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HomeMy WebLinkAboutCP-21-CR-0000488-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : STEVEN KEITH KUHN : CP-21-CR-0488-2012 IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925 Masland, J., July 2, 2013:-- Background Following a two-day trial, Defendant, Steven Keith Kuhn, was found guilty by the jury of Count 1 Driving Under the Influence, Highest Rate and was found guilty by the court of Count 2 Driving Under the Influence, General Impairment and Count 3 Driving While Operating Privilege is Suspended or Revoked – DUI Related. The Defendant was sentenced on April 23, 2013 and filed a timely notice of appeal on May 1, 2013. In his concise statement, the Defendant raises the following errors: 1. The trial court committed reversible error by denying Mr. Kuhn’s request that a mistrial be granted when Chief Darrell Goodhart testified that Mr. Kuhn had pled guilty to these charges on two previous occasions. 2. Mr. Kuhn’s conviction on all three counts was against the weight of the evidence as to shock one’s conscience because Mr. Kuhn was not driving his vehicle at the time of the incident. 3. There was insufficient evidence to sustain Mr. Kuhn’s conviction on all three counts because the Commonwealth failed to establish that Mr. Kuhn was intoxicated to the point he was incapable of safely driving at the time that he was operating the vehicle. CP-21-CR-0488-2012 Statement of Facts In the afternoon of August 22, 2011, the Defendant was observed by his neighbor, Donna L. Hockenberry, drinking approximately three beers in the 1 parking lot behind their apartment building. After consuming the beers over the course of about an hour, the Defendant told his neighbor that he was going to “go for a drive around the block” and proceeded to drive out of the parking lot in his 2 gray sedan. Ms. Hockenberry did not see the Defendant again until she was walking her dog at approximately 4:00 p.m. when she noticed the Defendant sitting in his car at the end of the parking lot with his foot on the brake and the 3 engine running. Ms. Hockenberry noted that he was “highly intoxicated” and 4 that he “couldn’t even talk plain.” When she asked him what was wrong, he 5 simply said he was drunk. Ms. Hockenberry offered to move the car because she believed it to be parked illegally “at the end of the parking lot where somebody may have came in and struck him,” but, unfortunately for the 6 Defendant, he refused her offer. By the time Ms. Hockenberry returned from the 7 dog walk the Defendant was “slumped over the wheel completely passed out.” When Earl Wattier, another neighbor of the Defendant, arrived home from work on August 22, 2011 around 5:00 p.m. he found the Defendant in his vehicle in the parking lot with “some drool out of his mouth, and the car was in reverse 1 In re: Transcript of Proceedings Jury Trial, March 19 and 20, 2013, 25-26 (hereafter N.T. ). 2 N.T. 26. 3 N.T. 27. 4 Id. 5 N.T. 28. 6 Id. 7 N.T. 29. -2- CP-21-CR-0488-2012 8 running.” Mr. Wattier “put the car in park, turned off the ignition, put the keys in 9 the cup holder, and then [ ] called 911.” Chief Darrell Goodhart of the Mount Holly Springs Police Department responded to the call for medical assistance, 10 arriving at approximately 5:35 p.m. He observed the Defendant’s car parked in 11 the center of the lot “angled towards a parking space.” Chief Goodhart noted 12 that the Defendant “was drooling, slobbering and was literally unresponsive.” After assisting the emergency personnel in getting the Defendant into the ambulance, Chief Goodhart retrieved ten beer cans from the Defendant’s vehicle three of which were full and in a plastic bag with ice cubes on the right passenger 13 floor. Officer Troy Wiser of the Mount Holly Springs Police Department testified that between 4:40 and 5:00 p.m. on August 22, 2011, he was on route to the police station for a shift change when he observed the Defendant driving his 14 Chevy Impala in an alley not far from the Defendant’s residence. Because he only observed the Defendant for a short period of time, he did not suspect the Defendant was under the influence. Officer Wiser was not present later to observe the Defendant in the parking lot; however, he was dispatched to the 15 Carlisle Regional Medical Center to request a blood test of the Defendant. 16 Officer Wiser observed the Defendant sleeping or passed out in a hospital bed. 8 N.T. 43-44. 9 N.T. 44. 10 N.T. 70. 11 N.T. 73. 12 Id. 13 N.T. 76-77. 14 N.T. 96. 15 N.T. 101. 16 N.T. 101. -3- CP-21-CR-0488-2012 After the officer roused him, the Defendant consented to a blood test; however, 17 he was unable to sign the DL-26. Nevertheless, Officer Wiser believed the Defendant was capable of consenting, in part, because he was able to give the 18 officer contact information for Defendant’s girlfriend. There was nothing exceptional to note about the subsequent draw or testing of Defendant’s blood other than the Defendant’s extremely high BAC of 19 .446 percent. 20 The Defendant’s vehicle was parked askew in a large lot designed to 21 accommodate individuals living in approximately twelve apartments. The 22 parking lot adjoins Creek Avenue which is patrolled regularly by the police. The parking lot is not posted with “Private” or “No Trespassing” signs and is open to 23 the public. With respect to the charge of Driving While Operating Privilege is Suspended or Revoked (DUI-Related), Officer Wiser testified that as of August 22, 2011, the Defendant’s license was suspended as a result of a chemical test 24 refusal. Discussion Although all three errors raised by Defendant lack merit, the issue of the mistrial warrants slightly more attention. Therefore, we will briefly address the 17 N.T. 102-104. 18 N.T. 110-111. 19 N.T. 141. 20 Commonwealth Exhibits 1, 2 and 3. 21 N.T. 24-25 and 167-168. 22 N.T. 71. 23 N.T. 165-166 and 169-170. 24 N.T. 117-118, Commonwealth Exhibit 11. -4- CP-21-CR-0488-2012 sufficiency and weight of the evidence arguments before addressing the question of whether the court erred in not granting a mistrial. A. 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 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 trier of fact while passing upon the credibility of the witnesses and the 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). As is true in all criminal cases, in driving under the influence of alcohol related prosecutions, the Commonwealth can prove any element of an offense by use of wholly circumstantial evidence. Id. The Defendant raises the sufficiency of the evidence with respect to all three counts; however, his only claim of error is that the Commonwealth failed to establish he was incapable of safe driving at the time he was operating the vehicle. Although this is an element of Count 2, Driving Under the Influence – General Impairment and not an element of Count 1, Driving Under the Influence – Highest Rate, we will address the elements of Count 1 in our discussion as well. In short, no matter what element the Defendant contests, the -5- CP-21-CR-0488-2012 Commonwealth provided more than sufficient evidence. The Commonwealth’s evidence showed that the Defendant drank at least three beers before going for a spin. He was found later, passed out behind the wheel of a running car parked askew near the center/entrance of a parking lot open to the public with several empty beer cans in his car. Within two hours, his BAC was determined to be .446 percent. All of this proved the elements of Driving Under the Influence – Highest Rate. In short, the Defendant (1) imbibed alcohol, (2) operated a motor vehicle on a highway or trafficway, and (3) the alcohol concentration in his blood was 0.16 percent or above. The only element that the jury may have had difficulty with is whether the Defendant’s presence in a parking lot qualified as a highway or trafficway. Of course, the fact that Officer Wiser and Ms. Hockenberry had observed the Defendant operating his vehicle outside of the lot would satisfy this element without considering the nature of the parking lot. Indeed, it was sufficient for the court on Count 2. Nevertheless, the court provided the following instructions with respect to this issue: (d) Part of the second element the Commonwealth must prove is that the defendant was on a highway or a trafficway as those terms are defined by Vehicle Code Section 201. Section 201 defines a highway as the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. Section 201 defines a trafficway as the entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom. (e) A residential parking lot that is not posted with no parking or no trespassing signs and that is not -6- CP-21-CR-0488-2012 restricted to the public is a trafficway under Section 102. Furthermore, a parking lot restricted for tenants only at an apartment complex is a trafficway under Section 201 if you determine that a sufficient number of people use the parking lot. Ultimately, it is up to you to determine if this parking area was a trafficway. However, you should consider all the testimony about the defendant’s driving or operation of a vehicle on the day in question when determining this second 25 element. Taking the evidence in the light most favorable to the Commonwealth, the jury could have found easily that the parking lot was a trafficway. Turning to the “incapable of safe driving” element, the court was more than persuaded by the Commonwealth that the only driving Defendant was capable of was unsafe perforce. The fact that Defendant returned to the parking lot seemingly without incident after his jaunt around town at an astronomical BAC is astounding, but does not prove he did so safely. Moreover, in a “sufficiency” challenge we need only be satisfied that the Commonwealth’s evidence proved the element, which it did. B. Weight of the Evidence The initial determination regarding the weight of the evidence is for the fact finder. Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal denied, 29 A.3d 796 (Pa. 2011). “The weight of the evidence is exclusively for the fact finder who is free to believe all, part, or none of the evidence and to determine the credibility of witnesses.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted), cert. denied, Champney v. Pennsylvania, 542 U.S. 939 (2004). Further, the court should not reverse a verdict based on a 25 N.T. 180-181. -7- CP-21-CR-0488-2012 weight of the evidence claim unless “the verdict was so contrary to the evidence as to shock one’s sense of justice.” Kane, supra at 333 (citations omitted). The weight of the evidence against the Defendant was so great that arguing this issue borders on the absurd. In fact, defense counsel was constrained to argue that the BAC was so high that it constituted a reasonable doubt. Certainly, having been in defense counsel’s shoes, we would have raised this issue as well. However, the jury gave this argument the weight it deserved and we do likewise in denying the requested relief. The specific error alleged in this challenge is that the Defendant was not driving. As noted above, the jury could have found that the Defendant was driving his car around town (per Ms. Hockenberry and Officer Wiser) and/or that Defendant was in actual physical control of the vehicle in the parking lot. Both scenarios were proven to the point that we would have been shocked if the jury had not found the Defendant guilty. C. Mistrial The Defendant’s final error concerns the court’s refusal to grant a mistrial. Although this is worthy of more attention than the first two issues it is without merit, nonetheless. The standard of review governing the denial of a mistrial is as follows: The trial court is vested with the discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be set to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, … assess the degree of any resulting prejudice. Our review of the resulting order is constrained to -8- CP-21-CR-0488-2012 determining whether the court abused its discretion. Judicial discretion requires action in conformity with [the] law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Commonwealth v. Bozic, 997 A.2d 1211, 1226-27 (Pa. Super. 2010) (internal citations and quotations omitted). The remedy of a mistrial is an extreme remedy required “only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal.” Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998) (en banc) (quoting Commonwealth v. Montgomery, 626 A.2d 109, 112-13 (Pa. 1993). Although we firmly believe that our decision was appropriate, in an effort to avoid sounding overly defensive, we refer this Honorable Court to the following sections of the record which speak for themselves: 1. The Misstatement: In offering an explanation as to why he could not find pictures of the scene, Chief Goodhart stated: That’s a good question. I spent considerable time, six, maybe seven hours, rifling through the computer, through the office, whatever. This case being that it’s been going on and twice I was given notice that the Defendant was pleading guilty and -- MS. CESARE: Objection, Your Honor. The Court: Sustained. That will be stricken. (N.T. 81- 82) 2. The Request for Mistrial: Defense counsel wisely and properly waited until after the Commonwealth completed its direct examination of Chief -9- CP-21-CR-0488-2012 Goodhart to approach the bench. The following discussion occurred at sidebar: MS. CESARE: I have to move for a mistrial. THE COURT: You’re moving for a mistrial. MS. CESARE: Based on what came out on direct examination on him. THE COURT: Keep your voice up just a little bit so at least Pam can hear. MS. CESARE: Based on the fact that Officer Goodhart stated that he believed that Mr. Kuhn had pled guilty, and then he said he thought the case was over. THE COURT: And then what? MS. CESARE: And then he’s stating that he thought the case was over. He came before the jury stating that, and we can’t counter all that now. And they’ve heard that they – Mr. Kuhn already stated that he was – at least Officer Goodhart stated that he believed he was guilty, and now they have that in their head. I don’t think that’s going to be something that we can reconcile now at this point. THE COURT: Ms. Provencher. MS. PROVENCHER: I ask that you deny her motion for mistrial and give the jurors a limited instruction as to what the chief said. THE COURT: Well, do you feel that a limiting instruction would be sufficient? MS. CESARE: I do not. I think that coming out is highly prejudicial to my client. THE COURT: All he has said is he heard – and we can go back and check – he heard that he was going to plead guilty or had pled guilty. I can instruct the jury that they should disregard that, as I’ve already -10- CP-21-CR-0488-2012 said it is stricken, and further caution them that they are not to consider that, that in the criminal justice system what a police officer may think or hear regarding a defendant’s plea is not evidence and is just part of the system. I can think of a little bit better way to state that. At this point I’m going to deny your motion and consider a curative instruction. I don’t want to draw too much attention to it, and I think you’ve acted properly in objecting during the testimony and coming up here before your cross examination. We’ll discuss this more at a recess, but for now your motion is 26 denied. 3. Argument on the Motion: After receiving testimony outside the hearing of the jury regarding the Driving Under Suspension charge, the court returned to the mistrial issue, allowing the attorneys to argue the matter 27 before and after a recess. 4. The Curative Instruction: Following the aforesaid argument, the court delivered this curative instruction to the jury: Please be seated. Ladies and gentlemen, before we hear from the next witness, I do want to clarify something to remove any question or doubt in your minds. You heard Chief Goodhart earlier state that he thought the defendant might have entered a plea of guilty, and he said that with respect to him trying to figure out where the photographs are. Frankly, Chief Goodhart was looking for an explanation as to why he could not find the photographs, and what he said was pure speculation. The chief handles a lot of cases, possibly confused with another case. But the fact is the defendant did not plead guilty; so the chief’s speculation is totally irrelevant and should not be considered. Obviously, in a criminal case, the possibility of a guilty plea exists with every case. But one did not 26 N.T. 89-91. 27 N.T. 119-125. Because this argument was unpersuasive, we do not include it in the text. Ultimately, defense counsel was unable to present anything on point to convince us that the misstatement could not be set aright. -11- CP-21-CR-0488-2012 occur here and nor should you consider it. The defendant has a constitutional right to a trial by a jury, and he’s exercising that right now. The chief’s speculation must be put aside and not considered at all because it was speculation and, in fact, was wrong. Now, I’ll tell you a little bit more later on in my final charge as to what you might or might not do, it’s your decision, as to what you do with respect to the failure to produce the photographs; so that will come up again. But, again, the chief’s speculation as to why he couldn’t find them and saying he thought the defendant might have pled guilty was just that, speculation, and it was wrong. So with that, we’ll hear 28 from the next Commonwealth witness. 5. The Missing Photographs: During our final instructions, we followed through on the above explanation and charged the jury on the issue of the 29 missing photographs. We trust that the foregoing excerpts from the record demonstrate that we did not abuse our discretion. In the context of this case, Chief Goodhart’s misstatement was fixed easily by our instruction. Furthermore, our slap on Chief Goodhart’s wrist for undue speculation was reinforced by our charge regarding the missing photographs. Therefore, if the jury even considered his statement for a moment, it would have been placed within the context of the officer creating an excuse as oppose to an attempt to impact the presumption of innocence. The prejudice was minor and the cure was complete. Conclusion We respectfully submit that there was sufficient evidence with respect to the Defendant’s guilt regarding all three charges. Additionally, the weight of the 28 N.T. 125-126. 29 N.T. 176. -12- CP-21-CR-0488-2012 evidence was overwhelmingly supportive of the verdicts. Finally, the court did not abuse its discretion when it denied the request for a mistrial. For the foregoing reasons, it is believed that the judgment of sentence from which Defendant has appealed was properly entered. By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Stephanie L. Cesare, Esquire For Defendant :sal -13-