HomeMy WebLinkAbout91-1999 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
1999 CRIMINAL 1991
CHARGE: (A) DRIVING UNDER THE
INFLUENCE;
V. (B) ACCIDENT INVOLVING
DEATH OR PERSONAL INJURY;
(C) CARELESS DRIVING (Sum.)
ROD A. MASE AFFIANT: PTL. JAMES KARNS
OTN: E073146-3
IN RE: DEFENDANT'S POST -VERDICT MOTIONS
BEFORE HOFFER, HESS and OLER JJ
ORDER OF COURT
AND NOW, this day of March, 1993, after careful consideration of
Defendant's post -verdict motions in arrest of judgment and for a new trial, the motions
are DENIED. The Probation Office is requested to prepare a short presentence
investigation report, and Defendant is directed to appear for sentencing at the call of
the District Attorney.
BY THE COURT,
Jeffrey Baxter, Esq.
Assistant District Attorney
Patrick F. Lauer, Jr., Esq.
Attorney for Defendant
Probation Office
rc
J.
COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
1999 CRIMINAL 1991
CHARGE: (A) DRIVING UNDER THE
INFLUENCE;
V. (B) ACCIDENT INVOLVING
DEATH OR PERSONAL INJURY;
(C) CARELESS DRIVING (Sum.)
ROD A. MASE AFFIANT: PTL. JAMES KARNS
OTN: E073146-3
IN RE: DEFENDANT'S POST -VERDICT MOTIONS
BEFORE HOFFER, HESS and OLER, JJ.
OPINION AND ORDER OF COURT
Oler, J.
The present criminal case arises out of an automobile accident on August 9,
1991,1 in the Borough of Lemoyne, Cumberland County, Pennsylvania.' Following a
trial, Defendant was found guilty by a jury of driving under the influences and leaving
the scene of an accident involving injury,' and by the Court of the summary offense
of careless driving.' Defendant filed post -verdict motions in arrest of judgment and
for a new trial. For the reasons stated in this Opinion, the motions must be denied.
Defendant's motion in arrest of judgment is based upon alleged insufficiency of
1 Commonwealth v. Mase, No. 1999 Criminal 1991, Trial N.T. 13 (hereinafter N.T. _).
' N.T. 13.
3 N.T. 221. See Act of June 17, 1966, P.L. 162, §1, as amended, 75 Pa. C.S. §3731 (1992
Supp.).
' N.T. 222. See Act of June 17, 1976, P.L. 162, §l, as amended, 75 Pa. C.S. §3742 (1992
Supp.).
' N.T. 224. See Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. §3714 (1992
Supp.). Defendant was found not guilty by the Court of the summary offense of traveling too
fast for conditions. N.T. 224. See Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S. §3361.
1999 CRIMINAL 1991
the evidence to support the verdict of guilty of driving under the influence.' The
motion for a new trial is based upon an alleged error of the Court in admission into
evidence of the result of a chemical test of Defendant's blood for alcoholic content.'
These matters will be discussed seriatim.
With respect to Defendant's motion in arrest of judgment, it has been noted that
"[i]n reviewing the sufficiency of the evidence, the test is whether, viewing the record
in the light most favorable to the Commonwealth and drawing all reasonable
inferences therefrom, there is sufficient evidence to enable the trier of fact to find
every element of the crime beyond a reasonable doubt." Commonwealth v.
Leatherbury, 322 Pa. super. 222, 226, 469 A.2d 263, 265 (1983); see Commonwealth v.
Jackson, 506 Pa. 469, 485 A.2d 1102 (1984). In accordance with this standard, the
evidence may be summarized as follows:
At around 8:00 p.m.$ on Friday, August 9, 1991,9 as Defendant drove his car
around a curve in the Borough of Lemoyne, Cumberland County, Pennsylvania,10 he
' See Defendant's Brief in Support of Post Trial Motions 4-7.
' See Defendant's Brief in Support of Post Trial Motions 7. Although Defendant's post -
verdict motions contain 44 paragraphs, Defendant's counsel at oral argument confirmed the
more narrowly drawn statement of issues given above. In any event, under Cumberland
County Rule of Procedure 210-7, "[i]ssues raised, but not briefed, shall be deemed abandoned."
S N.T. 13.
9 N.T. 13.
io N.T. 13.
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1999 CRIMINAL 1991
crossed into the lane of oncoming traffic and collided with another car, 11 causing
injuries to its occupants.12 He fled from the scene in his car, driving recklessly and
erratically," pursued by a passing motorist, 14 who followed him to a residence on
Herman Avenue in Lemoyne.15
A few minutes after his entry into the residence,18 a Lemoyne Borough police
officer succeeded in interviewing him on the premises." The Defendant appeared
holding a full beverage glass and observed pointedly that a man had a right to drink
in his own home.18 In the officer's opinion, he was under the influence of alcohol to
a degree which rendered him incapable of safe driving.19 The Defendant stated that
he had been the driver of the car involved in the accident."
11 N.T. 14.
12 N.T. 14.
13 N.T. 40-46.
14 N.T. 43.
15 N.T. 47.
16 N.T. 89.
17 N.T. 91. The officer arrived at the residence at 8:15 p.m. N.T. 88-89. The Defendant
finally came downstairs and made himself available to the officer at 8:20. N.T. 90.
18 N.T. 103.
19 N.T. 94-95.
20 N.T. 91-92.
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1999 CRIMINAL 1991
At about 8:35 p.m., the Defendant failed a field sobriety test administered at the
Lemoyne Borough police station,21 and at 9:27 p.m. a sample of his blood was taken
at Holy Spirit Hospital ;22 upon subsequent analysis, it yielded a blood alcohol content
result of .20%.21
The Defendant claimed to police that he had consumed a half gallon of rum
after the accident .2' He advised them that he was a "victim of the system. 121
On behalf of the Commonwealth, Dr. G. Thomas Passananti was called to testify
as an expert witness on the subject of absorption and dissipation rates of alcohol.28
Dr. Passananti is a board-certified forensic toxicologist, who teaches toxicology to
graduate students and medical students at Hershey Medical School .2' He holds a
bachelor's degree in chemistry, a master's degree in chemistry, and a Ph.D degree in
chemistry from Penn State University, and was a postdoctoral fellow at the University
21 N.T. 97-101,118.
22 N.T. 102.
23 N.T. 127.
24 N.T. 104-105.
' N.T. 104. The Defendant did not testify at trial; a female companion testified that he
had drunk from a half -gallon container of rum after the accident, and then made himself a
drink. N.T. 151.
21 Commonwealth v. Mase, No. 1999 Criminal 1991, Trial Testimony of G. Thomas
Passananti, Ph.D. N.T. 7 (hereinafter Passananti N.T. ).
27 Passananti N.T. 3. A toxicologist is a scientist who studies the effect of toxic substances
on the body. Passananti N.T. 3.
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1999 CRIMINAL 1991
of Michigan Medical School in clinical and forensic toxicology, and in clinical
chemistry.28 He has published two landmark papers in connection with the
pharmacology of alcohols.29
Dr. Passananti testified that alcohol dissipates from a person's body at the rate
of .018% per hour on average;30 he further testified that each ounce of 100 -proof
whiskey or each 12 -ounce bottle of beer will raise the average person's blood alcohol
level .025%.31 He was asked the following hypothetical question:
Q At 9:27, blood is drawn with a result of a .20. The
person was involved in an accident at 8:06 p.m. That's an
hour and sixteen minutes - let's say an hour -and -a half time
limit. Given those facts, are you able to determine what
that person's blood alcohol content would have been at the
time of the accident?
A If I had one fact, I could tell you.
Q What fact?
A When he stopped drinking.
Q Okay. Let us assume in this hypothetical that he
had his last drink immediately prior to the accident, say at
8:05.
A I can give you an opinion.32
Passananti N.T. 4.
Passananti N.T. 4.
3o Passananti N.T. 8-10.
31 Passananti N.T. 15.
32 Passananti N.T. 13. The jury was not, of course, required to accept the Defendant's
position that he had drunk after the accident. Commonwealth v. Edwards, 521 Pa. 134, 555
A.2d 818 (1989).
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1999 CRIMINAL 1991
Dr. Passananti gave the opinion that the Defendant's blood alcohol level would have
been .20% at the time of the accident.33 Even assuming that the Defendant had had
four drinks rather than one drink in his stomach, unabsorbed, at the time of the
accident, Dr. Passananti testified that the blood alcohol level would have been .10%.34
Following deliberations, the jury found the Defendant guilty of driving under
the influence of alcohol to a degree which rendered him incapable of safe driving.35
It found him not guilty of driving under the influence while the amount of alcohol by
weight in his blood was .10% or greater."
For present purposes, the offense of driving under the influence "has two
elements: (1) driving, operating, or being in control of a vehicle ... and (2) either ...
being under the influence of alcohol to such an extent that one is incapable of safe
driving, or ... having an amount of alcohol in the blood that is 0.10 percent by weight
or greater." Commonwealth v. Labelle, 397 Pa. Super. 179, 194, 579 A.2d 1315, 1322
(1990), rev'd on other grounds, _ Pa. _, 612 A.2d 418 (1992). The Defendant admitted
the first element, and the circumstances of (a) his being involved in an accident
33 Passananti N.T. 15. In arriving at his opinion, Dr. Passananti utilized an estimate of
Defendant's weight as between 140 and 150 pounds. Passananti N.T. 22.
34 Passananti N.T. 17-18.
35 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a)(1).
' Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a)(4).
C4
1999 CRIMINAL 1991
resulting from his loss of control of his car," (b) his flight from the scene,3S (c) his
subsequent erratic and reckless driving," (d) his manifest intoxication a few minutes
after the accident,40 (e) his failure of a field sobriety test at the police station '41 and
(f) his blood alcohol level test result of .20%42 enabled the trier of fact to conclude
that the Commonwealth had established beyond a reasonable doubt the second element
of the offense, in the form of his being under the influence of alcohol to such an extent
that he was incapable of safe driving. "The factfinder is free to believe all, part or
none of the evidence,i43 and the jury was not required to accept the proposition that
Defendant had drunk a half gallon of rum after the accident and that the enumerated
circumstances were unrelated to consumption of alcohol prior to the occurrence which
37 See Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569 (1990), allocatur den'd
527 Pa. 646, 593 A.2d 419 (1990).
' See Commonwealth v. Jones, 298 Pa. Super. 199, 444 A.2d 729 (1982).
39 See Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569 (1990); Commonwealth
v. Fick, 391 Pa. Super. 625, 571 A.2d 1091 (1990).
40 See Commonwealth v. Hanes, 397 Pa. Super. 38,579 A.2d 920 (1990). "[A] police officer,
if he has perceived a defendant's appearance and acts, is competent to testify to his opinion
as to the defendant's state of intoxication and to his ability to drive a vehicle safely."
Commonwealth v. Neiswonger, 338 Pa. Super. 625, 629, 488 A.2d 68, 70 (1985).
" See Commonwealth v. Allen, 394 Pa. Super. 127, 575 A.2d 131 (1990), allocatur denied,
526 Pa. 627, 584 A.2d 311 (1990); Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091
(1990).
42 See Commonwealth v. Allen, 394 Pa. Super. 127, 575 A.2d 131 (1990); Commonwealth v.
Johnson, 376 Pa. Super. 121, 545 A.2d 349 (1988).
43 Commonwealth v. Edwards, 521 Pa. 134, 146, 555 A.2d 818, 824 (1989).
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1999 CRIMINAL 1991
resulted in his arrest.
With respect to the admissibility of the blood alcohol test result, it is provided
by statute that "[i]n any ... criminal proceeding in which the defendant is charged with
a violation of section 3731 [of the Vehicle Code, proscribing driving under the
influence] ..., the amount of alcohol ... in the defendant's blood, as shown by chemical
testing of the person's ... blood ..., which tests were conducted by qualified persons
using approved equipment, shall be admissible in evidence." Act of June 17, 1976, P.L.
162, §1, as amended, 75 Pa. C.S. §1547(c). The weight to be accorded such results is
a matter for the jury," and in the present case the jury exercised its responsibility
in this regard by giving the Defendant the benefit of the doubt on the question of
whether the test, in combination with expert testimony, established a blood alcohol
level of .10% or more at the time of driving. It does not follow from the jury's acquittal
on this point, however, that the test result was inadmissible or entitled to no
weight.4b
For these reasons, the following Order will be entered:
ORDER OF COURT
AND NOW, this Jj� day of March, 1993, after careful consideration of
Defendant's post -verdict motions in arrest of judgment and for a new trial, the motions
" Commonwealth v. Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986), allocatur denied,
517 Pa. 594, 535 A.2d 83 (1987).
" Cf. Commonwealth v. Johnson, 376 Pa. Super. 121, 545 A.2d 349 (1988).
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1999 CRIMINAL 1991
are DENIED. The Probation Office is requested to prepare a short presentence
investigation report, and Defendant is directed to appear for sentencing at the call of
the District Attorney.
Jeffrey Baxter, Esq.
Assistant District Attorney
Patrick F. Lauer, Jr., Esq.
Attorney for Defendant
Probation Office
:rc
BY THE COURT,
s/ J. Wesley Oler, Jr.
J.
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