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HomeMy WebLinkAboutCP-21-CR-0002204-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DAVID GARRY : CP-21-CR-2204-2011 IN RE: OPINION AND ORDER OF COURT Masland, J., May 8, 2013:-- Before the court is the Defendant’s Motion to Vacate Finding of Guilt with respect to Count 1 Driving Under the Influence, General Impairment and Count 3, Maximum Speed Limits. After a thorough review of the Motion, the Commonwealth’s Answer and New Matter and the pertinent case law, we grant Defendant’s Motion in accordance with the following opinion. Background A jury trial was held on January 29-31, 2013 on the aforesaid charges as well as Count 2 Driving Under the Influence, General Impairment, with refusal, a second offense. After almost eleven hours of deliberation the jury declared itself hopelessly deadlocked and it was clear to the court that further deliberations would be futile. Therefore, pursuant to Pa.R.Crim.P. 605 we declared a mistrial on Count 2 and took under advisement the final resolution of Counts 1 and 3, directing the parties to brief the issue of the court’s ability to rule on those counts and the ramifications thereof. On February 27, 2013, after the parties agreed to submit the matter to the court without briefs we found the Defendant guilty on Counts 1 and 3 , and directed the Defendant to appear for sentencing on March 26, 2013. The date of sentencing was changed at the request of Defense Counsel to March 12, 2013. CP-21-CR-2204-2011 At that time, the Defendant requested a general continuance of sentencing to enable him to file a motion to vacate our order of February 27, 2013. We granted the request and directed Defendant to file an appropriate motion after receipt of a partial transcript from the trial and further directed the District Attorney’s Office to file a response. On April 1, 2013, Defendant filed a Motion to Vacate Finding of Guilt to which the Commonwealth filed an Answer and New Matter on April 8, 2013. Discussion At the time of the trial, based on our review of the statute, 75 Pa.C.S. Section 3802(a)(1), Driving Under the Influence (DUI) General Impairment, as well as our review of the Suggested Jury Instructions, it appeared clear that there was, in essence, only one count of DUI despite the fact that two were charged in the information. Therefore, we instructed the jury as follows: If, and only if, you find that the Commonwealth has proven beyond a reasonable doubt the two elements of Driving Under the Influence, you must then decide whether the Commonwealth has proven the following additional element beyond a reasonable doubt by checking the appropriate line “yes” or “no” on the verdict form. The additional element is: (a) that the Defendant refused to give a sample for testing. Pa.SSJI (Crim) 17.3802(a)(1)(Crim). Despite our better judgment, we were persuaded by counsel to proceed with a ruling on Counts 1 and 3, in large measure to bring this matter to a final resolution. The Defendant’s Motion to Vacate gives us the opportunity to revisit and correct our earlier decision to proceed. We are tempted to follow Abraham Lincoln’s advice -- “if you make a bad bargain, hug it all the tighter;” however, our -2- CP-21-CR-2204-2011 review of the law convinces us that it is often better and in this case necessary to state “we stand corrected.” At the core of our decision is the persuasive Superior Court opinion in Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011). In short, we concur with their holding that it is improper to charge defendants with two violations of Section 3802(a)(1). The court explained its rationale as follows: [A]ll that necessary when charging DUI–general impairment where a breath/blood test refusal occurred is that the Commonwealth file a criminal information that includes the single count of Section 3802(a)(1) that subjects the defendant to the most serious punishment. Charging the identical criminal offense twice in the criminal information to indicate that one count is alleging that a breath test/blood test refusal transpired constituted duplication of counts and creates possible double jeopardy implications if the individual is sentenced on each count. Id. at 894. (Citation omitted) Of course, in the instant case, we are not faced with the double jeopardy implications at sentencing because of the declaration of a mistrial. Rather, the question is whether the court can usurp the function of the jury and determine the threshold issue of general impairment itself exists after a mistrial has been declared. Our ruling of February 27, 2013, properly noted “the court will not speculate on the jury’s inability to reach a unanimous verdict with respect to Count 2, nor will we infer that the deadlock focused on any particular element of the offense.” Unfortunately, we were in the right pew but in the wrong church when we proceeded to make our finding of guilt. We are constrained to conclude that the jury did not reach a unanimous decision on the threshold question -3- CP-21-CR-2204-2011 regarding impairment. Logically, if they had reached a decision on the two elements of general impairment, they would have proceeded to the question of refusal pursuant to our instructions. If the deadlock occurred thereafter, the resolution would have been not to declare a mistrial on the underlying elements but merely to declare that the enhanced penalty could not be imposed. Ultimately, the court cannot supplant its findings on general impairment when the jury has tried and failed to render a verdict. To do so requires us to ignore their deliberations or speculate that they had reached a decision on the initial elements. We were wrong to take that step and pleased to have the opportunity to correct it. Conclusion Accordingly, we find that our order of February 27, 2013, must be vacated and a mistrial declared on all counts. ORDER OF COURT AND NOW, this day of May, 2013, upon consideration of Defendant’s Motion to Vacate and the Commonwealth’s Answer and New Matter GRANT DIRECT thereto, we the Motion and as follows: VACATED. (1) The order of February 27, 2013, is hereby GRANT (2) As a matter of manifest necessity, we a mistrial on all counts at the above docket. (3) The District Attorney shall bring this matter to trial in a timely fashion pursuant to the Rules of Criminal Procedure and shall proceed -4- CP-21-CR-2204-2011 according to the guidelines established by Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011). By the Court, Albert H. Masland, J. John C. Dailey, Esquire Assistant District Attorney Timothy M. Barrouk, Esquire For Defendant :sal -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DAVID GARRY : CP-21-CR-2204-2011 ORDER OF COURT AND NOW, this day of May, 2013, upon consideration of Defendant’s Motion to Vacate and the Commonwealth’s Answer and New Matter GRANT DIRECT thereto, we the Motion and as follows: VACATED. (1) The order of February 27, 2013, is hereby GRANT (2) As a matter of manifest necessity, we a mistrial on all counts at the above docket. (3) The District Attorney shall bring this matter to trial in a timely fashion pursuant to the Rules of Criminal Procedure and shall proceed according to the guidelines established by Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011). By the Court, Albert H. Masland, J. John C. Dailey, Esquire Assistant District Attorney Timothy M. Barrouk, Esquire For Defendant :sal