HomeMy WebLinkAboutCP-21-CR-0002583-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-2583-2010
V. :
: CHARGE: 1. DRIVING UNDER THE
ST
: INFLUENCE, GENERAL IMPAIRMENT (1)
: 2. DRIVING UNDER THE INFLUENCE,
ST
: HIGH RATE OF ALCOHOL (.10-.16%) (1)
:
RUTH ANN FREELAND :
OTN: L563747-2 : AFFIANT: PTL. JOSEPH DOWS
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
Ebert, Jr., J., February 24, 2012 -
The Defendant was convicted of Driving Under the Influence, General
Impairment, 75 Pa.C.S.A. §3802(a) and Driving Under the Influence, High Rate, 75
Pa.C.S.A. §3802(c) after a non-jury trial on November 4, 2011. The Defendant was
sentenced on January 17, 2012, at Count 2 – Driving Under the Influence, High Rate to
pay the costs of prosecution, a fine of $500.00 and to undergo imprisonment in the
Cumberland County Prison for not less than 48 hours nor more than 6 months. This
was a standard range, mandatory sentence. For the purposes of sentencing, Count 1
merged with Count 2 and no additional sentence was ordered.
Defendant filed a post-sentence motion on January 17, 2012, which was denied
by Order of Court dated January 18, 2012. The Defendant filed a Notice of Appeal to
the Superior Court of Pennsylvania on January 25, 2012, with a corrected Notice filed
January 30, 2012. The Concise Statement of Matters Complained of on Appeal was
filed on February 6, 2012. The Statement raises the following issues:
a. The trial court erred in denying Appellant’s Motion
for Suppression of Evidence regarding the alleged
illegal traffic stop of her vehicle as the
officer was without probable cause or reasonable
suspicion to believe a violation had been committed.
b. The trial court erred in admitting evidence of
Appellant’s alleged blood alcohol concentration
where the Commonwealth failed to present testimony
that the conversion factor utilized to convert the
plasma alcohol analysis to a correlative whole blood
result was one that was generally accepted in the
scientific community.
c. The trial court erred in finding the Appellant guilty
of 75 Pa.C.S.A. §3802(b) because said verdict was
against the weight of the evidence.
FINDINGS OF FACT
After consideration of the testimony presented at trial and the exhibits placed into
evidence by the Commonwealth, this Court makes the following Findings of Fact:
1. On June 6, 2010, Ptl. Joseph W. Dows, a 25 year veteran of the Silver Spring
Township Police Department was on duty at approximately 2:00 a.m.
2. Ptl. Dows has made approximately 300 Driving Under the Influence arrests
and as a police officer regularly observes people who are intoxicated.
3. Ptl. Dows is trained in conducting Standard Field Sobriety Tests.
4. While traveling towards Mechanicsburg in his patrol vehicle on Hogestown
Road (Pa. Route 114), Ptl. Dows observed the Defendant weaving in her lane of travel.
Defendant was observed going over the fog line and then making an abrupt jerking type
motion back into her lane of travel, going toward the center yellow line where she would
again abruptly turn back into her lane.
5. Ptl. Dows saw the Defendant cross the white fog line on 2 separate occasions
such that the right tires of Defendant’s car went halfway onto the shoulder of the road.
2
The shoulder of this state road is wide enough for a car to park upon it without being in
the lane of travel.
6. After making these observations, Ptl. Dows had reasonable suspicion that the
Defendant was Driving Under the Influence of Alcohol and conducted a vehicle stop in
the 300 block of the Hogestown Road.
7. Upon coming in contact with the Defendant, Ptl. Dows made the following
observations: (1) Defendant had trouble finding her driver’s license, (2) the smell of
alcohol was coming from the Defendant as she talked, (3) Defendant was unusually
talkative, (4) the Defendant’s eyes were bloodshot, (5) a bottle of rum was sitting on the
floorboard on the passenger side of the Defendant’s vehicle, and (6) the Defendant had
somewhat slurred speech.
8. The time was approximately 2:00 a.m. and the Defendant told Ptl. Dows that
she had been at a party at her friend’s house.
9. Ptl. Dows had the Defendant perform standard field sobriety tests. The
Defendant did the walk and turn test and the one legged stand test. Ptl. Dows observed
signs of intoxication exhibited by Defendant during the tests.
10. Ptl. Dows’ opinion as an experienced police officer was that the Defendant
was under the influence of alcohol to the extent that rendered her incapable of safe
driving.
11. The Defendant was placed under arrest and transported to the Cumberland
County Prison Booking Center.
12. At the Cumberland County Prison Booking Center, Phlebotomist, Julie
Reifsteck drew a sample of the Defendant’s blood at 0240 hours on June 6, 2010.
3
13. The blood was submitted to the Cumberland County Bureau of Justice
Services Laboratory for analysis. This Laboratory is a certified blood testing facility.
14. The Defendant’s blood sample was analyzed by Carol McCandless, a
medical laboratory technician and a registered nurse. Carol McCandless was
recognized as an expert in the field of blood alcohol testing.
15. McCandless performed a blood plasma analysis on the Defendant’s blood
sample. McCandless used a scientifically accepted procedure to determine the range
of alcohol concentration in the whole blood of the Defendant. McCandless used the
accepted ratios of 1.05/1 to 1.25/1.
16. After performing the analysis, McCandless found that the Defendant’s ethyl
alcohol value in her whole blood was 0.137 percent.
17. This Court finds the testimony of all of the Commonwealth witnesses to be
totally credible.
18. Within two hours of the Defendant’s actual driving on Hogestown Road (PA
Route 114) the alcohol concentration in the Defendant’s whole blood was 0.137
percent.
DISCUSSION
A. LEGALITY OF THE STOP
Police officers in Pennsylvania are permitted to effectuate a stop if they have
reasonable suspicion that a violation of the motor vehicle code is occurring or has
12
occurred. Prior to 2004, Courts had held that officers were required to have probable
cause of a violation before effectuating a stop. This was a high burden. However, the
75 Pa.C.S.A. §6308 (b).
1
Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002).
2
4
language of 75 Pa. C.S.A. §6308(b) was amended from “articulable and reasonable
3
grounds” to “reasonable suspicion” effective February 1, 2004. This change reflected
the legislature’s concerns about injuries caused by drunk driving and subsequently
4
created a lower burden for officers when making investigatory stops.
When determining reasonable suspicion, innocent facts can combine under the
5
totality of the circumstances to meet the burden. Additionally, officers are required to
give “specific observations which in conjunction with reasonable inferences derived from
those observations, led [them] reasonably to conclude, in light of his [or her] experience
6
that criminal activity was afoot.” Ptl. Dows has over 25 years’ experience as a police
officer and has made approximately 300 Driving Under the Influence arrests. Given this
experience, after following the Defendant’s vehicle for approximately ½ mile, Ptl. Dows
observed the Defendant crossing the fog line on two occasions such that the right tire of
her automobile went halfway onto the shoulder of the roadway which is wide enough for
a car to park upon it without being in the lane of travel. (Notes of Testimony –
Suppression Hearing, July 7, 2011, p. 9, 11). He then observed that the car “came back
in an abrupt manner.” Based on these observations and given his experience he had a
reasonable belief that “the person may be driving under the influence of alcohol” (N.T. –
Suppression Hearing, July 7, 2011, p. 13).
As noted in Commonwealth v. Feczko, 10 A.3d 1285, 1289 “the legislature’s
intent was to permit officers who suspect that an operator of a vehicle has committed a
Pennsylvania 2003 Legislative Service, Act No. 2003-24, Approved Sept. 30, 2003.
3
Commonwealth v. Sands, 887 A.2d 261, 271 (PA. Super. 2005).
4
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006) (quoting Commonwealth v.
5
Cook, 735 A.2d 673, at 676 (1999)).
Commonwealth v. Reppert, 814 A.2d 1196, 1204 (Pa. Super., 2002) (citing Commonwealth v.
6
Cook, 735 A.2d 673, at 677 (1999)).
5
serious offense, such as DUI… to stop the vehicle based upon reasonable suspicion
rather than the heightened standard of probable cause.” The Feczko Court recognized
“the investigative potential of a vehicle stop based on a reasonable suspicion of DUI.”
The Court stated that “a suspected violation for DUI is in fact a scenario where further
investigation almost invariably leads to the most incriminating type of evidence, i.e.
strong odor of alcohol, slurred speech, and bloodshot eyes. This type of evidence can
only be obtained by a stop and investigation.” Id. at 1289.
Clearly, what Ptl. Dows saw was more than what the Defendant continues to
characterize as simply “weaving within the lane of travel” (Defendant’s Memorandum in
Support of Omnibus Pre-Trial Motion, p. 4). Ptl. Dows had reasonable suspicion that
the Defendant was Driving Under the Influence of Alcohol and made an appropriate
investigatory stop. That stop was lawful.
B. BLOOD TEST
Defendant asserts that her blood alcohol test should not have been admitted into
evidence and considered by this Court. The Defendant claims that the conversion
factor used by the Commonwealth to convert a serum blood alcohol analysis into a
whole blood alcohol analysis was not generally accepted in the scientific community.
Defendants charged with Driving Under the Influence regularly contest the
propriety of the conversion factors used by the Commonwealth at trial. As the Court
noted in Commonwealth v. Kohlie, 811 A.2d 1010, 1015 “the Commonwealth may apply
different conversion factors in different cases, as long as they are generally accepted
within the scientific community.
6
In this case, Carol McCandless testified for the Commonwealth as an expert in
the field of blood alcohol testing. She tested the Defendant’s blood samples at the
Cumberland County Bureau of Justice Services Laboratory which is a certified blood
testing facility in Pennsylvania. The expert testified that a plasma analysis was
performed. (Commonwealth Exhibit #4). She has been testing blood for over 20 years.
The result of her test of the Defendant’s plasma specimen revealed a .0171 percent.
After obtaining the plasma blood alcohol percentage, the witness testified that
she converted the percentage to whole blood value by use of a calculation supplied by
Dr. Shoemaker who is the director of the Cumberland County Bureau of Justice
Services Laboratory. An examination of Commonwealth Exhibit 4 clearly and precisely
outlines the scientifically accepted procedure for determining whole blood alcohol
concentrations from an analysis of blood plasma. The witness testified that for trial
purposes the low equivalent value is used which in this case was 0.137 percent. This
value is determined by dividing the plasma level by the conversion factor of 1.25. The
expert witness clearly indicated that this was an accepted scientific method and that it
was approved by the Department of Laboratories. In this case then, as noted in
Commonwealth v. Newsome, 787 A.2d 1045, 1045, this Court, as the trier of fact, was
presented with evidence of the conversion factor used by the expert to convert the
plasma level to whole blood.
This Court found the expert witness’ testimony completely credible and accurate.
As noted by the Court in Commonwealth v. Kohlie, 811 A.2d 1010, 1016 the Defendant
had the opportunity to challenge the scientific validity of the conversion factor by use of
cross examination or by calling his own rebuttal witness. The Defendant’s cross
7
examination of the expert witness did not in any way impugn the witness’ expert opinion
based on her analysis that the Defendant’s whole blood alcohol percentage was .137
percent.
C. SUFFICIENCY OF THE EVIDENCE
On a challenge to the sufficiency of the evidence, the law is well settled. All the
evidence and all reasonable inferences drawn therefrom must be viewed in the light
most favorable to the Commonwealth as the verdict winner. Commonwealth v. Weir,
738 A.2d 467 (Pa. Super. 1999). Evidence will be deemed to support the verdict when
it establishes each element of the crime charged and the commission thereof by the
accused beyond a reasonable doubt. The Commonwealth need not preclude every
possibility of innocence or establish the Defendant’s guilt to a mathematical certainty.
The trier of fact, while passingupon the credibility of the witnesses and weight of
the evidence produced, is free to believe all, part, or none of the evidence.
Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), Commonwealth v.
Brotherson, 888 A.2d 901 (Pa. Super. 2005). As is true in all criminal cases, in Driving
Under the Influence of Alcohol related prosecutions, the Commonwealth can prove any
element of an offense by use of wholly circumstantial evidence. Id.
The statute at issue provides as follows:
§3802. Driving Under the Influence of Alcohol
or Controlled Substance
(a) General Impairment.--
(1) An 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 safe driving, operating, or being
8
in actual control of the movement of the vehicle.
(b) High rate of alcohol. –
An 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.
1. Incapable of Safe Driving
Accordingly, on the charge of Driving Under the Influence - General Impairment -
Incapable of Safe Driving, the Commonwealth had to prove the following elements
beyond a reasonable doubt:
First, that the Defendant drove, operated or was in
actual physical control of the movement of a vehicle
upon a highway or trafficway.
Second, while the Defendant drove, operated or was in
physical control of the vehicle, she had imbibed
sufficient amount of alcohol such that she was
incapable of safe driving, operating, or being in actual
physical control of the movement of the vehicle.
Pa. SSJI (Crim) 17.3802 (a) (1)
With regard to this charge, the Defendant’s argument has consistently
been that the Commonwealth presented no evidence that her driving constituted a
“safety hazard.” In fact, Defendant maintains that she was clearly not a safety hazard.
(see Defendant’s Memorandum in Support of Omnibus Pre-Trial Motion, filed July 14,
2011, p. 4). However, the evidence and all the reasonable inferences drawn therefrom
must be viewed in the light most favorable to the Commonwealth as the verdict winner.
9
As is often stated, “Under Pennsylvania law, the phrase “incapable of safe driving” has
a precise legal meaning. The Defendant need not have been drunk or severely
intoxicated or driving wildly or erratically in order to commit this crime. It is enough if the
alcohol has substantially impaired the Defendant’s normal mental or physical faculties
that were essential to safe operation of his vehicle. Thus, when deciding whether the
Commonwealth has met its burden of proof, [The fact finder might ask itself], “Were the
Defendant’s thinking, judgment, physical skills, ability to perceive and react to changes
in the situation or other faculties impaired?” Pa.SSJI 17.3802(a) (1)
The evidence at trial established beyond a reasonable doubt the following:
1. The Defendant was driving a motor vehicle.
2. The Defendant was weaving in her lane of travel.
3. The Defendant crossed the white fog line on two separate occasions such
that her right tires went halfway onto the shoulder of the road. The shoulder
of this state road is wide enough for a car to park upon it without being in the
lane of travel.
4. The Defendant was driving home at 2:00 a.m. from a friend’s party.
5. The Defendant smelled of alcohol.
6. The Defendant failed the field sobriety tests.
7. The Defendant was unusually talkative, had somewhat slurred speech,
bloodshot eyes, and a bottle of rum sitting on the floorboard of her car.
8. Ptl. Dows, a very experienced officer, was of the opinion that the Defendant
was under the influence of alcohol which rendered her incapable of safe
driving.
10
9. The Defendant’s blood alcohol content was tested within two hours of
driving, and the alcohol concentration in her whole blood was 0.137 percent.
These factors are clearly indicative of a person whose motor skills are impaired
by having ingested alcohol. The failure to control one’s motor skills circumstantially
establishes that the person cannot drive safely. Generally speaking, to establish the
second element of the offense as defined above, it must be shown that the alcohol
imbibed substantially impaired the normal mental and physical faculties required to
safely operate a vehicle. Substantial impairment in this context means a diminution or
enfeeblement in the ability to exercise judgment to deliberate or to react prudently to
changing circumstances and conditions. Evidence that the driver was not in control of
herself, such as failing to pass a field sobriety test, may establish this element even in
cases where there is no evidence of erratic or unsafe driving. Commonwealth v. Smith,
831 A.2d 636 (Pa. Super. 2003) citing Commonwealth v. Palmer, 751 A.2d 223 (Pa.
Super. 2000).
Viewing all the evidence in the light most favorable to the Commonwealth, it is
clear beyond any reasonable doubt that the Defendant was guilty of the offense of
Driving Under the Influence of Alcohol – General Impairment.
2. Alcohol Concentration – High Rate
Turning to the charge of Driving Under the Influence – High Rate, the
Commonwealth must prove the following three elements beyond a reasonable doubt:
First, that the Defendant imbibed alcohol;
Second, that the Defendant then drove, operated
or was in actual physical control of the movement
of a vehicle upon a highway or trafficway;
11
and Third, that within two hours after driving,
operation or actual physical control, the alcohol
concentration in the Defendant’s blood or breath
was from .10% to 0.15%.
Pa.SSJI (Crim) 17.3802(a) (2)
“A true weight of evidence challenge concedes that sufficient evidence exists to
sustain the verdict but questions which evidence is to be believed.” Commonwealth v.
Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). In this case, it is clear that the
Defendant imbibed alcohol. The Defendant does not challenge the fact that the level of
ethyl alcohol in her blood plasma was 0.171 percent. She had been at a party just prior
to being stopped, smelled of alcohol, exhibited the classic signs of alcohol intoxication,
failed the field sobriety tests, and had a bottle of rum on the floorboard of her vehicle.
In regard to the second element, there is no doubt whatsoever that she was driving the
vehicle when Ptl. Dows stopped her car. It was 2:00 a.m. in the morning and there was
absolutely no one else in the car.
Finally we turn to the third element. Was the Defendant’s blood alcohol
concentration higher than .10 percent within two hours of her actual driving? On this
element, the Defendant challenges the Commonwealth’s evidence shown in
Commonwealth Exhibit #4 and the testimony of the Commonwealth’s expert, Carol
McCandless. The Defendant relies on the words in Commonwealth’s Exhibit #4 that “it
is not possible to make a direct conversion” from plasma analysis to whole blood and
that the Commonwealth’s expert was ignorant as to her knowledge of “conversion
factors.” (Defense Post Sentencing Motion, filed January 17, 2012, Exhibit A, page 5).
12
Defendant’s position totally ignores the generally accepted practices in the
scientific community for analyzing ethyl alcohol percentages using plasma analysis.
Commonwealth Exhibit #4 specifically cites a consensus guideline published by the
National Committee for Clinical Laboratories Standards. In stating her opinion that the
alcohol concentration in the Defendant’s blood sample was 0.137 percent, the
Commonwealth expert stated that she used the blood concentration ratio of 1.25/1 to
determine the low equivalent value for the Defendant’s whole blood.
This Court has a long history of dealing with plasma analysis. Without question,
the Courts of Pennsylvania have routinely recognized the use of conversion factors in
calculating a range of potential blood alcohol levels in whole blood from plasma tests.
Interestingly, the Appellate Courts of this state have upheld convictions using various
different conversion rates used for plasma analysis. See, e.g., Commonwealth v.
Dagnon, 605 A.2d 360 (Pa. Super. 1992) conversion factor 1.18; Commonwealth v.
Michuck, 686 A.2d 403 (Pa. Super. 1996) conversion factor 1.18; Commonwealth v.
Newsome, 787 A.2d 1045 (Pa. Super. 2001) conversion factor 1.35. The use of any of
these accepted conversion factors would still place the Defendant’s whole blood alcohol
concentration in this case well above .10 percent. The conversion factor 1.25 which
was used in this case is approximately midway between the above previously accepted
conversion factors.
Courts have determined that conversion evidence is acceptable to sustain a
conviction for Driving Under the Influence so long as the jury is provided with clear
evidence which converts the serum result to a whole blood equivalent equal to or
greater than .10 percent. This Court as the fact finder found the Commonwealth’s
13
expert witness’ testimony to be credible and based on clearly accepted scientific
principles which were outlined in Commonwealth’s Exhibit #4. Based on this evidence,
this Court found that the Defendant’s blood alcohol concentration within two hours of
her actual driving was 0.137 percent. The Defendant did not present any rebuttal expert
testimony challenging the Commonwealth’s expert. Additionally, this Court did not find
the Commonwealth’s expert to be “ignorant” in regard to her knowledge of the use of
conversion factors. Again, the trier of fact, while passing upon the credibility of
witnesses and weight of the evidence produced, is free to believe all, part or none of the
evidence. Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), Commonwealth
v. Brotherson, 888 A.2d 901 (Pa. Super. 2005).
As is often stated in sufficiency of the evidence claims, a verdict is only against
the weight of evidence if it is so contrary to the evidence that it shocks one’s sense of
justice. Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006). When
viewing this case as a whole, the verdict does not shock anyone’s sense of justice.
By the Court,
M. L. Ebert, Jr., J.
Daniel J. Sodus, Esquire
Senior Assistant District Attorney
David M. Hoover, Esquire
Attorney for Defendant
bas
14