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HomeMy WebLinkAbout94-0965 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : STEPHEN RAY FLEMING : OTN: E57170-4 : NO. 94-0965 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., April 7, 1995 In this criminal case, Defendant has appealed to the Superior Court from a judgment of sentence imposed by the writer of this Opinion on charges of driving under the influence~ and endangering the welfare of a child.2 The basis of the appeal is that the evidence was insufficient to sustain the convictions.3 This Opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As the result of an episode~in the Borough of Shippensburg, Cumberland County, Pennsylvania, in June of 1994, Defendant was charged with recklessly endangering the welfare of a child, recklessly endangering another person, simple assault, driving under the influence, summary harassment, and failure to wear a seatbelt. A nonjury trial was held before the writer of this Opinion on December 30, 1994. The Commonwealth's evidence at trial was to the effect that on ~ See Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. ~3731 (1994 Supp.). 2 See Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4304 (1994 Supp). 3 Concise Statement of Matters Complained of on Appeal, filed March 28, 1995. 94-0965 CRIMINAL TERM the evening of Friday, June 2, 1994, Defendant, his live-in female companion, and two children, aged about three and five, drove to the Burd Street fairgrounds in Shippensburg, Cumberland County, Pennsylvania.4 Defendant initially went to a bar, but eventually rejoined them at the fair.s At about 9:30 p.m., Defendant was observed by a carnival ride employee arguing with and then striking his companion.6 The argument appeared to be over a carnival ride which one of the children was on.7 The reaction of the woman to being struck was to grab her face and begin crying.8 The carnival ride employee, Jack Wetzel, a 20-year-old resident of Chambersburg, Franklin County, Pennsylvania, confronted Defendant and remonstrated against his behavior.9 Defendant retorted that it "was none of [his] business.''~° Mr. Wetzel noticed 4 N.T. 10, 14, 18-19, Trial Transcript, December 30, 1994 (hereinafter N.T. __). N.T. 19. N.T. 5-6, 10, 19. N.T. 6, 18-20. N.T. 7. N.T. 7. N.T. 7. 2 94-0965 CRIMINAL TERM that Defendant's eyes "were real glassy."~ He noted further that "you could smell alcohol and stuff on his breath.''~2 Defendant got into his car, with the children in the back seat, unsecured by seat belts, and drove off.~3 His companion, who had anticipated departing with him and her children, ran down the road after him.TM The Mid-Cumberland Valley Regional Police Department was called at 9:41 p.m. about the incident,~$ and officers responding to the scene obtained a description, license number and direction of travel of Defendant's vehicle.~6 They were unsuccessful, however, in locating either Defendant or his companion.~? A few minutes later Mr. Wetzel saw that Defendant had driven back to the scene, and he and several others surrounded his vehicle while police were again called, at 9:50 p.m.~8 Upon arrival, police found Defendant in the driver's seat with the motor running and the N.T. 8. N.T. 8. N.T. 8. ~4 N.T. 8-9. It appears from the testimony that the companion was the mother of both children. N.T. 20. ~5 N.T. 13. ~6 N.T. 12. ~7 N.T. 12. ~8 N.T. 8-9, 12-13. 3 94-0965 CRIMINAL TERM children still unsecured in the back seat.~9 Two officers approached the car and asked Defendant to step out of the vehicle.2° He staggered slightly as he did so, his eyes were glassy and bloodshot, he seemed confused, his breath contained a strong odor of an alcoholic beverage, and he appeared intoxicated.2~ He was placed under arrest and transported to the police station for a breathalyzer test.~2 At the police station, Defendant said that he had been drinking Busch beer.~3 A breathalyzer test administered at 10:36 p.m. to determine the alcohol content of his blood by weight yielded a result of .191%.24 Following the Commonwealth · s case-in-chief, Defendant testified in his own defense. He attributed the argument with his companion to an attempt by him to remove his son from a carnival ride because the child was afraid. 2~ He conceded on cross- examination that he had been driving as the prosecution alleged, but appeared to rest his defense on the proposition that he had not ~9 N.T. 13-14. 20 N.T. 15. ~ N.T. 15, 24. ~2 N.T. 15. ~3 N.T. 28. 24 N.T. 4. 2~ N.T. 31. 4 94-0965 CRIMINAL TERM been seen: Q You drove to the fair. Correct? A Correct. Q You drove away from the fair. Correct? A Correct. Q And then you drove back to the fair. Correct? A Correct. Q And then that's when the police? A Yeah. Well, that ain't when the police came. There's three people -- that guy and two others came across the street 10 or 15 minutes later, when I arrived back to the fair, and they came across the street like 10 or 15 minutes after I was already parked. Q When you got to the fair the second time? A Correct. No one seen me drive.26 Following closing arguments, the court found Defendant guilty of driving under the influence, endangering the welfare of a child and summary harassment. It found him not guilty of recklessly endangering, simple assault27 and failure to wear a seat belt.~8 In its verdict, the court expressly found that the children were not restrained while the Defendant was driving the vehicle.29 ~6 N.T. 32-33. 27 Testifying as a Commonwealth witness, Defendant's companion insisted that she had merely been "shoved." N.T. 19-20. 28 N.T. 39. ~9 N.T. 39. 5 94-0965 CRIMINAL TERM Defendant was sentenced on Tuesday, February 14, 1995. On the charge of driving under the influence, he was ordered to pay a fine of $300 and undergo imprisonment in the county prison for a period of not less than 30 days3° nor more than 23 months, with automatic parole at the expiration of 30 days. On the charge of endangering the welfare of a child, he was placed on concurrent probation with supervision for a period of 23 months. On the charge of harassment, he was ordered to pay a fine of $75.3~ Defendant filed an appeal from the judgment of sentence on March 13, 1995. DISCUSSION Sufficiency of evidence - general rule. In reviewing a challenge to the sufficiency of the evidence, a court "views the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, viewed in this light, is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Douglass, 403 Pa. Super. 105, 115, 588 A.2d 53, 58 (1991). Drivinq under the influence. A person is guilty of driving under the influence if he or she drives, operates or is in actual 30 This offense was a second offense for mandatory sentencing purposes. See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(e)(1)(ii) (1994 Supp.) (mandatory minimum sentence of 30 days imprisonment in case of second driving-under-the- influence offense within seven years). 3~ Order of Court, February 14, 1995. 6 94-0965 CRIMINAL TERM physical control of the movement of any vehicle "while the amount of alcohol by weight in the blood of the person is 0.10% or greater''32 or "if the amount of 'alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person's breath, blood or urine, which sample is ... obtained within three hours after the person drove, operated or was in actual physical control of the vehicle[,]''33 inter alia. With respect to a relation back of the result of a blood alcohol content test to the time of driving for purposes of the first form of driving under the influence quoted above, the Pennsylvania Supreme Court has stated as follows: [O]nce the Commonwealth has established that the driver's blood alcohol content reflects an amount above 0.10%, the Commonwealth has made a prima facie case under 75 Pa. C.S. ~3731(a)(4). At this point, the defendant is permitted to introduce expert testimony to rebut the Commonwealth's prima facie evidence. If the defendant decides to rebut the prima facie evidence against him with expert testimony, then the Commonwealth may present its own expert to refute this testimony. Commonwealth v. Yarger, Pa. , , 648 A.2d 529, 531 (1994) (holding Commonwealth not required to present expert testimony relating back BAC test result of .18% obtained within 40 minutes of driving where no rebuttal to such prima facie evidence offered by 32 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. ~3731(a)(4) (1994 Supp.). 33 Act of June 17, 1976, P.L. 162, ~1, as amended 75 Pa. C.S. §3731(a)(5)(i) (1994 Supp.). 7 94-0965 CRIMINAL TERM defendant); see Commonwealth v. Trial, Pa. Super. , 652 A.2d 338 (1994). In this case, a view of the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth reveals that the evidence of Defendant's guilt was compelling as to both forms of driving under the influence referred to above. He was seen driving, he admitted to driving, he displayed signs of alcohol consumption, he admitted to alcohol consumption, and a blood alcohol content test administered about an hour after his driving produced a result of .191%. Defendant presented no evidence to rebut this prima facie evidence that his blood alcohol level was .10% or greater at the time of driving, and the test result fell within the specified three-hour period following his driving. Under these circumstances, it is believed that the evidence was sufficient to sustain Defendant's conviction for driving under the influence. Endanqering the welfare of a child. Under Section 4304 of the Crimes Code, a person is guilty of endangering the welfare of a child if he or she is "[a] parent, guardian or other person supervising the welfare of a child under 18 years of age,"34 and "knowingly endangers the welfare of the child by violating a duty 34 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §4304 (1994 Supp.). 8 94-0965 CRIMINAL TERM of care, protection or support.''35 This provision "contemplates endangerment either by act or by omission to act." Commonwealth v. Miller, 411 Pa. Super. 33, 37, 600 A.2d 988, 990 (1992). In addition, "[t]he [Pennsylvania] Supreme Court has said that [the provision] was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purposes for which it was enacted." Commonwealth v. Taylor, 324 Pa. Super. 420, 426, 471 A.2d 1228, 1231 (1984), citing Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976). The risk of harm occasioned by drunk driving is a matter of common knowledge. In this regard, it has been said that in the past about one-half of all traffic fatalities have been alcohol- related. See Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983). The Pennsylvania Supreme Court has noted "the wanton and senseless slaughter of and injury to innocent people upon our highways caused by drunk drivers." Id. at 248, 470 A.2d at 1341. In the present case, the evidence revealed that Defendant was observed supervising two children, and that he was the father of one if not both of them; that their ages were about three and five; that he was seen driving a motor vehicle away from their mother, 35 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. ~4304 (1994 Supp.). 9 94-0965 CRIMINAL TERM while the children sat in the back seat unprotected by a restraint system; and that he was operating the vehicle while under the influence of alcohol as evidenced by a test result of almost twice the legal limit, and in a state of visible intoxication. These facts, it is believed, represented sufficient evidence of knowing conduct within the intended purview of Section 4304 of the Crimes Code to warrant Defendant's conviction for endangering the welfare of a child. Travis N. Gery, Esq. Sr. Assistant District Attorney H. Anthony Adams, Esq. Assistant Public Defender 10