Loading...
HomeMy WebLinkAbout94-0145 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 94-0144 CRIMINAL TERM : CHARGE: FLEEING OR ATTEMPTING v. : TO ELUDE POLICE : AFFIANT: PTL. JAMES FRENCH : : 94-0145 CRIMINAL TERM : CHARGE: DRIVING UNDER : SUSPENSION JERRY LEE OTT : AFFIANT: PTL. JAMES FRENCH IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J. In the present criminal case, Defendant appealed to this Court from summary convictions for Fleeing or Attempting To Elude a Police Officer, Driving under Suspension (DUI-Related), and Reckless Driving. A trial de novo was held before the writer of this Opinion on March 8, 1994. At the conclusion of this trial, Defendant was found guilty of Driving under Suspension (DUI- Related)~ and Fleeing or Attempting To Elude a Police Officer,2 and was found not guilty of Reckless Driving;3 he was sentenced on the charges as to which he was found guilty. Defendant filed a notice of appeal to the Superior Court from the judgment of sentence on April 7, 1994, and, pursuant to a direction from this Court,4 a Statement of Matters Complained of on Appeal was filed on May 2, ~ Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1543(b) (1994 Supp.). 2 Act of June 17, 1976, P.L. 162, 51, 75 Pa. C.S. 53733(a), (b). 3 Act of May 30, 1990, P.L. 173, 517, 75 Pa. C.S. 53736(a) (1994 Supp.). Defendant's Statement of Matters Complained of on Appeal does not address this offense. Therefore, it will not be further discussed in this Opinion. 4 See Order of Court, April 18, 1994. 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM 1994. This Opinion is written in support of the judgment of sentence pursuant to Pennsylvania Rule of Appellate Procedure 1925. Statement of facts. On October 29, 1993, at 12:37 a.m., Officer James French of the Mid-Cumberland Valley Regional Police Departments was on routine patrol in an unmarked patrol unit6 in the area of Chateau Terrace, an apartment complex located on McAllister Road in Shippensburg, Pennsylvania.? As Officer French was exiting the parking lot of the apartment complex and was proceeding to make a left turn onto McAllister Road, a green Chevrolet truck approached his vehicle, heading in the direction that he was about to turn.8 As the truck proceeded past Officer French, the driver looked directly at him, and Officer French identified the driver as Defendant.9 After the truck had passed him, Officer French pulled out directly behind the truck and followed it down McAllister Road.~° Officer French continued to follow the truck as it made a left turn onto Fayette Street, at which point the truck "all but came to a s Commonwealth v. Jerry Lee Ott, Transcript of Proceedings, March 8, 1994, at 4 (hereinafter N.T. __). N.T. 6. N.T. 5-6. N.T. 7. N.T. 8. N.T. 9. 2 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM stop.''~ When the truck slowed down, Officer French "turned on the red light [attached to his dashboard] and also [his] wigwag or flashing front headlights.-~2 Additionally, Officer French indicated that, at this time, "he was able to get the registration plate of the vehicle ... [and] had called in that [he] was attempting to stop that vehicle."~3 After Officer French had turned on the warning lights, "the truck just took off," in that it "went from almost a complete stop to accelerating away from" the officer.TM At this point, Officer French turned on the siren of the car and followed the truck northbound on North Fayette Road and onto Roxbury Road.~5 Officer French further testified that, during this pursuit, "[i]t got to the point, almost immediately, that we were going at a high rate of speed,"~6 and that he recalled "doing seventy -- at least seventy- five miles an hour during the beginning parts of the chase."~? After approximately four or five miles into the chase, Officer ~ Id. ~2 N.T. 9. ~3 N.T. 11. ~4 N.T. 10. ~5 N.T. 11. ~6 N.T. 11. ~? N.T. 11. 3 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM French "cut down the ... high-speed pursuit" as the vehicles were approaching "an area called Mongrul.''~8 Officer French testified that, since Defendant had "crossed not only the center yellow but the white fog line ... several times,"~9 and since the vehicles had passed "through many residential areas where there were houses on either both sides of the road or a long strip of houses on one side,"2° he discontinued the high-speed chase out of concern for his own safety and that of "anybody who might be walking along the road.''2~ Officer French did, however, continue to drive around in the area for four or five miles, hoping to locate Defendant.22 Officer French testified that the chase began in Cumberland County.23 However, he also indicated that a portion of the chase may have occurred in Franklin County.24 During cross-examination, Officer French stated that, although he had called in a physical description of the vehicle prior to commencing his pursuit of Defendant, he "wasn't quite sure of all N.T. 13. N.T. 13. N.T. 13. Id. N.T. 14. Id. Id. 4 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM of the numbers" in the registration.2s However, he further indicated that, several evenings later, he saw the vehicle, as well as Defendant, at a local convenience store,26 and that, at that time, he verified the partial registration information he had obtained on the night of the pursuit.27 Officer French further testified that, subsequent to his inability to find Defendant after the pursuit on October 29, he requested a copy of Defendant's driving record.28 This record was produced on November 8, 1993, and it revealed that Defendant was an "habitual offender" whose driving privileges were suspended to the year 2012.29 It also indicated that Defendant's driving privileges were suspended as a result of a conviction for driving under the influence.3° Based upon this driving record, Officer French filed traffic citations against Defendant. It should also be noted that, prior to the incident on October 29, 1993, Officer French had had several contacts with Defendant. These interactions included an opportunity to serve a warrant on N.T. 16; Commonwealth's Exhibit 1. Id. N.T. 22. 28 N.T. 14. This driving record was introduced as Commonwealth's Exhibit 1. ~9 N.T. 15; Commonwealth's Exhibit 1. 30 N.T. 16; Commonwealth's Exhibit 1. 5 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM Defendant, as well as spending two hours with Defendant at the police station during the summer of 1993.3~ Furthermore, Officer French knew that Defendant's driving privileges were under suspension.32 Additionally, during the trial, both Defendant and Barbara Boggs, the owner of the vehicle in question, testified. Defendant stated that, on October 29, 1993, he was at Ms. Boggs' residence adjacent to Chateau Terrace.33 He indicated that he was not driving the truck at 12:37 a.m., and he was, in fact, in bed at that time.34 Ms. Boggs testified in support of this contention, and she further stated that she had let a Bob Whitmer use her truck during the week in which the incident occurred. At the conclusion of the trial, Defendant was found guilty of Driving Under Suspension (DUI-Related) and Fleeing or Attempting To Elude a Police Officer.35 However, he was found not guilty of Reckless Driving, because "the Court [was] not convinced beyond a reasonable doubt that the reckless driving occurred in Cumberland N.T. 4-5. N.T. 5. N.T. 42-43. N.T. 43. N.T. 58. 6 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM County.,,36 Statement of law. Initially, it should be noted that "[i]ssues of credibility are properly left to the trier of fact for resolution." Commonwealth v. Chambers, 528 Pa. 558, n.7, 599 A.2d 630, 643 n.7 (1991), cert. denied, U.S. , 112 S. Ct. 2290, 119 L. Ed. 2d 214 (1992). In this regard, "the trial court, sitting as fact finder, [is] free to accept all, part, or none of a witness's testimony." Commonwealth v. Strutt, 425 Pa. Super. 95, 99, 624 A.2d 162, 164 (1993). Furthermore, "Iai mere conflict in testimony [will] not render evidence insufficient .... The fact that there are some inconsistencies in the witnesses' testimony is not alone sufficient to destroy the Commonwealth's case or render the evidence insufficient to support the verdict." Commonwealth v. Long, 425 Pa. Super. 170, 185, 624 A.2d 200, 208, allocatur denied, Pa. , 633 A.2d 150 (1993). With respect to the summary offense of driving under suspension (DUI-Related), Section 1543(b) of the Vehicle Code provides that "Ia]ny person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked ... because of a violation of section ... 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 3~ Id. 7 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM and to undergo imprisonment for a period of not less than 90 days.,,37 With respect to the summary offense of fleeing or attempting to elude a police officer, Section 3733(a) of the Vehicle Code provides that "[a]ny driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, is guilty of a summary offense.-38 However, "[i]t is a defense ... under this section that the pursuing police vehicle was not clearly identifiable by its markings or, if unmarked, was not occupied by a police officer who was in uniform and displaying a badge or other sign of authority.''39 ApDlication of law to facts. In the present case, Officer French testified that he positively identified Defendant driving the truck in question on October 29, 1993, as he was exiting the Chateau Terrace apartment complex on McAllister Road. He indicated that, at that time, the vehicle was moving "unusually slow," and that he had his high beams on as he was exiting the parking lot.4° 75 Pa. C.S. S1543(b) (1994 Supp.). 75 Pa. C.S. §3733(a). 75 Pa. C.S. §3733(c). N.T. 7. 8 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM Additionally, Officer French indicated that as the truck passed by him, Defendant, who was driving it, looked directly at him. This testimony, combined with Officer French's prior contacts with Defendant, as well as his awareness of Defendant's suspension of driving privileges, warrants a finding that Defendant was in fact driving the vehicle in question on that night, and that Officer French observed him doing so. Additionally, Officer French's testimony regarding what had occurred as the two vehicles turned onto Fayette Street, including the subsequent pursuit, is sufficient to support a conviction for fleeing or attempting to elude a police officer. Once Officer French activated the "wigwags" and the red light on the dashboard of the car, Defendant quickly accelerated away from the officer. Also, Defendant continued fleeing despite Officer French's activation of the siren on the vehicle. Finally, it should be observed that, although Officer French was in a "one-color vehicle" which had no "markings on the side,''4~ this car was equipped with wigwags, a red dashboard light, and a siren. Officer French employed all of these police devices while pursuing Defendant. In addition, he was never able to successfully approach Defendant; the question of the officer's attire might be argued to be somewhat academic. Furthermore, Officer French stated 4~ N.T. 6. 9 94-0144 CRIMINAL TERM 94-0145 CRIMINAL TERM that he was on routine patrol at the time of the incident. There is no suggestion in the evidence that he was out of uniform - nor was such an argument made by defense counsel at trial. This Court is of the opinion that the defense set forth in Section 3733(c) is not availing to Defendant. Office of the District Attorney Sally J. Winder, Esq. Attorney for Defendant 10