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HomeMy WebLinkAbout95-2123 CriminalCOMMONWEALTH V® WILLIAM H. TRITT, JR. OTN: E200556-6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-2123 CRIMINAL TERM CHARGE: DRIVING UNDER THE INFLUENCE IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., December 18, 1996. In this criminal case involving a charge of driving under the influence of a controlled substance, Defendant has appealed to the Superior Court from the judgment of sentence following a bench trial and guilty verdict. The basis for the appeal is that "[t]he evidence was not sufficient to find beyond a reasonable doubt that Defendant was under the influence of marijuana to a degree that rendered him incapable of safe driving."~ This opinion in support of the judgment of sentence is written pursuant to P~nnsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On Saturday, April 29, 1995, at approximately 10:15 p.m., a licensed practical nurse from Shippensburg, Pennsylvania, named Luanne VanScyoc was driving north toward Carlisle, Pennsylvania, where she worked, on a two-lane highway known as the Walnut Bottom Road.2 Ms. VanScyoc noticed that the vehicle directly in front of her was weaving and swerving.3 ~ Defendant's Concise Statement of Matters Complained of on Appeal, filed December 10, 1996. N.T. 6-8, 10, Trial, __). October 7, 1996 (hereinafter N.T. 3 N.T. 7-8, 10, 14, 18. NO. 95-2123 CRIMINAL TERM After observing this erratic driving for a distance of about a half mile,4 Ms. VanScyoc utilized a two-way radio in her car to notify her husband, Sergeant Robert VanScyoc of the Mid Cumberland Valley Regional Police Department, of the matter.5 She continued to keep Sergeant VanScyoc advised of her location as she followed the vehicle toward Carlisle.~ Over the course of several miles,? Ms. VanScyoc observed the vehicle, which was traveling at 45-50 miles per hour,8 cross the center line at least four times, once on the crest of a hill, and travel onto the berm of the highway at least four times.9 Her testimony included these descriptions: Q When you say he was going to the left or the right, how much of his car was goih~ over these lines in the other direction, if you can recall? A If I can recall, probably between a quarter and a half of the vehicle was either over the center line or off the berm of the road. ~0 N.T. 16. N.T. 9. Id. N.T. 10, 13-14, 17, 66. N.T. 14. N.T. 18. N.T. 10. 2 NO. 95-2123 CRIMINAL TERM Q What happened on [the] hill? A Well, we were just going down the road, and we were approaching the crest of the hill, and I observed the vehicle, and he was over the center line. His car was at least halfway over that center line. The car was like straddling the center line. Q Is this a hill that you could see what was on the other side or was there a slight - or was there a sight blockage? A It was a steep hill. You couldn't -- you had to stay on your side of the road. If there would have been an oncoming car --~ The vehicle which Ms. VanScyoc reported and was following was stopped by police at 10:28 p.m. on the Walnut Bottom Road at the edge of Carlisle.~2 Defendant was the driver.~3 Defendant's eyes were reddish and watery; he presented "a general over ~11 appearance that he may have been intoxicated," according to a police witness.~4 When the vehicle was stopped, neither Ms. VanScyoc nor the police were aware that Defendant, who 11 12 14 N.T. 41, 44. N.T. 11. N.T. 36-37, 40. N.T. 37, 67. N.T. 37 (testimony of Sergeant Robert VanScyoc); see also 3 NO. 95-2123 CRIMINAL TERM had had two fatal accidents in the past,~5 was the driver.~6 Defendant was placed under arrest for driving under the influence by a Carlisle Borough police officer.~7 A sample of his blood was drawn at 11:00 p.m.~8 An analysis of the sample revealed the presence of sixteen nanograms of ll_Nor-delta-9-tetrahydroc~nnabinol-9-carboxylic acid (THC acid) per milliliter, and five nanograms of ll-Nor-delta-9- tetrahydrocannabinol (THC) per milliliter.~9 The latter substance is the principal active ingredient of marijuana-2° No measurable part of alcohol was found in the sample.2~ According to toxicologist Theodore S. Siek, a laboratory director in Feasterville, Pennsylvania,22 such a concentration of THC is "high ... relative to all the other ones we find" and "quite N.T. 63. N.T. 12, 37. The vehicle was not registered in-Defendant's name. 37, 62. 17 18 19 20 21 N.T. 41. Id. N.T. 25; Commonwealth's Exhibit 1. N.T. 25. N.T. 32. N.T. 19. The former substance is a metabolite. 4 N.T. 26. NO. 95-2123 CRIMINAL TERM unusual."23 In terms of the effect of this amount of THC in the blood, Dr. Siek testified as follows: Q What would be the effect of having this concentration of THC in a person's system? What would be the effects on that person? A Well, the main thing would be the loss of mental sharpness and the tendency to drift off into a dreamlike state and to not be able to pay attention to what you're doing and to disregard what's going on about you, because you're kind of in your own little world, and in this state you don't care that much what's going on. So it does impair your tracking ability. It impairs your ability to keep focused on the job of driving. Q What effect would this level have on motor skill coordination? A Well, it would be impaired, and the main thing that I believe in this situation is that your ability to concentrate on your job is just diminished very substantially-24 Toxicologist G. Thomas Passananti of the Hershey Medical Center25 testified that a person having the aforesaid concentration of THC in his blood "would have the signs of overt drunkenness-"26 Dr. Passananti testified as follows: ... Marijuana has the same effect on the human body, the central nervous system, that alcohol has, judgment, perception, reaction N.T. 27. N.T. 28-29. N.T. 44-46. N.T. 49. 5 NO. 95-2123 CRIMINAL TERM time, visual acuity, tracking. It impairs tracking twice the amount that alcohol does, and, of course, it has to do -- in other words, the processes of retrieval and integration of information, okay, are always obliterated with marijuana. Marijuana is a soporific. It induces central nervous system depression and sleep. Q Would a person who has this level be falling down? A No, he would not necessarily be falling down, but he certainly would be impaired with regard to the safe operation of a motor vehicle. Herbert Moskowitz at the University of California made some statements that people are impaired after smoking one marijuana cigarette, and even if marijuana is not found in the blood, that does not mean that marijuana was not the cause of that accident.27 On the subject of dissipation of THC from the blood, Dr. Passananti tewtified as follows: Q Now what is the dissipation rate of marijuana? A Marijuana dissipates very, very quickly. In other words, it's sequestered into the fat. I'll give you a pharmacological term here. It has apparent volume of distribution of 10 liters per kilogram, which means it leaves the blood immediately, as Dr. $iek said, and enters the brain and spinal column. Okay. Now what happens is this: As Dr. Siek said, the marijuana spikes very, very rapidly. Before you finish smoking a marijuana cigarette, the blood level is already falling. And after two or three hours, it's almost immeasurable. The five nanograms per milliliter that you mentioned 27 N.T. 50. 6 NO. 95-2123 CRIMINAL TERM indicates recent smoking. And remember, half hour prior to the five nanograms, his blood alcohol - his blood marijuana level was much higher.2" One of the signs of a high dose of marijuana, according to Dr. Passananti, is "watering of the eyes.''29 The court, in its capacity as trier of fact, found the testimony of Dr. Siek and Dr~ Passananti to be credible. Defendant presented the testimony of a passenger in his vehicle on the night in question, who responded, "Not to my recollection," to a question as to whether Defendant had smoked anything that he believed might have been marijuana.TM The passenger attributed the vehicle's deviations in course to the fact that "it had a bent wheel on it, and the outer tire rod was bent.''3~ There was no Suggestion that the witness was a mechanic, however, nor was he apparently familiar enough with the car to know the last name of its owner.32 N.T. 50-51. N.T. 52. N.T. 58. N.T. 59. N.T. 62. 7 NO. 95-2123 CRIMINAL TERM Defendant testified and stated that no marijuana had been smoked "in the car.''33 His most recent use of marijuana, he stated, had been two or three days before.34 Defendant conceded that the vehicle he was driving "pulled off the road a few times," although not to the degree suggested by Ms. VanScyoc.3s He attributed the vehicle's lateral motions to a right, front bent tie rod, which caused the vehicle to "pull both ways.''36 No physical evidence was presented on this subject. Based upon the evidence presented, 'the court found Defendant guilty of driving under the influence of a controlled substance (marijuana) in violation of Section 3731(a)(2) of the Vehicle Code.~7 On November 12, 1996, Defendant was sentenced to undergo a period of imprisonment of not less than 30 days nor more than 24 months and to pay a fine of $300.00, said prison sentence to run consecutive involuntary incident.~B to state sentences for vehicular homicide and manslaughter arising out of a previous driving N.T. 66-67. N.T. 68. N.T. 70. Id. N.T. 74-75; Order of Court, October 7, 1996. Order of Court, November 12, 1996; see N.T. 77. 8 NO. 95-2123 CRIMINAL TERM DISCUSSION "The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Jones, Pa. Super. , , 672 A.2d 1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). "[I]t is within the province of the fact finder to dete~,~ne the weight to be given to the testimony and to believe all, part, or none of the evidence." Commonwealth v. Baskerville, Pa. Super.. , , A.2d , 1996 WL 437648 (1996). The crime of operating a vehicle while under the influence of a controlled substance requires that the Commonwealth prove two elements beyond a reasonable doubt: (1) that defendant was driving, operating, or in actual physical control of a vehicle, and (2) that at that time he was under the influence of a controlled substance to a degree which rendered him incapable of safe driving. Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a)(2); cf. Commonwealth v. Byers, 437 Pa. Super. 502, 505, 650 A.2d 468, 469 (1994); Commonwealth v. Morris, 28 Pa. D. & C.3d 83, 85 (Delaware Co. 1982). NO. 95-2123 CRIMINAL TERM In the present case, it is not disputed that Defendant was driving a vehicle. Marijuana (and any substance containing tetrahydracannabinols) is a controlled substance. Act of April 14, 1972, P.L. 233, §4(1)(iii)(16), (iv), as amended, 35 P.S. §780- 104(1)(iii)(16), (iv). The erratic and dangerous driving of Defendant over a course of several miles, the presence of an unusually high level of THC in a sample of his blood drawn 32 minutes after the vehicle stop, his appearance at thescene, and expert testimony as to the anticipated effects of such a drug concentration as well as the rapid dissipation rate associated with marijuana, combined with the absence of a credible alternative explanation for Defendant's operating cond. uct,39 tended to support a reasonable conclusion that Defendant was under the influence of the controlled substance to a degree that rendered him incapable of safe driving at the time he was driving. For these reasons it is believed that the evidence was sufficient to sustain the verdict, and that the judgment of sentence was properly entered. Thomas A. Placey, Esq. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender 39 In this regard, the court in its capacity as factfinder did not find plausible Defendant's contention that mechanical problems were responsible for the vehicle's erratic operation. 10