a distance of
approximately 53 feet, at which point it rolled over, slid and
spun, and came to rest on its roof.~3
8 N.T. 13.
on either side,
10
11
12
13
Route 34 is a two-lane roadway with paved berms
N.T. 23.
N.T. 14, 20.
Id.
Id. The speed limit was 45 m.p.h.
N.T. 14.
Id.
4
NO. 96-0017 CRIMINAL TERM
After examining the tire tracks left by the vehicle as it
traveled off the roadway, Trooper Palmero concluded that the driver
at that point had no longer been operating the steering wheel or
brakes and that the car had been rolling free.~4 The weather
conditions at the time of the accident were not adverse, and the
road conditions were good.~s
Defendant, who was the operator of the vehicle, had already
been extricated from the vehicle when Trooper Palmero arrived, and
he was being prepared for transportation to Hershey Medical
Center.~6 Defendant was complaining that his "belly" hurt, but he
was otherwise incoherent and the trooper was unsuccessful in an
attempt to interview him about the accident.~? The trooper tried
to ask Defendant questions, but the Defendant's answers were
unintelligible.~8
During his contact at the scene with the Defendant, Trooper
Palmero detected a strong odor of an intoxicating beverage coming
frOm Defendant.~9 Defendant "reeked" of this odor, according to the
N.T. 15.
Id.
Id.
N.T. 15-16.
Id.
Id.
NO. 96-0017 CRIMINAL TERM
trooper.2° The trooper examined the interior of the vehicle and
discovered beer cans inside.2~ One beer can was open and contained
some beer.2~ The beer was still cold, and, when Trooper Palmero
poured it out, it still foamed.23
Trooper Palmero then "cleared" the scene and returned to the
Carlisle Barracks; he requested that state police in Harrisburg
send someone to obtain a blood alcohol content test result from
Hershey Medical Center.24 The BAC test result on a sample of
Defendant's blood drawn at 3:45 a.m. was .21%.2s
A gentleman who had also been driving on Route 34 at the time
of the accident lent support to Trooper Palmero's reconstruction of
the incident. John B. Gleckner was traveling north on Route 34 on
the date in question at approximately 12:30 a.m. when he observed
a car coming from the opposite direction veer off to the right side
of the road.26 When Mr. Gleckner looked back to see what had
happened to the vehicle, he saw it lying upside down on a lane
Id.
N.T. 17.
Id.
Id.
N.T. 18.
See Commonwealth Exhibit 1.
N.T. 6.
6
NO. 96-0017 CRIMINAL TERM
leading to a farmhouse.27 Mr. Gleckner drove to a nearby tavern to
call for help and then returned to the accident scene.28
A certified copy of Defendant's driving record indicated that
his operating privileges had been suspended at the time of the
accident.~9 His most recent suspensions had been as the result of
underage drinking (1992), failure to take an examination ordered
because of an excessive accumulation of points (1993), and speeding
at approximately twice the legal rate (1994).30 Notice of these
suspensions, all of which were apparently still in effect when the
accident occurred due to his failure to turn in his license, were
mailed to Defendant.3~ An operator's license was found in
Defendant's clothing, but may or may not have been examined
28 N.T. 6-7. At the tavern, Mr. Gleckner asked the bartender
to call in the accident. When the bartender called, however, he
learned that the accident had already been reported. N.T. 6.
~9 N.T. 19; Commonwealth Exhibit 2.
Commonwealth Exhibit 2.
3~ Id.
NO. 96-0017 CRIMINAL TERM
closely.32 No argument was presented by Defendant that the notices
were not sent to a correct address.
On the basis of the foregoing evidence, the court found
Defendant guilty of driving under the influence, driving under
suspension and careless driving. He was sentenced to undergo the
mandatory minimum term of imprisonment for a first offense of
driving under the influence; to pay the mandatory minimum fine of
$200 for driving under suspension; and to pay a fine of $25 for
careless driving.3~ Defendant's appeal on sufficiency-of-the-
evidence grounds from the judgment of sentence is premised as
follows:
The conviction under Subsection (a)(1)
[of Section 3731 of the Vehicle Code] should
be dismissed because of the inadequacy of the
evidence to sustain the Commonwealth's burden
of proving this case beyond a reasonable
doubt. The evidence reveals that nobody
actually witnessed Mr. McKenzie involved in
the automobile accident itself which led to
these charges and that no testimony reveals
unsafe driving on his part. One witness, John
B. Gleckner, was only able to say that he
observed Mr. McKenzie's vehicle "veer off to
the right side of the road." However, there
is no evidence that he did so due to an
~2 N.T. 25-27.
Trooper Palmero testified that "[t]he only time we retain
an operator's license is for fatal accidents to keep the license to
send back to PennDot. It was either put back with the clothes, put
with the person to be transported, or simply just left in the
vehicle." N.T. 27. "[F]rom what [he] remember[ed]," the trooper
did not recall the license as indicating that it was expired. Id.
Order of Court, August 13, 1996.
8
NO. 96-0017 CRIMINAL TERM
inability to drive safely, as opposed to the
myriad of reasons which could cause this sort
of event, from vehicular defects, to animals
in the road to road conditions.34
With respect to the driving under
suspension charge, the Defendant was found
guilty of the summary offense of 75 Pa. C.S.A.
§1543(a), a non-DUI related offense carrying a
mandatory fine of $200.00 and no imprisonment.
At pp. 26-27 of the Trial Transcript, Trooper
Palmero acknowledged that the Defendant's
operator's license was, in fact, obtained from
the Defendant's clothing after it was cut off
of him. The Commonwealth presented no
evidence in support of its contention that the
Defendant was, in any way, aware of or on
notice that his license was considered to be
under suspension and, given the fact that he
had in his possession at the time a valid and
current operator's license, the Commonwealth
has failed to make out this charge.35
The careless driving charge can only be
substantiated by a claim that the Defendant
was, at the time, operating his vehicle in a
careless manner as described in the Vehicle
Code. For the same reasons that the DUI
charge of unsafe driving cannot be
established, so too should this summary charge
be dismissed.~
Discussion. The test for sufficiency of the evidence is
whether "the evidence admitted at trial, together with all
34 Defendant's Concise Statement of Matters Complained of on
appeal, paragraph 4(B).
~ Id., paragraph 3.
~ Id., paragraph 5.
9
NO. 96-0017 CRIMINAL TERM
reasonable inferences therefrom," viewed in the light referred to
previously, would permit a trier of fact to find "that each element
of the offense charged was supported by evidence and inferences
sufficient in law to prove guilt beyond a reasonable doubt."
Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2
(1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991).
With respect to the sufficiency of the evidence to support the
verdict of guilty of driving under the influence of alcohol to a
degree rendering a person incapable of safe driving, in violation
of Section 3731(a)(1) of the Vehicle Code, the following language
from the Pennsylvania Supreme Court is instructive:
The statute does not require that a person be
drunk, or intoxicated, or unable to drive his
automobile safely in traffic, but merely that
the Commonwealth prove beyond a reasonable
doubt that the defendant was operating his
automobile under the influence of intoxicating
liquor .... The statutory expression "under
the influence of intoxicating liquor" includes
not only all the well known and easily
recognized conditions and degrees of
intoxication, but also any mental or physical
condition which is the result of drinking
alcoholic beverages and (a) which makes one
unfit to drive an automobile, or (b) which
substantially impairs his judgment, or
clearness of intellect, or any of the normal
faculties essential to the safe operation of
an automobile.37
The Court has further stated that substantial impairment means
"a diminution or enfeeblement in the ability to exercise judgment,
37 Commonwealth v. Griscavage, 512 Pa. 540, 544-45, 517 A.2d
1256, 1258 (1986) (emphasis in original).
10
NO. 96-0017 CRIMINAL TERM
to deliberate or to react prudently to changing circumstances and
conditions. Its meaning is not limited to some extreme condition of
disability."38 Thus, with regard to the proof necessary to meet the
element of inability to drive safely, the "absence of extreme
impairment or other tangible behavior is not necessarily
dispositive of [a defendant's] ability to operate his vehicle in a
safe manner.''39
Familiar indicia of driving under the influence of alcohol to
the required degree include unsafe driving,4° an accident under
circumstances suggestive of serious driver error,4~ the odor of an
alcoholic beverage,42 a blood alcohol level in excess of .10%,43 and
incoherency.44 All of these indicia were present in the instant
Id. at 545, 517 A.2d at 1258.
39 Commonwealth v. Weis, 416 Pa. Super. 623, 637, 611 A.2d
1218, 1226 (1992).
4o See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d
1245 (1990).
4~ 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).
4~ See Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d
1091; Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748
(1982).
43 See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa.
C.S.A. S1547(d)(2); Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d
26 (1988).
44 See Commonwealth v. Kowalek, 436 Pa. Super. 361, 647 A.2d
948 (1994).
11
NO. 96-0017 CRIMINAL TERM
case, and it is believed that these facts and the reasonable
inferences to be drawn therefrom were sufficient in law to permit
the factfinder to conclude, beyond a reasonable doubt, that
Defendant drove a vehicle while under the influence of alcohol to
a degree that rendered him incapable of safe driving.
With respect to the sufficiency of the evidence to support the
verdict of guilty of driving under suspension, it is noted that
"the type of actual notice contemplated and required in license
suspension cases can be express or implied actual notice."
Commonwealth v. Crockford, 443 Pa. Super. 23, 31, 660 A.2d 1328,
1330 (1995).
Notice is a question of fact, and
anything that proves knowledge or is legal
evidence showing that knowledge exists can be
sufficient. As a practical matter, in most
cases it is virtually impossible for the
Commonwealth to prove positively that the
defendant received express actual notice of
suspension; only the defendant would have such
knowledge. The Commonwealth, relying only
upon the facts and circumstances of a case,
can, at best, impute such knowledge to the
defendant. To hold otherwise would make the
provisions of §1543 [of the Vehicle Code]
virtually unenforceable and unworkable.
Id. at 31-32, 660 A.2d at 1330.
It has been held that evidence tending to show that a
defendant's license was suspended for a Vehicle Code offense such
as driving under the influence, that notice of the suspension had
been mailed to the defendant by the Department of Transportation,
and that the defendant failed to produce a current driver's license
12
NO. 96-0017 CRIMINAL TERM
when he was stopped is sufficient to prove that the defendant was
on notice of the suspension.45 The absence of an argument that
notice was sent to an incorrect address is also a consideration in
this regard.46
In this case, the Commonwealth's evidence tended to show that
Defendant's license was under suspension pursuant to three separate
Vehicle Code provisions; that the oldest of these suspensions dated
back to 1992; that notices of all of the suspensions were mailed by
the Department of Transportation to Defendant, with no argument
being made that the address was incorrect at the time of mailing;
and that Defendant did not affirmatively produce a driver's
license, representing that he thought it was current. Although the
question is admittedly a close one, the court believes that these
"facts and circumstances" were sufficient in law to allow a
factfinder to reasonably conclude beyond a reasonable doubt that
Defendant was aware on March 18, 1995, that he was not permitted to
be driving.
With respect to the sufficiency of the evidence to support the
verdict of guilty of careless driving, the circumstances of the
accident recited above, including Defendant's failure to negotiate
a curve, his violent entry onto private property, and his condition
45
(1995).
46
( 1995).
Commonwealth v. Crockford, 443 Pa. Super. 23, 660 A.2d 1326
Commonwealth v. Stadtfeld, 445 Pa. Super. 271, 665 A.2d 487
13
NO. 96-0017 CRIMINAL TERM
of being incapable of safe driving due to alcohol consumption, seem
to the court to have been sufficient in law to permit the
factfinder to reasonably conclude beyond a reasonable doubt that
Defendant was driving in careless disregard for the safety of
persons or property. For all of the foregoing reasons, it is
believed that the evidence was sufficient to support the guilty
verdicts entered with regard to driving under the influence to a
degree rendering a person incapable of safe driving, driving under
suspension and careless driving.
SUPPRESSION MOTION
Basis for appeal. Defendant's appeal seeking dismissal of the
charge of driving under the influence while a person's BAC level is
.10% or greater is based upon an allegedly erroneous suppression
motion ruling by the court. In his statement of matters complained
of on appeal, Defendant expresses the issue as follows:
The conviction under Subsection (a)(4)
[of Section 3731 the Vehicle Code] should be
dismissed because the manner in which the
blood sample was obtained is violative of the
Pennsylvania Constitution, Article I, Section
8; in that the blood sample was obtained from
the Defendant without his consent, without a
Search Warrant, without the subpoenaing of the
medical records, and the blood was drawn not
as a part of the Defendant's general treatment
for injuries received, but specifically at the
direction of Trooper Glassmire, who was
present at the Hershey Medical Center and who
requested a nurse draw "legal blood" which was
later analyzed in support of the above-
referenced charges (Omnibus Pre-trial Motion
to Dismiss Hearing, February 28, 1996, p.
11.). At the time the blood was drawn, the
14
NO. 96-0017 CRIMINAL TERM
officer testified that Defendant was
"incoherent," and the officer attempted to
interview the Defendant but "was unable to get
an interview at that time" due to his medical
condition (Omnibus Pre-trial Motion to Dismiss
Hearing, February 28, 1996, p. 12.) For the
reasons set forth within this paragraph, and
generally for the reasons revealed in the
course of the Omnibus hearing and the trial,
the Defendant's Pennsylvania Constitutional
rights were violated by the taking of a blood
sample under the circumstances.47
Discussion. The merits of the Defendant's position that the
BAC test result should have been suppressed have been discussed in
an opinion of the court of even date herewith, and that opinion is
incorporated by reference herein. Two additional points may be
made with respect to Defendant's contention on appeal that the
charge in question should be dismissed because of the
inadmissibility of the challenged evidence.
First, to the extent that Defendant's request for dismissal of
the prosecution at this stage of the proceedings is premised upon
the belief that had the BAC test result been properly ruled
inadmissible the evidence at trial would have been insufficient to
sustain the verdict, the principle that "[t]he question of
sufficiency [may] not [be] assessed upon a diminished record" must
be invoked. Commonwealth v. Davis, 437 Pa. Super. 471, 475, 650
A.2d 452, 454 (1994).
47 Defendant's Concise Statement of Matters Complained of on
Appeal, paragraph 4(A).
15
NO. 96-0017 CRIMINAL TERM
Second, to the extent that Defendant's request for dismissal
is premised upon the belief that discharge of a defendant is an
available remedy where evidence has been seized illegally, the
principle that suppression rather than dismissal is the appropriate
remedy for an unconstitutional
Commonwealth v. Carter, 537 Pa.
denied, U.S. , 115 S. Ct.
(illegal arrest).
seizure must be cited. Cf.
233, 643 A.2d 61 (1994), cert.
1317, 131L. Ed. 2d 198 (1995)
CONCLUSION
For the foregoing reasons, it is believed that the evidence
was sufficient to support the verdicts of guilty of driving under
the influence of alcohol to a degree rendering Defendant incapable
of safe driving, driving under suspension and careless driving, and
that dismissal of the prosecution for driving under the influence
of alcohol while Defendant's blood alcohol content level was .10%
or greater was not required due to an incorrect suppression ruling.
Consequently, it is believed that the judgment of sentence in
Defendant's case was properly entered.
Thomas Placey, Esq.
Assistant District Attorney
Samuel W. Milkes, Esq.
Assistant Public Defender
16