HomeMy WebLinkAbout94-1619 Criminal (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 94-1619 CRIMINAL TERM
:
DUANE ALAN PETRO :
OTN: E956979-2 : CHARGE: (A) DUI
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., November 1, 1995.
In this criminal case, Defendant has appealed to the Superior
Court from a judgment of sentence imposed by the writer of this
Opinion for driving under the influence. He was found guilty of
the form of the offense which consists of driving while one is
under the influence of alcohol to a degree which renders him
incapable of safe driving.
The basis of the appeal is that the evidence was "insufficient
to convict Defendant of driving under the influence under 75 PA CSA
3731(a)(1)."~ This Opinion in support of the judgment of sentence
is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a). .~.
STATEMENT OF FACTS
As a result of a single-vehicle accident that occurred in
Cumberland County in the spring of 1994,2 Defendant was charged
~ Defendant's Concise Statement of Matters Complained of on
Appeal, paragraph 1.
2 N.T. 9, Trial, July 19-21, 1995, Commonwealth v. Petro, No.
94-1619 Criminal Term (hereinafter N.T. __).
NO. 94-1619 CRIMINAL TERM
with driving under the influence of alcohol.3 A jury trial was
held on the matter in July of 1995. Evidence presented at trial
tended to show the following facts in support of the prosecution:
On Friday, June 10, 1994, at approximately 11:45 p.m.,4
Defendant Duane Alan Petro was involved in a one-vehicle accident
while driving his Ford Ranger pickup truck5 on an exit ramp of
Route 581 in Cumberland County.~ It was a warm, clear night, and
the road was dry.? Defendant's pickup truck left the cartway on a
curve in the direction of centrifugal force and ended up on its
roof in someone's back yard.a
3 Specifically, Defendant was charged with violating the
following provisions of Section 3731 of the Vehicle Code:
S3731(a) (1) (driving, operating, or being in physical control of a
vehicle while under the influence of alcohol to a degree which
renders the person incapable of safe driving); S3731 (a) ( 4 )
(driving, operating, or being in physical control of a vehicle
while the amount of alcohol by weight in the blood of the person is
.10% or greater); and ~3731(a)(5) (driving if the amount of alcohol
by weight in the blood of the person at the time of a chemical test'
within three hours of driving is .10% or greater). Act of June 17,
1976, P.L. 162, §1, as amended, 75 Pa. C.S.A. §3731(a)(1), (4),
(5).
Defendant was also charged with a violation of Section
3361 of the Vehicle Code (driving vehicle at an unsafe speed). Act
of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S.A. §3361.
N.T. 9.
N.T. 36.
N.T. 20.
N.T. 9.
N.T. 21, 35, 52-53.
2
NO. 94-1619 CRIMINAL TERM
Almost immediately thereafter, a man named Charles~ Irvin
entered the exit ramp and found his way blocked by a semitrailer
which had stopped in the driving portion of the ramp with its four-
way flashers on.9 After exiting his car, Mr. Irvin saw a vehicle
(later identified as belonging to Defendant) on its roof, and a
person (later identified as Defendant) inside the vehicle.~° The
driver of the semitrailer who had stopped to assist was also on the
scene.~ Mr. Irvin called 911 on his cellular phone.~2
The Defendant crawled out of his truck through the truck's
window.~3 Once he exited, Defendant would not sit down.~4 Mr. Irvin
noticed that Defendant had a scratch on his right leg and was
bleeding.~5 Defendant asked Mr. Irvin if he could use Mr. Irvin's
cellular phone to call his fiancee.~6 However, Defendant fumbled
several times trying to dial and could not finish.~? The truck
9 N.T. 10.
N.T. 11.
N.T. 11.
N.T. 11.
N.T. 12.
N.T. 13.
N.T. 13.
N.T. 14.
N.T. 14.
3
NO. 94-1619 CRIMINAL TERM
driver eventually made the call for the Defendant.~8 Upon hearing
the ambulance siren, Defendant wanted to leave the scene, and he
did not want to wait for medical help.~9
Tim Hutcheson, an emergency technician for Hampden Township
Emergency Medical Services,2° was dispatched to the accident at
11:50 p.m.2~ When he arrived at the scene, Mr. Hutcheson observed
Defendant's vehicle overturned in the aforesaid yard.22 Mr.
Hutcheson saw Defendant sitting next to the passenger's side of the
vehicle.23 Defendant had an abrasion on his left leg and a
contusion on his back.24 During his interaction with Defendant, Mr.
Hutcheson noticed that Defendant looked upset and agitated, was not
responding correctly to commands, and was trying to move around.25
Mr. Hutcheson found Defendant's overall behavior to be
uncooperative.2~
N.T. 15.
N.T. 15.
N.T. 19-20.
N.T. 23.
N.T. 21.
N.T. 21.
N.T. 21.
N.T. 22.
N.T. 24.
4
NO. 94-1619 CRIMINAL TERM
Mr. Hutcheson smelled alcohol coming from Defendant.27 When
questioned about the accident, Defendant stated that he took the
exit ramp too fast.2" Defendant also informed Mr. Hutcheson that
he had consumed a six-pack of beer.29 Defendant was then
transported by ambulance to ~oly Spirit Hospital.3°
Daryl P. Gore, a Pennsylvania State Trooper with Troop "~" in
Harrisburg,3~ was dispatched to the scene at 11:50 p.m., and he
arrived a little after midnight.32 Trooper Gore did not get to
speak to Defendant at the accident scene because he was at that
time being transported to the hospital.33
Trooper Gore went to the hospital to speak with Defendant.34
During the conversation, the trooper detected an odor of an
2v N.T. 22.
2e N.T. 23. The legal speed limit was 55 mph, but the
suggested speed as posted was 35 mph. At the time of the accidenti'.~
according to what Defendant told the police, he was traveling 45
mph. N.T. 55. At trial, Defendant testified that the accident
occurred when he became distracted by a car passing him, that he
took his eyes off the road, and that he consequently took the turn
too fast. N.T. 166.
N.T. 23.
N.T. 23.
N.T. 37.
N.T. 34.
N.T. 35.
N.T. 40.
5
NO. 94-1619 CRIMINAL TERM
alcoholic beverage about the Defendant.3~ He also noticed that
Defendant's eyes were red and bloodshot.36 Because of the
Defendant's demeanor, the trooper formed an opinion that his
driving capabilities "were impaired.',37
Before Trooper Gore asked Defendant any questions relative to
his drinking, he read Defendant his Miranda rights and advised him
of the implied consent law.38 Defendant told the trooper that he
had consumed four 16-ounce containers of Yuengling malt liquor.~9
Trooper Gore asked Defendant if he was under the influence of an
alcoholic beverage, and Defendant replied "Yes I am.''4° Because
Defendant was on a gurney, the trooper did not administer any field
sobriety tests at the hospital.4~ Blood was drawn from Defendant
for a blood alcohol content test at 1:40 a.m.42 The test result was
N.T. 40.
N.T. 42.
N.T. 47.
N.T. 40.
39 N.T. 42. Defendant testified that he had consumed alcohol
over an hour and a half period from 10:00 p.m. to 11:30 p.m. N.T
163. '
40 N.T. 43. Defendant denied having told Trooper Gore that
he was under the influence of alcohol. N.T. 189.
N.T. 64.
N.T. 44.
6
NO. 94-1619 CRIMINAL TERM
said to be .30%.43
A jury trial was held on July 19, 20, and 21 of 1995. The
jury returned a verdict of guilty of the charge of driving under
the influence of alcohol, by reason of Defendant's having driven
while under the influence of alcohol to a degree that rendered him
incapable of safe driving.44 On August 22, 1995, the Court
sentenced Defendant to the mandatory minimumsentence applicable to
driving-under-the-influence third offenders.45
Defendant filed an appeal on September 20, 1995, claiming that
the evidence was insufficient to supporta conviction under Section
~731(a)(1) of the Vehicle Code.46
STATEMENT OF LAW
When reviewing a challenge to the sufficiency of the evidence,
a court is to determine
whether, viewing all the evidence admitted at
trial, together with all reasonable inferences
therefrom, in the light most favorable to the .~.~
Commonwealth, the trier of fact could have
43 N.T. 76.
44 N.T. 283. The Court found Defendant guilty of the summary
offense of driving at an unsafe speed. Id. 285-86.
The jury found Defendant not guilty of the charges of
driving under the influence as they related to the amount of
alcohol by weight in his blood at the time of driving, and within
three hours thereafter. Id. 284-85.
45 Order of Court, August 22, 1995.
46 Defendant's Concise Statement of Matters Complained of on
Appeal, paragraph 1.
7
NO. 94-1619 CRIMINAL TERM
found that each element of the offense charged
was supported by evidence and inferences
sufficient in law to prove guilt beyond a
reasonable doubt.47
It is within the province of the factfinder to determine the weight
to be given to each witness's testimony and to believe all, part,
or none of the evidence.48
Section 3731(a)(1) of the Vehicle Code provides as follows:
S 3731. Driving under influence of alcohol or controlled
substance
(a) Offense defined.--A person shall not drive,
operate or be in actual physical control of the movement
of any vehicle:
(1) while under the influence of alcohol
to a degree which renders the person incapable
of safe driving;
To support a conviction under Section 3731(a)(1), the
Commonwealth is required to prove:
1. That [defendant] drove, operated, or was
in actual physical control of the movement of
his vehicle;
2. While he was under the influence of
alcohol to a degree which rendered him
incapable of safe driving.49
In interpreting the phrase "under the influence of alcohol,"
~7 Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d
1, 2 (1990), appeal denied, 527 Pa. 645, 593 A.2d 418 (1991).
~8 Id.
~ Commonwealth v. Weis, 416 Pa. Super. 623, 635, 611 A.2d
1218, 1225 (1992).
8
NO. 94-1619 CRIMINAL TERM
the Supreme Court of Pennsylvania has stated:
The statute does not require that a person be
drunk, or intoxicated, or unable to drive his
automobile safely in traffic, but merely that
the Commonwealth prove beyond a reasonable
doubt that the defendant was operating his
automobile under the influence of intoxicating
liquor .... The statutory expression "under
the influence of intoxicating liquor" includes
not only all the well known and easily
recognized conditions and degrees of
intoxication, but also any mental or physical
condition which is the result of drinking
alcoholic beverages and (a) which makes one
unfit to drive an automobile, or (b) which
substantially impairs his judgment, or
clearness of intellect, or any of the normal
faculties essential to the safe operation of
an automobile.5°
The Court has further stated that substantial impairment means
"a diminution or enfeeblement in the ability to exercise judgment,
to deliberate or to react prudently to changing circumstances and
conditions. Its meaning is not limited to some extreme condition
of disability.-5~ Thus, with regard to the proof necessary to meet
the second element, the "absence of extreme impairment or other
tangible behavior is not necessarily dispositive of [a defendant's]
ability to operate his vehicle in a safe manner.''52
Familiar indicia of driving under' ~ unsafe
5o Commonwealth v. Griscavage, 512 Pa. 540, 544-45, 517 A.2d
1256, 1258 (1986) (emphasis in original).
5~ Id. at 545, 517 A.2d at 1258.
52 Commonwealth v. Weis, 416 Pa. Super. at 637, 611 A.2d at
1226.
NO. 94-1619 CRIMINAL TERM
driving,s3 an accident under circumstances suggestive of serious
driver error,s4 the odor of an alcoholic beverage on a driver's
breath,ss a driver's bloodshot eyes,s6 and a driver's admission of
the consumption of alcohol prior to driving.~7
APPLICATION OF LAW TO FACTS
In order to establish Defendant's guilt, the Commonwealth had
to prove: (1) that he was driving a vehicle; (2) while under the
influence of alcohol to a degree which rendered him incapable of
safe driving. In the instant case, there is no dispute with
respect to the first element.
With regard to the second element, the record contains
evidence tending to show, directly or by reasonable inference, that
Defendant had been drinking significantly before driving, that the
one-vehicle accident in which he was involved was the result of
excessive speed and serious miscalculation on his part, that he was
impaired to such an extent at the time that he was unable to dial'.
~3 See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d
1245 (1990).
~4 See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920
(1990); Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569,
appeal denied, 527 Pa. 646, 593 A.2d 419 (1990).
~s See Commonwealth v. Fick, 391 Pa. Super. 625, 571A.2d 1091
(1990); Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748
(1982).
~ See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920
(1990).
~? See id.
10
NO. 94-1619 CRIMINAL TERM
a familiar telephone number, remain still, follow directions or
cooperate with rescue personnel, that the odor of an alcoholic
beverage on his breath and his bloodshot eyes following the
accident demonstrated the continuing effects of alcohol
consumption, and that the trooper correctly assessed his capacity
to drive when interviewing him at the hospital. Based upon the
authority discussed above, such evidence would appear to have been
more than sufficient to permit a trier of fact to find beyond a
reasonable doubt that Defendant was under the influence of alcohol
to a degree that rendered him incapable of safe driving.
For these reasons, it is believed that the judgment of
sentence imposed herein was properly entered.
Jaime M. Keating, Esq.
Assistant District Attorney
Ellen K. Barry, Esq.
First Assistant Public Defender
:re
11