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Home My WebLink AboutCP-21-CR-0003134-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : : : CP-21-CR-3134-2010 : v. : CHARGE: 3. DRIVING WHILE OPERATING : PRIVILEGE IS SUSPENDED OR : REVOKED (DUI - RELATED) LEE ALLEN KIMMEL : OTN: K946032-3 : AFFIANT: TPR. SCOTT MASCI IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a) EBERT, J., January 23, 2012 - A criminal complaint was filedagainst the Defendant on April 30, 2010, charging him with Driving Under the Influence, General Impairment, Trespass by Motor Vehicle, Driving While Operating Privilege is Suspended or Revoked (DUI-Related) (With Alcohol in System), Operation of a Vehicle without Official Certificate of Inspection, and Restriction on Alcoholic Beverages. The Commonwealth moved to dismiss Count 1, Driving Under the Influence, General Impairment on April 25, 2011. This motion was granted. Additionally, the Commonwealth moved to amend the information at Count 3, Driving While Operating Privilege is Suspended or Revoked, (DUI-Related) (With Alcohol in System) 75 Pa.C.S.A. §1543(b)(1.1)(i) so as to delete the charge relating to “with Alcohol in System” so that only Driving Under Suspension (DUI-Related) 75 Pa.C.S.A. §1543(b)(1) remained. A non-jury trial was held on August 4, 2011. At trial, the Court granted the Defendant’s Motion for Acquittal on Count 2, Trespass by Motor Vehicle, Count 4, Operation of Vehicle Without Official Certificate of Inspection and Count 5, Restriction on Alcoholic Beverage. The Defendant was convicted of Driving While Operating Privilege is Suspended or Revoked (DUI - 1 related) (“Count 3”). Defendant now appeals this conviction based on the following contention 2 listed in Defendant’s Concise Statements of Matters Complained of on Appeal as provided: 1. Whether the Commonwealth proved each and every element of the offense beyond a reasonable doubt. Background On December 28, 2008, at 8:58 A.M., Trooper Steven Nesbit received a call reporting a 3 male slumped over the steering wheel of a vehicle. Trooper Nesbit arrived at 114 Red Tank Road, South Middleton Township, Cumberland County but did not see the described vehicle, 4 however, he noticed fresh mud tracks on Petersburg Road leading from a “dirt muddy road.” Trooper Nesbit followed the mud tracks into a wooded area and discovered a Chevy pickup 5 truck. Trooper Nesbit approached the vehicle. The vehicle’s motor was running. A male, identified as the Defendant, was slumped over the steering wheel, a dog was in the passenger 6 seat, and empty beer cans were seen inside the vehicle. Trooper Nesbit tried to get the man’s 7 attention but received no response. Trooper Nesbit proceeded to open the door and turn off the 8 vehicle. Trooper Nesbit determined that the male was, in essence, passed out behind the steering 9 wheel due to the alcohol consumption. Trooper Scott Masci arrived at the accident scene sometime after the arrival of Trooper 1011 Nesbit. Trooper Masci noticed indicia of intoxication after he spoke with Defendant. Trooper Masci noticed a “strong odor of alcohol emanating from [Defendant], bloodshot, glassy eyes, 1 75 Pa.C.S. § 1543(b)(1). 2 Concise Statement of Matters Complained of on Appeal, filed January 10, 2012. 3 Transcript of Proceedings, Aug. 4, 2011, p. 4 (hereinafter T.P. ___). 4 T.P. 4-5. 5 T.P. 5-6. 6 T.P. 6. 7 T.P. 6. 8 T.P. 6 9 T.P. 6-7. 10 T.P. 10. 11 T.P. 11. 2 12 [and] slurred speech.” Upon questioning, Defendant handed Trooper Masci his Pennsylvania 13 identification card and told Trooper Masci that his license was suspended for DUI. Trooper 14 Masci later confirmed that Defendant’s license was suspended for DUI. Discussion I. Standard of Review The Superior Court’s “scope of review in a license suspension case is limited to determining whether the trial court’s findings are supported by competent evidence in the record, whether the trial court committed an error of law, and whether the court’s decision is a manifest abuse of discretion.” Commonwealth v. Herb, 852 A.2d 356, 360 (Pa. Super. 2004). Specifically, “[t]he standard [the Superior Court] appl[ies] in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact finder to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Vetrini, 734 A.2d 404, 406 (Pa. Super. 1999). The Court went on to state: In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence, Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Id. at 407. The Commonwealth’s burden of “proving every element of the crime beyond a reasonable doubt” can be achieved entirely through circumstantial evidence. Id. Additionally, “the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part, or none of the evidence.” Id. 12 T.P. 11. 13 T.P. 11. 14 T.P. 11-12; Commonwealth’s Exhibit 1. 3 II. 75 Pa.C.S.A. § 1543(b)(1) Defendant has been convicted of violating Section 1543(b)(1) of the Vehicle Code, which states: A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) or the former section 3731, because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3802 or former section 3731 or is suspended under section 1581 (relating to Driver's License Compact) for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days. 75 Pa.C.S.A. § 1543(b)(1) (West 2011). Additionally, “in order to sustain a conviction under 75 Pa.C.S.A. § 1543(b)(1), the Commonwealth must prove that the defendant had actual notice that his license had been suspended or revoked.” Vetrini, 734 A.2d at 407. In the case sub judice, this Court finds all elements of Section 1543(b)(1) have been proven beyond a reasonable doubt in Defendant’s conviction. Defendant unpersuasively claims that no violation of Section 1543(b)(1) occurred because his vehicle was never driven on a public highway or trafficway. Defendant does not dispute that he was driving his vehicle. It is clear from the record that the Defendant knew he was under suspension. The Defendant told Trooper Masci about his DUI related driving suspension. Trooper Masci later confirmed Defendant’s suspension by obtaining his certified driving history through PennDot. This Court finds the credible testimony of Trooper Nesbit proved beyond a reasonable doubt that Defendant had driven on a highway or trafficway. The evidence of muddy tracks leading directly from Red Tank Road, a public highway, precisely to Defendant’s vehicle circumstantially established that Defendant had driven his motor vehicle 4 on a Commonwealth highway or trafficway just prior to hitting the rock which disabled his vehicle. “The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Vetrini, 734 A.2d at 407. Given the level of the Defendant’s intoxication and the fact that he admitted that he drove the vehicle in such a way that his “tire and wheel hit a rock…and busted my transaxle, which 15 made the vehicle inoperable and knocked the tires off the rims,” proves that he was intoxicated not only when he hit the rock but also at the time he was driving on the public roadway. Trooper Nesbit followed the muddy tracks that led to Defendant’s vehicle and approached an inoperable, but running vehicle with Defendant slumped over the steering wheel. This Court finds that the level of the Defendant’s intoxication, given the fact that he was passed out behind the wheel of a running vehicle, established that the Defendant had no idea where he was prior to hitting the rock. Accordingly his testimony that he never drove on Red Tank Road is found to be totally incredible. There is no reasonable doubt. This Defendant drove on a public roadway just prior to wrecking his truck. 15 T.P. 20 5 Conclusion For all the reasons above, Defendant was convicted under Section 1543(b)(1), Driving While Operating Privilege is Suspended or Revoked (DUI - Related) for violation of all elements of the criminal statute beyond a reasonable doubt. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Vincent Monfredo, Esquire Attorney for Defendant 6