HomeMy WebLinkAboutCP-21-CR-0002119-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
:
: CP-21-CR-2119-2010
:
: CHARGE:
: (1) DUI, GENERAL IMP.
v. : (2) DUI – HIGHEST RATE
: (3) DRIVING ON ROADWAYS LANED FOR
: TRAFFIC (SUMMARY)
: (4) OPERATION OF VEHICLE WITHOUT
: OFFICIAL CERTIIFCATE OF
: INSPECTION (SUMMARY)
STEVEN KEITH KUHN :
OTN: L553303-2 : AFFIANT: CPL. DOUGLAS HOWELL
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
EBERT, J., June 29, 2012 –
PROCEDURAL HISTORY
Cpl. Douglas Howell of the Pennsylvania State Police filed a criminal complaint against
the Defendant May 26, 2010. The complaint consisted of three charges: (1) Driving Under the
Influence-Highest Rate, (2) Driving on Roadways Laned for Traffic, and (3) – Operation of
Vehicle without Official Certificate of Inspection. These charges were bound over to Court
when the Defendant waived preliminary hearing on July 26, 2010. The Commonwealth filed an
information against the Defendant on October 12, 2010, which added an additional count at
Count 1 of Driving Under the Influence – General Impairment.
The Defendant filed an Omnibus Pre-Trial Motion to Suppress on June 9, 2011. The
Motion requested the Court to suppress the blood sample obtained from the Defendant on April
16, 2010, claiming that the State Police did not have probable cause to arrest the Defendant. The
Defendant waived his right to jury trial. After several continuances, a non-jury trial was held on
November 9, 2011. It was agreed by the parties that the suppression hearing would be held
immediately before the non-jury trial. The Court denied the Defendant’s Omnibus Pre-Trial
Motion to Suppress. The testimony from the suppression hearing was then incorporated into the
trial testimony. At the conclusion of the trial, at which the Defendant testified, the Court found
the Defendant guilty of all charges.
A pre-sentence investigation was prepared and the Defendant was sentenced on
December 20, 2011. At sentencing, the Court noted that Count (1) Driving Under the Influence
– General Impairment merged for sentencing purposes with Count (2) Driving Under the
Influence – Highest Rate. The Sentence of the Court on Count (2) Driving Under the Influence –
Highest Rate, was that the Defendant pay the costs of prosecution, a fine of $1,000.00 and
undergo imprisonment in the Cumberland County Prison for a period of not less than 3 months
nor more than 6 months. That sentence was run consecutive to a sentence the Defendant was
already serving at CP-21-CR-3041-2010. This was a standard range sentence. As indicated in
th
the pre-sentence investigation, this was the Defendant’s 8 lifetime Driving Under the Influence
conviction. At the time of sentencing, the Defnedant’s prior record score was 5. On the charge
at Count (3), Driving on Roadways Laned for Traffic, the Defendant was sentenced to pay the
costs of prosecution, and a fine of $25.00. On Count (4) Operation of Vehicle Without Official
Inspection Certificate, the sentence of the Court was that the Defendant pay the costs of
prosecution and a fine of $25.00.
The Defendant filed a Motion to Reconsider/Modify Sentence on December 30, 2011,
which was denied by Order of Court dated January 5, 2012. The Defendant then filed a Notice
of Appeal to the Superior Court on February 3, 2012. On May 21, 2012, after this Court had
previously granted two extensions of time in which to file his Concise Statement of Errors
Complained of on Appeal, the Defendant filed the following Concise Statement:
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1. There was insufficient evidence as a matter of law
to support the verdicts of guilt for driving under the
influence (2 counts), and the summary vehicle code
offenses of driving on roadways laned for traffic and
operation without official inspection certificate in that
there was (1) no evidence of bad driving or that the
defendant was incapable of safe driving prior to being
stopped and in fact the officer was occupied assisting
with a fallen tree upon the roadway and setting up flares
when he first observed the defendant, (2) the basis
of the traffic stop for driving on roadways laned for
traffic was not supported by the evidence and was
justified and necessitated by the fallen tree obstructing
the defendant’s route of travel and the apparent
ongoing hazardous conditions requiring reduced speed
and departure from strict compliance with the vehicle code
dependent upon the prevailing traffic, weather and
roadway conditions confronting the motorist, (3) the
expired vehicle inspection sticker was discovered only
after the vehicle stop here and defendant was not the
registered owner, was otherwise properly licensed and
insured and he was authorized to operate same.
2. The verdicts of guilt for the offenses were likewise
against the weight of the credible evidence based on
numerous errors in recall and detail by the arresting
officer/trooper when weighed against the testimony
of the defendant.
3. The court erred by denying the omnibus pretrial motion
to suppress based upon the above
4. The sentences were excessive; the court erred in
denying the defendant’s motion to reconsider/modify
sentence for the reasons set forth therein
including that sentences above the mandatory
minimum and consecutive in nature were not
warranted by the facts and circumstances of the
individual cases (DUI double first offenses for
mandatory minimum sentencing purposes
within last ten years.)
This opinion is written pursuant to Pa.R.A.P. 1925 (a).
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STATEMENT OF FACTS
On April 16, 2010, a powerful thunderstorm passed through Monroe Township,
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Cumberland County causing fallen trees and debris to obstruct certain roadways. On the
evening of April 16, 2010 at approximately 7:00 P.M., Corporal Douglas Howell (“Cpl.
Howell”) a patrol supervisor left his desk at the station and headed out to place road flares near
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the fallen trees. Cpl. Howell went to Park Place, Monroe Township after receiving a call that a
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downed tree was blocking the entire roadway. The blocked roadway was a lined, two-lane
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country road. When Cpl. Howell’s arrived at the fallen tree he noticed that firemen had already
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begun using chainsaws to clear the debris. At this time, Cpl. Howell stated that the weather was
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windy with a little bit of rain, but also a bright sun. Cpl. Howell began placing road flares in
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both the westbound and eastbound directions leading up to the fallen tree.
While placing flares on the eastbound section of the road beyond the fallen tree, Cpl.
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Howell noticed an oncoming Chevy Impala. As Cpl. Howell approached the Chevy Impala, the
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driver, later identified as Steven Keith Kuhn (“Defendant”), rolled down his window. Cpl.
Howell, at a distance of six-feet, noticed that Defendant was wearing dirty pants and no shirt
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while looking sleepy and disheveled. Cpl. Howell asked the Defendant what he was doing and
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Defendant answered that he could not see. Although Cpl. Howell felt uneasy about
1
In Re: Suppression Hearing and Non-Jury Trial, Nov. 9, 2011, 5 [hereinafter N.T. __].
2
N.T. 5.
3
N.T. 5.
4
N.T. 6.
5
N.T. 6.
6
N.T. 7.
7
N.T. 6.
8
N.T. 6.
9
N.T. 8.
10
N.T. 7.
11
N.T. 8.
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Defendant’s mannerisms and appearance, he decided to waive Defendant on and finish placing
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the road flares.
Cpl. Howell finished placing the road flares, got back into his vehicle, and turned down
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Speedway Drive to respond to another call. Cpl. Howell testified that Speedway Drive is a
double yellow line, two-lane road in Monroe Township relatively close to his previous
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location. En route to the new call, Cpl. Howell found himself behind Defendant’s Chevy
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Impala. The Chevy Impala was traveling at 10 mph in a 35 mph zone while driving three-to-
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four feet over the center double yellow line. While Cpl. Howell was behind Defendant, a truck
coming in the opposite direction had to pull off to the shoulder of the road to avoid a collision
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with the Chevy Impala. After the Chevy Impala passed the point where the truck had stopped,
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Cpl. Howell activated his lights and pulled over Defendant. At the time of the stop, Cpl.
Howell testified that the rain had stopped and there was no major debris on Speedway Drive that
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would have caused Defendant to drive the way he had been driving.
After Cpl. Howell pulled over Defendant, he approached the Chevy Impala and explained
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to Defendant why he had been pulled over. Cpl. Howell instructed Defendant to turn off the
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vehicle. Defendant turned off the vehicle and placed the keys in a cup holder. Cpl. Howell
testified that Defendant’s actions appeared slow and sluggish and he needed assistance in
retrieving his identification even though Cpl. Howell could see Defendant’s license from outside
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N.T. 8.
13
N.T. 8.
14
N.T. 9.
15
N.T. 9.
16
N.T. 9-10, 22.
17
N.T. 10-11.
18
N.T. 10-11.
19
N.T. 9, 12, 15.
20
N.T. 27.
21
N.T. 27.
22
N.T. 27.
5
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of the car where he was standing. Cpl. Howell stated that he could smell an extremely strong
odor of alcohol coming out of the car and saw that there were four Busch beer cans in the
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interior. When Cpl. Howell asked Defendant how many beers he had consumed that evening,
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Defendant responded, “I’m not going to lie, I’ve had a few.” Cpl. Howell then asked
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Defendant for his keys, however, Defendant could not find the keys. Cpl. Howell allowed
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Defendant to look around his car before telling Defendant they were right next to him. Also,
Cpl. Howell noticed that the inspection sticker on the vehicle had expired several months
2829
before. Cpl. Howell then took Defendant’s keys and went back to run a check on Defendant.
After returning to Defendant’s vehicle, Cpl. Howell asked Defendant to exit the car to perform
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field sobriety tests. Defendant could “barely right himself on his way out” of the car and “had
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trouble with his balance and had to grab the vehicle to balance.” Cpl. Howell decided to not
have Defendant perform field sobriety tests due to what appeared to be previous injuries that
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could compromise the results. At this point, Cpl. Howell decided to arrest Defendant for
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DUI.
Within two hours of the arrest at approximately 7:49 P.M., Cpl. Howell took Defendant
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to Carlisle Regional Medical Center where Defendant consented to a chemical test. An
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analysis of Defendant’s blood revealed his blood alcohol content to be .267 percent. Upon
23
N.T. 27.
24
N.T. 28.
25
N.T. 28.
26
N.T. 29.
27
N.T. 29
28
N.T. 28.
29
N.T. 20.
30
N.T. 29.
31
N.T. 29-30.
32
N.T. 30.
33
N.T. 30.
34
N.T. 31.
35
N.T. 41, Commonwealth Exhibit 3.
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receiving the results of Defendant’s chemical test, Cpl. Howell charged Defendant with the
36
above crimes.
DISCUSSION
A. LEGALITY OF THE STOP
Police officers in Pennsylvania are permitted to effectuate a stop if they have reasonable
37
suspicion that a violation of the motor vehicle code is occurring or has occurred. Prior to 2004,
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Courts had held that officers were required to have probable cause of a violation before
effectuating a stop. This was a high burden. However, the language of 75 Pa. C.S.A. §6308(b)
was amended from “articulable and reasonable grounds” to “reasonable suspicion” effective
39
February 1, 2004. This change reflected the legislature’s concerns about injuries caused by
drunk driving and subsequently created a lower burden for officers when making investigatory
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stops.
When determining reasonable suspicion, innocent facts can combine under the totality of
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the circumstances to meet the burden. Additionally, officers are required to give “specific
observations which in conjunction with reasonable inferences derived from those observations,
led [them] reasonably to conclude, in light of his [or her] experience that criminal activity was
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afoot.” Cpl. Howell, a patrol supervisor in the Pennsylvania State Police, first observed the
Defendant driving a Chevy Impala near the location where he was placing warning flares in the
vicinity of a fallen tree. Initially Howell noted that the Defendant was disheveled and looked
36
N.T. 43.
75 Pa.C.S.A. §6308 (b).
37
Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002).
38
Pennsylvania 2003 Legislative Service, Act No. 2003-24, Approved Sept. 30, 2003.
39
Commonwealth v. Sands, 887 A.2d 261, 271 (PA. Super. 2005).
40
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006) (quoting Commonwealth v.
41
Cook, 735 A.2d 673, at 676 (1999)).
Commonwealth v. Reppert, 814 A.2d 1196, 1204 (Pa. Super., 2002) (citing Commonwealth v.
42
Cook, 735 A.2d 673, at 677 (1999)).
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sleepy and that he felt uneasy about the Defendant’s mannerisms and appearance. However
given the fact that he was dealing with the fallen tree, he decided to waive the Defendant on. A
short time later, Cpl. Howell saw the same Chevy Impala traveling 10 miles per hour in a 35 mile
an hour zone. More importantly, the Chevy Impala was three to four feet over the center line of
a two lane roadway. Cpl. Howell observed that a truck approaching the Defendant from the
opposite direction had to pull off the road to avoid collision. Having viewed what was clearly a
violation of §3309(1) of the Vehicle Code – Driving on Roadways Laned for Traffic, 75
Pa.C.S.A. §3309(1), Cpl. Howell had probable cause to stop the Defendant’s vehicle in order to
cite him for this offense.
Having made the stop, Cpl. Howell approached the Defendant and was able to observe:
1. Defendant’s slow and sluggish actions.
2. His need for assistance in retrieving his identification.
3. An extremely strong odor of alcohol coming from Defendant’s car.
4. Four Busch beer cans in the interior of Defendant’s car.
Cpl. Howell then asked the Defendant how many beers he had had. The Defendant
responded “I’m not going to lie, I’ve had a few.” Cpl. Howell then had the Defendant exit his
car to perform field sobriety tests. The Defendant could “barely right himself on his way out”
and “had trouble with his balance and had to grab the vehicle to balance.”
Cpl. Howell’s direct observations of the Defendant’s driving provided him with probable
cause to stop the car for a violation of 75 Pa.C.S.A. §3309(1) – Driving on Roadways Laned for
Traffic. Having once made the legal stop, Cpl. Howell performed additional investigation which
brought him in close proximity to the Defendant so that he could observe his actions and
demeanor. There is little question that based on Cpl. Howell’s observations of the Defendant, he
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clearly possessed reasonable suspicion that the Defendant was Driving Under the Influence. As
stated in Commonwealth v. Feczko, 10 A.3d 1285, 1289 (Pa. Super. 2010) “further investigation
almost invariably leads to the most incriminating type of evidence.”
The Defendant testified at the suppression hearing. The Defendant admitted that he was
driving the Chevy Impala, that he did have an encounter with Cpl. Howell and that he was
driving on Speedway Drive. The Defendant went on to testify that while he was driving at 10
miles an hour, it was because he had to drive around a section of a 12 foot high wall from the
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Williams Grove Speedway that had been blown into the roadway by the storm. Interestingly,
Cpl. Howell testified that he saw no wall in the roadway and absolutely no major debris that
44
would have caused the Defendant to drive in the middle of the roadway. The Defendant stated
45
there never was a truck approaching him from the opposite direction on Speedway Drive and
that he was already stopped in the parking lot of the Speedway trying to light a cigarette when he
46
was approached by Cpl. Howell.
As is often stated, the trier of fact, while passing upon the credibility of witnesses and the
weight of evidence produced, is free to believe all, part or none of the evidence. Commonwealth
v. Toland, 995 A.2d 1242 (Pa.Super. 2010). In this case, this Court finds that the Defendant’s
testimony is simply not credible most likely because his memory was impaired by his high level
of intoxication. Accordingly, the stop and arrest of the Defendant were legal and the Court did
not err in denying the Defendant’s Omnibus Pre-Trial Motion to Suppress.
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N.T. 20
44
N.T. 14-15
45
N.T. 21
46
N.T. 23
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B. SUFFICIENCY OF THE EVIDENCE
On a challenge to the sufficiency of the evidence, the law is well settled. All the
evidence and all reasonable inferences drawn therefrom must be viewed in the light most
favorable to the Commonwealth as the verdict winner. Commonwealth v. Weir, 738 A.2d 467
(Pa. Super. 1999). Evidence will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the accused beyond a reasonable
doubt. The Commonwealth need not preclude every possibility of innocence or establish the
Defendant’s guilt to a mathematical certainty. The trier of fact, while passingupon the
credibility of the witnesses and weight of the evidence produced, is free to believe all, part, or
none of the evidence. Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010),
Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005).
The Vehicle Code provides as follows:
§3802. Driving Under the Influence of Alcohol
or Controlled Substance
(a)General impairment.--
(1)An individual may not drive, operate, or
be in actual physical control of the movement
of a vehicle after imbibing a sufficient amount
of alcohol such that the individual is rendered
incapable of safe driving, operating, or being
in actual control of the movement of the vehicle.
(c) Highest rate of alcohol. –
An individual may not drive, operate or be in
actual physical control of the movement of a
vehicle after imbibing a sufficient amount of
alcohol such that the alcohol concentration in
the individual’s blood or breath is 0.16%
or higher within two hours after the individual has
driven, operated or been in actual physical
control of the movement of the vehicle.
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§3309. Driving on Roadways Laned for Traffic
Whenever any roadway has been divided into
two or more clearly marked lanes for traffic
the following rules in addition to all others
not inconsistent therewith shall apply:
(1) Driving within single lane –
A vehicle shall be driven as nearly as
practicable entirely within a single lane
and shall not be moved from the lane
until the driver has first ascertained that
the movement can be made with safety.
§4703. Operation of Vehicle Without Official Certificate
of Inspection
(a) General Rule
–
Except as otherwise provided in this section,
no motor vehicle required to bear current
registration plates issued by this Commonwealth…
shall be moved on a highway … unless the vehicle
displays a currently valid certificate of inspection
issued under this chapter.
We will now address the quantum of evidence supporting the Defendant’s convictions for
each offense seriatim.
1. Incapable of Safe Driving
On the charge of Driving Under the Influence - General Impairment - Incapable of Safe
Driving, the Commonwealth had to prove the following elements beyond a reasonable doubt:
First, that the Defendant drove, operated or was in
actual physical control of the movement of a vehicle
upon a highway or trafficway.
Second, while the Defendant drove, operated or was in
physical control of the vehicle, he had imbibed
sufficient amount of alcohol such that he was
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incapable of safe driving, operating, or being in actual
physical control of the movement of the vehicle.
Pa. SSJI (Crim) 17.3802 (a) (1)
With regard to this charge, the Defendant’s argument has consistently been that the
Commonwealth presented no evidence of his “bad driving” or that he was incapable of safe
driving. However, the evidence and all the reasonable inferences drawn therefrom must be
viewed in the light most favorable to the Commonwealth as the verdict winner. As is often
stated, “Under Pennsylvania law, the phrase “incapable of safe driving” has a precise legal
meaning. The Defendant need not have been drunk or severely intoxicated or driving wildly or
erratically in order to commit this crime. It is enough if the alcohol has substantially impaired
the Defendant’s normal mental or physical faculties that were essential to safe operation of his
vehicle. Thus, when deciding whether the Commonwealth has met its burden of proof, [The fact
finder might ask itself], “Were the Defendant’s thinking, judgment, physical skills, ability to
perceive and react to changes in the situation or other faculties impaired?” Pa.SSJI 17.3802(a)
(1)
The evidence at trial established beyond a reasonable doubt the following:
1. The Defendant was driving a motor vehicle.
2.The Defendant was straddling the center line of a two lane roadway.
3.The Defendant forced an oncoming vehicle to pull to the side of the road to avoid
collision.
4.The Defendant’s physical actions were slow and sluggish.
5.The Defendant needed assistance in retrieving his identification.
6. There was an extremely strong odor of alcohol coming from the Defendant’s car.
7.Four Busch beer cans were observed in the interior of the Defendant’s car.
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8.The Defendant admitted that he had been drinking and stated “I’m not going to lie, I
had a few.”
9.The Defendant was extremely unstable and had to hold onto the vehicle to maintain
his balance.
10.Cpl. Howell, a very experienced officer, was of the opinion that the Defendant
was under the influence of alcohol which rendered him incapable of safe driving.
11.The Defendant’s blood alcohol content was tested within two hours of
driving, and the alcohol concentration in his whole blood was 0.267 percent.
These factors are clearly indicative of a person whose motor skills are impaired by having
ingested alcohol. The failure to control one’s motor skills circumstantially establishes that the
person cannot drive safely. Generally speaking, to establish the second element of the offense as
defined above, it must be shown that the alcohol imbibed substantially impaired the normal
mental and physical faculties required to safely operate a vehicle. Substantial impairment in this
context means a diminution or enfeeblement in the ability to exercise judgment to deliberate or
to react prudently to changing circumstances and conditions. Evidence that the driver was not in
control of himself, such as being unable to maintain his balance, having slow and sluggish
physical movement, and needing assistance to retrieve his identification may establish this
element even in cases where there is no evidence of erratic or unsafe driving. See
Commonwealth v. Smith, 831 A.2d 636 (Pa. Super. 2003) citing Commonwealth v. Palmer, 751
A.2d 223 (Pa. Super. 2000).
Viewing all the evidence in the light most favorable to the Commonwealth, it is clear
beyond any reasonable doubt that the Defendant was guilty of the offense of Driving Under the
Influence of Alcohol – General Impairment.
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2. Alcohol Concentration – Highest Rate
Turning to the charge of Driving Under the Influence – Highest Rate, the Commonwealth
must prove the following three elements beyond a reasonable doubt:
First, that the Defendant imbibed alcohol;
Second, that the Defendant then drove, operated
or was in actual physical control of the movement
of a vehicle upon a highway or trafficway;
and Third, that within two hours after driving,
operation or actual physical control, the alcohol
concentration in the Defendant’s blood or breath
was .16% or higher.
Pa.SSJI (Crim) 17.3802(a) (2)
“A true weight of evidence challenge concedes that sufficient evidence exists to sustain
the verdict but questions which evidence is to be believed.” Commonwealth v. Charlton, 902
A.2d 554, 561 (Pa. Super. 2006). In this case, it is clear that the Defendant imbibed alcohol. He
admitted “I had a few.” In regard to the second element, there is no doubt whatsoever that he
was driving the Chevy Impala when Cpl. Howell stopped his car. He admitted he was driving
and there was no one else in the car.
Finally we turn to the third element. Was the Defendant’s blood alcohol concentration
0.16% or higher within two hours of his actual driving? Cpl. Howell testified that after arresting
the Defendant he took him to the Carlisle Regional Medical Center to obtain a blood sample.
The blood sample was taken at 7:49 p.m. This was forty-nine minutes after Cpl. Howell’s first
47
encounter with the Defendant driving. The blood sample was sent to the Pennsylvania State
Police Harrisburg Regional Forensic Laboratory for testing. This Laboratory is a certified
laboratory authorized to perform blood alcohol analysis. John Evans, a forensic scientist
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N.T. 31.
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supervisor at the Harrisburg Regional Laboratory with over 23 years’ experience, was
recognized as an expert in the field of blood alcohol analysis. He tested the Defendant’s blood
sample and filed a report (Commonwealth Exhibit #3) which indicated that the amount of ethyl
alcohol in the Defendant’s blood was .267 percent. Based on this evidence, this Court found that
the Defendant’s blood alcohol concentration within two hours of his actual driving to be 0.267
percent. The Defendant did not present any rebuttal expert testimony challenging the
Commonwealth’s expert. The Defendant was guilty of this charge beyond all doubt.
3. Roadways Laned for Traffic/Inspection Sticker
Cpl. Howell testified that Speedway Drive is a two laned road in Monroe Township
marked by a double yellow line in the center of the roadway. He saw the Defendant driving the
Chevy Impala three to four feet over the center double yellow line. He testified that a truck
coming in the opposite direction had to actually pull off onto the shoulder of the road to avoid a
collision with the Defendant’s vehicle. This evidence clearly establishes that the Defendant was
not driving his vehicle “as nearly as practicable entirely within a single lane” on Speedway Drive
which was divided into two marked lanes for traffic. 75 Pa.C.S.A. §3309(1).
After stopping the Defendant’s vehicle, Cpl. Howell approached the vehicle and saw that
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“his inspection was out.” Cpl. Howell stated that the inspection sticker had expired several
months before April 16, 2010. Obviously, the vehicle the Defendant was driving was required to
bear a current registration plate issued by the Commonwealth and it was being moved on a
highway when it did not display a currently valid certificate of inspection. 75 Pa.C.S.A.
§4703(a).
Again, the trier of fact, while passing upon the credibility of witnesses and weight of the
evidence produced, is free to believe all, part or none of the evidence. Commonwealth v.
48
N.T. 28.
15
Toland, 995 A.2d 1242 (Pa. Super. 2010), Commonwealth v. Brotherson, 888 A.2d 901 (Pa.
Super. 2005). Cpl. Howell’s testimony proved Defendant guilty of these charges beyond a
reasonable doubt.
With regard to all these charges, the Defendant sufficiency of evidence and weight of
evidence arguments are primarily based upon what he refers to as “numerous errors in recall and
detail” given by Cpl. Howell. Suffice it to say that this Court found Cpl. Howell’s testimony to
be totally credible. The Defendant on the other hand, with a blood alcohol content of .267
percent, states (1) that he never saw an oncoming truck, (2) that he never forced any truck to pull
off to the side of the roadway to avoid collision, (3) that he was actually parked in the Williams
Grove Speedway parking lot trying to light a cigarette when approached by Cpl. Howell, and (4)
that Cpl. Howell failed to see a twelve foot high wall that had blown over and was obstructing
Speedway Drive. This Court finds that Cpl. Howell’s version of the facts is the most credible
and that the Defendant’s memory was severely impaired at the time due to his extreme
intoxication.
More importantly, the Defendant relies on the fact that in the charging portion of the
criminal complaint at Offense #1 the charge states that the vehicle that the Defendant was
driving was a 2005 Toyota Corolla bearing PA registration FSX-2437. There is no question that
the Defendant was not driving such a vehicle. This Court is well aware that criminal complaints
are prepared on word processing machines and that the technique of “cut and paste” is often used
in preparing the standard charge portions of police complaints. This vehicle identification was
clearly a typographical error. However, the rest of the complaint specifically identifies the
Defendant’s vehicle as a Chevy Impala bearing plate number GHT-8010. This was plainly
stated in the probable cause affidavit and throughout the testimony presented at trial. The
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Defendant admitted that he was driving a Chevy Impala and that he did have contact with Cpl.
Howell. This error in the language of one charge in this criminal complaint does not raise any
reasonable doubt as to the Defendant’s guilt.
C. DEFENDANT’S SENTENCE WAS APPROPRIATE
The Defendant argues that the sentence imposed by the Court was excessive. In essence,
he felt that he should be sentenced to the mandatory minimum sentence for the Driving Under
the Influence charge (72 hours) and that this sentence should have run concurrent with a Driving
Under the Influence sentence he received on September 13, 2010, for a conviction at CP-21-CR-
3041-2010.
On the two summary offenses, the Defendant was sentenced to pay the costs of
prosecution and the mandatory $25 fine. These fines are mandated by the Vehicle Code and the
Court had no discretion to sentence otherwise.
On the Driving Under the Influence charges, the Court did merge the general impairment
charge into the sentence the Defendant received for Driving Under the Influence – Highest Rate.
The sentence of the Court was that the Defendant pay the mandatory minimum fine of $1000.00.
Again this fine was mandated by statute. The Defendant was also sentenced to undergo
imprisonment in the Cumberland County Prison for a period of not less than 3 months nor more
than 6 months. This sentence was designated to run consecutive to a sentence of 3 to 6 months
which had been imposed upon the Defendant on September 13, 2011, for another Driving Under
the Influence conviction.
An examination of the Pennsylvania Commission on Sentencing guideline sentencing
form for this Defendant showed a prior record score of 5. The standard range sentence in the
case was 72 hours – 3 months. Accordingly, the Defendant received a standard range sentence.
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While the Defendant argues that he should have received only the mandatory minimum 3 day
sentence, given the Defendant’s prior record, such a sentence was not appropriate. As noted in
the Defendant’s pre-sentence investigation report and admitted in his Motion to
th
Reconsider/Modify Sentence, this conviction was the Defendant’s 8 lifetime conviction for
Driving Under the Influence.
Important in the consideration of this case is the general rule in Pennsylvania, that in
imposing a sentence, the Court has the discretion to determine whether to make it concurrent
with or consecutive to another sentence then being imposed. A challenge to the Court’s
imposing consecutive rather than concurrent sentences does not present a substantial question
regarding the discretionary aspects of the sentence. Commonwealth v. Hoag, 665 A.2d 1212
(Pa. Super. 1995). In setting a sentence, the Court has discretion not only to deviate from
guideline ranges but also to run the sentence concurrently with or consecutive to other sentences
being imposed. Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super. 2003). Given the
Defendant’s prior record, the imposition of a consecutive standard range sentence is hardly
excessive.
CONCLUSION
In appeals such as this one must ask was this verdict and sentence so contrary to the
evidence that it shocks one’s sense of justice? See Commonwealth v. Charlton, 902 A.2d 554,
561 (Pa. Super. 2006). When viewing this case as a whole, the verdict and sentence imposed
does not shock anyone’s sense of justice.
By the Court,
M. L. Ebert, Jr., J.
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District Attorney’s Office
John M. Shugars, Esquire
Senior Assistant Public Defender
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