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HomeMy WebLinkAbout95-0658 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : v. : 95-0658 CRIMINAL TERM : CHARGE: APPEAL FROM SUMMARY: : PURCHASE, ETC. OF ALCOHOLIC : BEVERAGES BY MINOR DARRELL KEACH STROUSE : AFFIANT: PTL. GREGORY THOMAS IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., September 1, 1995. In this summary offense case Defendant has appealed to the Superior Court from a judgment of sentence imposed by the writer of this Opinion. He was found guilty following a bench trial of violation of Section 6308 of the Crimes Code (purchase, consumption, possession or transportation of liquor or malt or brewed beverages by a minor).~ The sentence imposed was a fine and costs.2 The bases of the appeal as expressed in Defendant's Statement of Matters Complained of on Appeal are as follows: 1. The trial Court lacked subject matter jurisdiction over the charge of Underage Drinking brought against Defendant where there was no evidence of any overt act or other material element of the crime of underage drinking occurring within either Lower Allen Township or Cumberland County. 2. The evidence was insufficient to sustain the verdict as there was no direct or circumstantial evidence that the Defendant consumed or possessed any liquor, beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50 percent or more of alcohol by volume. ~ Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S.A. S6308 (1995 Supp.). 2 Order of Court, June 27, 1995. 95-0658 CRIMINAL TERM 3. The evidence was insufficient to sustain the verdict where there was no evidence presented establishing that the officer witnessed the Defendant drinking or possessing liquor or malt or brewed beverages as defined in 18 Pa. C.S. §6310.6. 4. There is insufficient evidence to sustain the verdict of possession of the four (4) bottles of beer and/or the bottle of liquor in the vehicle where the only evidence presented was that the Defendant was in the vehicle and in close proximity to the bottles of malt beverage or liquor and no evidence was presented that he had the power or the intent to control any bottles in the vehicle and the driver and owner of the vehicle testified that the bottles were his and had been in his vehicle for a substantial period of time. 5. The verdict is insufficient as a matter of law where the Defendant was charged by the Commonwealth with "consumption and possession" and the Commonwealth stipulated at trial that it was not seeking a conviction on the basis of consumption thereby failing to prove all the elements set forth in the charging document. This Opinion in support of the judgment of sentence is written pursuant.to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On Tuesday, February 14, 1995,3 at approximately 1:00 a.m.,4 Officer Samuel W. Morgan, a patrolman for the Lower Allen Township Police Department, in Cumberland County, was at the intersection of Lisburn and Arcona Roads in the township when he observed a vehicle 3 Trial, Commonwealth of Pennsylvania v. Strouse, No. 95-0658 Criminal Term, June 27, 1995, N.T. 5 (hereinafter N.T. 4 N.T. 5. 2 95-0658 CRIMINAL TERM coming down a hill on Rossmoyne Road.s Officer Morgan observed that the vehicle 'was approaching a "humped-back railroad crossing" at a speed that was "too great to make the crossing safely. ,,6 The vehicle went over the railroad crossing, producing a shower of sparks when it came down.7 It then started to weave in the roadway, finally "plow[lng] into the snow into a flat leveled field.''8 At that point, Officer Morgan communicated by radio with Officer Gregory Thomas, also a patrolman with the Lower Allen Township Police Department, and advised him of what he had seen.9 Officer Morgan approached the vehicle and identified himself to the occupants - a driver and a passenger.~° The passenger was Darrell Keach Strouse (hereinafter Defendant) . ~ The officer observed in plain view in the vehicle several full, unopened beer bottles, several empty beer bottles, and a partly empty bottle of what appeared to be whiskey.~2 Specifically, two unopened, full 12- ounce Budweiser King-of-Beers bottles were on the floor on the s N.T. 5 6 N.T 6 7 N.T 6 8 N.T 6 9 N.T 6 ~0 N.T 7 ~ N.T. 16. ~2 N.T. 8. 3 95-0658 CRIMINAL TERM passenger's side,TM two unopened, full 12-ounce Moosehead Canadian Lager Beer bottles were found on the floor behind the passenger's seat;TM a bottle of Jack Daniels 86-proof whiskey that had been opened and mostly drained was also found on the floor behind the driver's seat.~ Defendant's leg was in contact with the two unopened bottles on the floor on his side of the vehicle.~6 Two or three empty beer bottles were also found - one "in the passenger's side front" and the rest in the rear on the passenger's side.~? Budweiser and Moosehead Canadian Lager Beer are both registered in Pennsylvania by their manufacturers as malt or brewed beverages, having "one-half of one percentum or more of alcohol by weight." 22 Pa. Bull. No. 32, at 4147, 4151 (August 8, 1992). Officer Morgan received no response when he questioned the driver and passenger as to whose alcohol was in the car.~8 During the conversation, the officer smelled the odor of an intoxicating beverage on the driver's breath and observed that his eyes were N.T. 10. N.T. 10. N.T. 11. N.T. 22. N.T. 12. ~8 The driver did testify at trial, however, that the alcohol was his and had been in the car for at least a week. N.T. 55-56. Defendant did not testify at trial. 4 95-0658 CRIMINAL TERM "bloodshot and glassy.,,~9 The driver's clothes were described by the officer as "dishevelled.,,~0 Officer Morgan also detected the odor of an alcoholic beverage on Defendant's breath. The officer observed that Defendant's eyes were bloodshot and glassy and that his clothes were also dishevelled.2~ Officer Morgan instructed Officer Thomas (who had arrived on the scene) to attend to. Defendant while Officer Morgan administered field sobriety tests to the driver.~2 Officer Thomas approached Defendant and asked him his name, address, and other personal information.~3 At that time, Officer Thomas learned that Defendant was under 21.24 Defendant also informed the officer that he and the driver were on their way home to Dover, Pennsylvania.2S During this conversation, Officer Thomas detected an odor of ~9 N.T. 7. 20 N.T. 7. 2~ N.T. 15. 22 N.T. 8. Officer Morgan subsequently handcuffed the driver and placed him under arrest for driving under the influence. He then took the driver to Harrisburg Hospital for a blood alcohol test. See N.T. 32. ~3 N.T. 37. 24 Defendant told the officer he was born on or about November 22, 1974. N.T. 30. 2s Regarding their place of departure, the driver testified at trial that they were traveling from a friend's home in Dillsburg, York County. N.T. 58. 5 95-0658 CRIMINAL TERM an intoxicating beverage on Defendant's breath.2~ The officer further observed that Defendant had glassy eyes. When Officer Thomas asked Defendant if he had been drinking, Defendant initially replied, ,,No.,,27 However, when Officer Thomas informed Defendant that he could smell alcohol on his breath, Defendant nodded his head in an up-and-down motion.28 Officer Thomas then informed Defendant that, "because of the location of the bottles of beer and the odor of intoxicating beverage on his breath," he would be cited for underage drinking and possession.29 Since the outside temperature was cold, Officer Thomas asked Defendant if, instead of waiting at the field for Officer Morgan to return with the driver, they could finish the paperwork at the station.30 Defendant agreed and voluntarily went to the station in the patrol car with Officer Thomas. At the station, Officer Thomas read Defendant his rights and asked him again if he had been drinking.3~ Defendant acknowledged that he had 26 N.T. 30 27 N.T. 30 ~8 N.T. 30 ~9 N.T. 32 At trial, however, the Commonwealth stipulated that it was not attempting to prosecute the defendant for consumption. N T. 53. 30 N.T. 32 3~ N.T. 33 6 95-0658 CRIMINAL TERM been drinking beer.32 Trial on Defendant's appeal from summary was held by this Court on June 27, 1995. From the judgment of sentence as aforesaid, Defendant appealed to the Superior Court on July 27, 1995. STATEMENT OF LAW The section of the Crimes Code at issue in the present case provides in relevant part as follows: ~ 6308. Purchase, consumption, possession or transportation of liquor or malt or brewed beverages. (a) Offense defined.--A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions).3~ Section 6310.6 of the Crimes Code defines malt or brewed beverages as follows: "Malt or brewed beverages.,, Any beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.34 Section 6312(a) of the Vehicle Code, which is applicable as 32 N.T. 33. ~3 Act of December 6, 1972, P.L. 1482, as amended, 18 Pa. C.S.A. §6308(a) (1995 Supp.) . 34 Act of March 25, 1988, P.L. 262, §11, 18 Pa. C.S.A. §6310.6 (1995 Supp.) . 7 95-0658 CRIMINAL TERM well to the Crimes Code,3s provides in pertinent part as follows: ~6312. Liquor or malt or brewed beverages (a) General rule.--In an action or proceeding under this title or as provided in subsection (b) in which a material element of the offense is that a substance is liquor or a malt or brewed beverage, all of the following apply: (1) Chemical analysis is not required to prove that the substance is liquor or a malt or brewed beverage. (2) Circumstantial evidence is sufficient to prove that the substance is liquor or a malt or brewed beverage.36 Several cases provide guidance on the issue of whether sufficient evidence exists for a valid conviction under Section 6308(a) of the Crimes Code. In Commonwealth v. Trunzo,~7 the Superior Court held that an arresting officer's testimony regarding the odor of an alcoholic beverage on the appellant's breath, coupled with the seizure of eight Coors Light beers from the appellant's vehicle, was sufficient evidence to sustain a conviction for underage consumption of alcohol. Although the lower court in Trunzo had focused its attention on the issue of consumption, the Superior Court noted that a conviction would also have been sustainable on possession grounds: 3s Act of December 18, 1992, P.L. 1411, §20, 75 Pa.C.S.A. §6312(c) (1995 Supp.). 36 Act of December 18, 1992, P.L. 1411, §20, 75 Pa. C.S.A. §6312(a) (1995 Supp.) . 37 404 Pa. Super. 15, 589 A.2d 1147 (1991). 8 95-0658 CRIMINAL TERM Instantly, with the seizure of the Coors Light beer from the appellant's vehicle, it would have been proper to uphold the appellant's conviction for either being in actual possession of the beer or having exercised a conscious dominion or control over the beverage.38 Furthermore, in considering the above evidence, the Court determined that the prosecution was not required to produce a chemical test of the beer seized from the appellant's vehicle in order to prove a violation of Section 6308(a).39 In Commonwealth v. Roda,4° the Court of Common Pleas of Erie County held that testimony regarding the defendant's intoxication was sufficient for the Commonwealth to meet its burden of proof that the defendant had consumed a beverage containing at least one- half of one percent of alcohol by volume. In explaining its rationale, the Court stated the following: It is well settled in Pennsylvania that a defendant can be convicted of driving under the influence of alcohol based on the arresting officer's observations alone. In Commonwealth v. Richardson, 307 Pa. Super. 184, 452 A.2d 1379 (1982), it was held that the arresting officer's testimony as to strong odor of alcohol on the defendant's breath and the presence of empty beer bottles in the vehicle was sufficient to find the defendant guilty of driving under the influence .... ~ Commonwealth v. Trunzo, 404 Pa. Super. 15, 31 n.10 589 A.2d 1147, 1155 n.10 (1991) . ' ~ Id. at 30, 589 A.2d at 1154. 40 17 Pa. D.& C.4th 352 (Erie Co. 1992). 9 95-0658 CRIMINAL TERM Unquestionably, if a defendant can be convicted of driving under the influence of alcohol based on the observations of the arresting officer, then an underaged defendant can be convicted of consuming alcohol based upon the officer's observations of intoxication. Suffice it to say, if the Commonwealth's witnesses observed the defendant as being intoxicated, the Commonwealth has established that the defendant was drinking a beverage containing at least 0.5 percent alcohol by volume.4~ In Commonwealth v. Boyer,42 the Court of Common Pleas of Lancaster County held that the following evidence was "more than ample''43 to justify initiation of a prosecution for violation of a statute prohibiting minors from "attempting to purchase, purchasing, consuming, possessing or transporting any alcohol ... within the Commonwealth,,:~4 (1) the officer knew the defendant was under 21; (2) the officer detected a strong odor of an alcoholic beverage on the defendant's breath; and (3) two cans of Colt 45 Malt Liquor were found at the defendant's feet. In so holding, the Court stated as follows': It is true that the officer did not see the defendant drink any of the liquor nor did he see the defendant with any liquor in his hands. However, he smelled the odor of an 4~ Id. at 354. 42 63 Lancaster Law Rev. 51 (1970). This case involved a prosecution under the Act of June 24, 1939, P.L. 872, §675.1, 18 P.S. §4675.1, a precursor of Section 6308(a) of the Crimes Code. 43 Id. at 53. 44 Id. 10 95-0658 CRIMINAL TERM alcoholic beverage on the defendant's breath from which he would infer that the defendant had consumed some liquor and the two cans of Colt 45 were at the defendant's feet and no one else was in the immediate vicinity from which he would infer that the liquor was actually in the defendant,s possession and control. In our opinion the police officer had personal knowledge of facts which would warrant a man of reasonable caution to conclude that an offense had been or was being committed and that the defendant had committed or was committing the offense.4s Finally, with regard to the specific issue of what evidence is required to establish that a confiscated beverage contained 0.50 percent or more of alcohol by volume, the Court of Common Pleas of Lawrence County stated in Commonwealth v. Brunish: The amount of alcohol which the definitional statute requires to be contained within the malt or brewed beverage itself is fundamentally diminutive. Even beer which contains 3.2 percent of alcohol by volume is commonly considered to be a beverage which has within its ingredients a comparatively minimal amount of alcohol. Considering the minuscule requirements of the definitional statute relating to the alcoholic content of a malt or brewed beverage, the court will take judicial notice that the content of any beverage which is identified as alcoholic contains within its ingredients at least 0.5 percent of alcohol by volume.46 Furthermore, the material of the Pennsylvania Bulletin regarding the alcoholic content of specific beverages is a proper subject of 45 Id. 46 Commonwealth v. Brunish, 9 Pa. D. & C 4th 329 331 (Lawrence Co. 1990). ' ' 11 95-0658 CRIMINAL TERM judicial notice. Act of July 9, 1976, P.L. 877, §1, 45 Pa. C.S.A. §507. APPLICATION OF LAW TO FACTS Several factors militate in favor of a conclusion that (a) the evidence was sufficient to sustain a conviction of Defendant for violation of Section 6308(a) of the Crimes Code and (b) that this Court had jurisdiction of the case. First, at the time of the incident Defendant was, in accordance with the date of his birth as presented in evidence, under twenty-one years of age. Second, various bottles qualifying, without the necessity for chemical analysis, as containers of malt or brewed beverages, were found in his immediate vicinity, and he displayed common indicia of having consumed alcohol. Specifically, two full bottles were on the floor of the vehicle in contact with his person, others were within arm's length, and he had bloodshot, glassy eyes, a dishevelled appearance, and the odor of an alcoholic beverage on his breath. Third, the aforesaid circumstances were observed upon the Defendant's stop in Lower Allen Township, Cumberland County. Based upon the foregoing statutes and case law, and given the Court's authority as factfinder to draw reasonable inferences from the evidence and to determine the credibility of witnesses, it is believed that the evidence fully supported a determination that Defendant was in possession of malt or brewed beverages in violation of Section 6308 of the Crimes Code on February 14, 1995, 12 95-0658 CRIMINAL TERM and that the offense took place in Cumberland County. For this reason, it is further believed that the judgment of sentence appealed from was proPerly imposed. Suzanne Abel, Certified Legal Intern Office of the District Attorney John F. Lyons, Esquire 108-112 Walnut Street Harrisburg, PA 17101 Attorney for Defendant :rc 13