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HomeMy WebLinkAbout92-1468 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAs OF : CUMBERLAND COUNTY, PENNSYLVA/q iA V. : 1468 CRIMINAL 1992 : CHARGE: FURNISHING LIQUOR : TO MINORS : REBECCA ANNETTE RILEY OTN: E074540-4 : AFFIANT: CORPORAL JAMES ADAMS IN RE: DEFENDANT'S POST-VERDICT MOTIONS BEFORE OLER, J. 9RDER OF COURT AND NOW, this {O ~ day of January, 1994, after careful consideration of Defendant,s post-verdict motions, the motions are DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, Jonathan R. Birbeck, Esq. Senior Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender Probation Office :rc COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 1468 CRIMINAL 1992 v. : CHARGE: FURNISHING LIQUOR : TO MINORS : REBECCA ANNETTE RILEY : AFFIANT: CORPORAL JAMES ADAMS OTN: E074540-4 IN RE: DEFENDANT'S POST-VERDICT MOTIONS BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present criminal case arises out of an incident in which Defendant allegedly shared a six-pack of beer with an eighteen- year-old acquaintance and was in possession of a marijuana smoking device and roach clip.~ Following a bench trial on Thursday, July 22, 1993, Defendant was found guilty of furnishing liquor or malt or brewed beverages to a minor in violation of Section 493(1) of the Liquor Code,2 and not guilty of possessing drug paraphernalia in violation of Section 13(a)(32) of the Controlled Substance, Drug, Device and Cosmetic Act.3 Defendant has now filed post-verdict motions in arrest of judgment and for a new trial, contending in support of both motions that (1) the Court erred in denying her pretrial motion to suppress ~ Commonwealth v. Riley, No. 1468 Criminal 1992, July 22, 1993, at 12-15 (hereinafter N.T. __). 2 N.T. 27; Act of April 12, 1951, P.L. 90, ~493(1) as amended, 47 P.S. ~4-493(1) (1993 Supp.). 3 N.T. 27; Act of April 14, 1972, P.L. 233, §13(a)(32), as amended, 35 P.S. ~780-113(a)(32). 1468 CRIMINAL 1992 evidence resulting from an officer's allegedly unwarranted intrusion upon her and her friend,4 (2) the evidence was insufficient to support the guilty verdict in that it failed to show the beverage involved was liquor or a malt or brewed substance,5 and (3) the evidence was insufficient to support the verdict in that an eighteen-year-old is not a minor under the Liquor Code.6 For the reasons stated in this Opinion, the motions must be denied. STATEMENT OF FACTS Evidence presented at trial, which was confined to testimony and exhibits introduced on behalf of the Commonwealth,7 tended to show the following: At approximately 2:20 on the morning of Saturday, January 18, 1992, Corporal James Adams of the Upper Allen Township Police Department was on patrol in an unmarked car when he observed a vehicle parked by a group of office condominiums under construction.8 Corporal Adams testified that he had checked this Brief in Support of Defendant's Post-trial Motions, at 5- 11. Brief in Support of Defendant's Post-trial Motions, at 12- 15. Brief in Support of Defendant's Post-trial Motions, at 16- 17. Under Cumberland County Rule of Court 210-7, other issues, not briefed, are deemed waived. 7 The Defendant rested at the conclusion of the Commonwealth's case. N.T. 48. 8 N.T. 6-7. 2 1468 CRIMINAL 1992 area approximately one half-hour earlier, and that the vehicle was not present at that time.9 The only other vehicles in the area consisted of construction-related equipment.~° Corporal Adams parked his car and exited therefrom.~ As he approached the driver's side of the vehicle, the driver, later identified as Defendant, rolled down the window.~2 Corporal Adams detected the odor of burnt marijuana coming from the vehicle and also observed some beer cans lying on the floor of the right front passenger's seat.~3 The only other person in the car was David Jeremy Clark,TM an eighteen-year-old male,~s whose date of birth was May 9, 1973.~6 Defendant's date of birth was February 12, 1964.~7 Their vehicle was registered to an individual named Mark Tocci.~8 While conversing with Defendant, Corporal Adams asked her 9 N.T. 7. ~0 N.T. 7. ~ N.T. 7. ~2 N.T. 8. ~3 N.T. 8. ~4 N.T. 8. ~s N.T. 9-10. ~6 N.T. 11. ~7 N.T. 12. ~8 N.T. 19. 3 1468 CRIMINAL 1992 whose beer it was.~9 Defendant responded that she purchased a six- pack of Old Milwaukee at Moe's bar for Mr. Clark and that he provided some marijuana.2° Defendant further told Corporal Adams that Mr. Clark drank most of the beer, that she had consumed only one or two cans, and that they had smoked all of the marijuana just prior to the officer's arrival.2~ Corporal Adams then asked Defendant and Mr. Clark to get out of the car.22 The officer proceeded to collect the empty beer cans from the floor of the right front passenger seat and to search the rest of the car.23 It contained an empty 16-ounce can of Old Milwaukee, an empty 16-ounce can of Budweiser, a half-full 16-ounce can of Old Milwaukee, a 16-ounce can of Old Milwaukee converted into a smoking device, and a roach clip that was hanging from the rearview mirror.24 The 16-ounce Old Milwaukee can that was converted into a smoking device was among the items entered into evidence.2s Corporal Adams concluded that Mr. Clark had been drinking alcohol. His opinion was based upon the distinctive odor on Mr. ~9 N.T. 11. 20 N.T. 12. 2~ N.T. 12. 2~ N.T. 12. 23 N.T. 20-21. 24 N.T. 20, 24. 2s N.T. 13, 25. 4 1468 CRIMINAL 1992 Clark's breath, his condition,26 and admissions of both Defendant and Mr. Clark.27 STATEMENT OF LAW AND DISCUSSION Motion in arrest of judgment. A motion in arrest of judgment "is a proper means of challenging the sufficiency of the evidence to support a conviction." 27 Standard Pennsylvania Practice §135:200, at 282 (1985). In reviewing a challenge to the sufficiency of the evidence, the 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). 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. Commonwealth v. Tullius, 399 Pa. Super. 172, 175, 582 A.2d 1, 2 (1990), allocatur denied, 527 Pa. 645, 593 A.2d 418 (1991). In addition, it is the general rule in Pennsylvania that a court "may not grant a motion in arrest of judgment on a diminished record." Commonwealth v. Williams, 411 Pa. Super. 586, 598, 602 A.2d 350, 356 (1992). "Instead, in reviewing a motion in arrest of judgment, 'the sufficiency of the evidence must be evaluated upon 26 N.T. 16. 27 N.T. 16. 5 1468 CRIMINAL 1992 the entire trial record .... '" Id., quoting Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965). With respect to Defendant's first contention in support of her motion in arrest of judgment - that the Court erred in refusing to suppress evidence resulting from the officer's encounter with Defendant -- the issue of suppression was the subject of a pretrial Opinion and Order of Court dated July 13, 1993. This Opinion is incorporated by reference herein. In addition, the rule that a motion in arrest of judgment will not be granted on a diminished record is a second basis for denial of relief in the form of a discharge requested on this ground. With respect to Defendant's second contention in support of the motion in arrest of judgment - that the evidence was insufficient to support the verdict because it did not show that an alcoholic beverage was involved - the Liquor Code provides that a malt or brewed beverage is "any beer, lager beer, ale, porter or similar fermented malt beverage containing one-half of one per centum or more of alcohol by volume, by whatever name such beverage may be called." Act of April 12, 1951, P.L. 90, §102, as amended, 47 P.S. ~1-102 (1993 Supp.). In support of her position that the evidence was deficient with regard to proof of such a beverage, Defendant cites Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 609 A.2d 791 (1992). In Tau Kappa Epsilon, several investigators of the State College Bureau of Police Services conducted an investigation of 6 1468 CRIMINAL 1992 off-campus fraternities to determine whether they were serving alcoholic beverages to minors. The investigators entered the fraternities in plain clothes, obtained a beverage that was being served at the bar with the appearance and taste of beer, and observed individuals drinking who did not appear to be twenty-one years of age. Once these individuals left the fraternity, they were approached to determine their ages. After it was ascertained that they were indeed under twenty-one, the fraternities providing the beverage were charged with furnishing liquor or malt or brewed beverages to a minor in violation of Section 493(1) of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-493(1) (1993 Supp.). On appeal, the Pennsylvania Supreme Court held that the testimony of the minors and an investigator that the liquid served in the fraternities had the appearance and taste of beer was insufficient to sustain convictions under the statute. Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 420, 609 A.2d 791, 793 (1992). The Court stated that "[f]amiliarity with the taste and appearance of beer does not provide the certitude achieved by proper scientific analysis," and held that "[w]ithout evidence of the percentage of alcohol by volume contained in the beverages served ... the criminal convictions ... must fail." Id. at 420- 21, 609 A.2d at 793-94. However, the facts in Tau Kappa Epsilon are distinguishable from those in the present case. In Tau Kappa Epsilon, there was no 7 1468 CRIMINAL 1992 testimony or evidence offered as to the brand of beer that was being served at the fraternities; the Commonwealth relied simply on the testimony of an investigating officer and the minors that, on the basis of appearance and taste, the liquid being served was a proscribed beverage. In this regard, the Supreme Court took judicial notice of the fact that there are brewed beverages with an appearance and flavor similar to beer that contain less than one- half of one percent of alcohol by volume and are available for sale in the Commonwealth. Id. at 420 n.2, 609 A.2d at 793 n.2. In the present case, Defendant told Corporal Adams that she purchased a six-pack of Old Milwaukee at a bar and that she and Mr. Clark consumed it. Additionally, Corporal Adams found empty cans of Old Milwaukee in the vehicle when he searched it, and one of the cans was admitted into evidence. Old Milwaukee is designated in the Pennsylvania Bulletin as a product registered by the manufacturer with the Pennsylvania Liquor Control Board as a "malt or brewed beverage" as defined in the Liquor Code. 22 Pa. Bull. 4146, 4152 (1992). These facts contrast sharply with those of Tau Kappa Epsilon and amply support a conclusion that the beverage furnished by Defendant to her friend was a proscribed one under the Code. With respect to Defendant's third contention - that the evidence was insufficient to support the verdict because an eighteen-year-old is not a minor for purposes of the Liquor Code -- it is argued that "the Liquor Code fails to define 'minor' and the 8 1468 CRIMINAL 1992 age of majority in this State is generally eighteen .... .2. The Statutory Construction Act of 1972, however, provides as follows: The following words and phrases, when used in any statute finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise, shall have the meanings given to them in this section: ... "Minor." An individual under the age of 21 years. Act of December 6, 1972, P.L. 1339, ~3, as amended, 1 Pa. C.S. ~1991 (1993 Supp.); see also Act of April 12, 1951, P.L. 90, ~495, as amended, 47 P.S. §4-495 (1993 Supp.). Consequently, this ground for relief in the form of a requested discharge must also be rejected. Motion for a new trial. "[Even if] the evidence of record is sufficient to support [a defendant's] conviction, a new trial is warranted if the [conviction is] based on inadmissible evidence." Commonwealth v. Jarecki, 415 Pa. Super. 286, 290, 609 A.2d 194, 196 (1992). In addition, a new trial is warranted if "the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail." Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1230 (1984). In this regard, "[al motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the Brief in Support of Defendant's Post-trial Motions, at 16. 9 1468 CRIMINAL 1992 weight of the evidence." Id. Where a motion for a new trial is based upon the weight of the evidence, a decision by the court is a matter within its sound discretion. Id. The contentions which Defendant has advanced in support of an arrest of judgment must be found similarly unavailing with respect to her motion for a new trial. With regard to the alleged error in the Court's pretrial ruling on Defendant's suppression motion, the earlier Opinion and Order of Court are again interposed. With respect to the alleged deficiencies in the evidence with regard to the nature of the beverage involved and the age of majority, the preceding discussion is reiterated; in addition, no evidence was presented by the Defendant to counter the weight of the Commonwealth's evidence. For these reasons, Defendant's post-verdict motions in arrest of judgment and for a new trial must be denied. The following Order will therefore be entered: ORDER OF COURT AND NOW, this /~'~/~ day of January, 1994, after careful consideration of Defendant's post-verdict motions, the motions are DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 10 1468 CRIMINAL 1992 Jonathan R. Birbeck, Esq. Senior Assistant District Attorney Timothy L. Clawges, Esq. Assistant Public Defender Probation Office : rc 11