HomeMy WebLinkAboutCP-21-CR-0003380-2011
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-3380-2011
vs. :
: CHARGES: (1) FLEEING OR ATTEMPTING TO
: ELUDE POLICE OFFICER (2) DUI: GENERAL
: IMPAIRMENT (3rd or Subsequent) (3) DUI:
: GENERAL IMPAIRMENT WITH REFUSAL (3rd or
: Subsequent) (6) CARELESS DRIVING
: (SUMMARY) (7) PUBLIC DRUNKENNESS
: (SUMMARY) (8) RESTRICTION ON ALCOHOLIC
: BEVERAGES (SUMMARY)
:
LEE ALLEN KIMMEL :
OTN: L671997-4 : AFFIANT: PTL. JASON M. BELTZ
In Re: Opinion Pursuant to Pa. R.A.P. 1925(a)
Ebert, J., March 28, 2012 –
Procedural History
Defendant Lee Allen Kimmel was charged with: (1) Fleeing or Attempting to Elude a
Police Officer, 75 Pa.C.S.A. § 3733(a), a felony of the third degree; (2) DUI, General
Impairment (third or subsequent), 75 Pa.C.S.A. § 3802(a)(1), a misdemeanor of the second
degree; (3) DUI, General Impairment with Refusal (third or subsequent), 75 Pa.C.S.A.
§ 3802(a)(1), a misdemeanor of the first degree; (4) Resisting Arrest or Other Law Enforcement,
18 Pa.C.S.A. § 5104, a misdemeanor of the second degree; (5) Defiant Trespass, 18 Pa.C.S.A.
§ 3503(b)(1)(ii), a misdemeanor of the third degree; (6) Careless Driving, 75 Pa.C.S.A. §
3714(a), a summary offense; (7) Public Drunkenness, 18 Pa.C.S.A. § 5505, a summary offense;
and (8) Restriction on Alcoholic Beverages, 75 Pa.C.S.A. § 3809(a), a summary offense.
1
On April 13, 2012, Defendant moved to suppress evidence on the basis of a violation of
1
the Statewide Municipal Police Jurisdiction Act (MPJA), 42 Pa.C.S.A. § 8953. A hearing was
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held on May 25, 2012, before the Honorable Judge Christylee Peck. Judge Peck denied
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Defendant’s Motion to Suppress on September 26, 2012. Judge Peck determined that the
arresting police officer, Officer Jason Beltz, acted in hot and fresh pursuit of Defendant. She also
ruled, however, that Officer Beltz violated the MPJA because he did not have probable cause to
determine that Defendant was driving under the influence within Officer Beltz’s primary
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jurisdiction. Nevertheless, Judge Peck, in light of the circumstances, refused to apply the
5
exclusionary rule. Judge Peck has authored a separate opinion addressing this issue.
On December, 4, 2012, Count 4 - Resisting Arrest and Count 5 - Defiant Trespass were
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withdrawn by the Commonwealth. On the same day, a jury trial was held. The jury found the
Defendant guilty on Count 1 - Fleeing or Attempting to Elude Police Officer, Count 2 – DUI,
7
General Impairment, and Count 3 – DUI, General Impairment with Refusal. The Court also
found Defendant guilty on Count 6 - Careless Driving and Count 7 - Public Drunkenness, but not
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guilty on Count 8 - Restriction on Alcoholic Beverages.
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Defendant was sentenced on December 18, 2012. On Count 3, Defendant was ordered
to pay the costs of prosecution, a fine of $2,500 and undergo incarceration in the State
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Correctional Institute for not less than 14 months nor more than 4 years. Defendant was given
credit for 7 days previously served, and received a Recidivism Risk Reduction Incentive
1
Motion to Suppress, filed Apr. 13, 2012.
2
Transcript of Proceedings, In re: Motion to Suppress, J. Peck, May 25, 2012 (hereinafter NT).
3
In re: Defendant’s Motion to Suppress, Order, J. Peck, Sept. 26, 2012.
4
Id.
5
Id.
6
In re: Counts 4 & 5 Withdrawn, Order, J. Ebert, Jr., Dec. 4, 2012.
7
In re: Defendant Found Guilty after Jury Trial, Order, J. Ebert, Jr. Dec. 4, 2012.
8
In re: Defendant Found Guilty after Jury Trial, Order, J. Ebert, Jr. Dec. 4, 2012.
9
In re: Sentence, Order, J. Ebert, Jr., Dec. 18, 2012.
10
Id.
2
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sentence of 10 months 15 days. On Count 1, Defendant was ordered to pay the costs of
prosecution, a fine of $500 and undergo incarceration in the State Correctional Institute for not
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less than 8 months nor more than 2 years, to run consecutive to the sentence at Count 3.
Defendant received a Recidivism Risk Reduction Incentive sentence of 6 months on this
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charge. The aggregate sentence was 22 months to 6 years. On Count 6, Defendant was
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ordered to pay the costs of prosecution, and a $25 fine. The Court determined that for
sentencing purposes Count 2, Driving Under the Influence – General Impairment merged with
Count 3, Driving Under the Influence – General Impairment with Refusal. Additionally, the
Court determined that Count 7, Public Drunkenness also merged with Count 3, Driving Under
the Influence – General Impairment with Refusal. Therefore, the Defendant received no
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sentences for these charges.
On December 28, 2012, Defendant filed a post-sentence Motion to Modify the Sentence
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and a Motion for Judgment of Acquittal. The court denied both motions on January 3, 2013.
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Defendant then filed a Notice of Appeal on January 16, 2013.
Factual History
On November 22, 2011, around 10:45 p.m., Cumberland County Dispatch received a call
from Linda Cheskey indicating that a man appeared very intoxicated at the Sheetz gas station in
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Mt. Holly, Cumberland County, Pennsylvania. The man, identified by Ms. Cheskey at trial as
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Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Defendant’s Post-Sentence Motions, filed Dec. 28, 2012.
17
Order, J. Ebert, Jr., Jan. 3, 2013.
18
Notice of Appeal, filed Jan. 16, 2013.
19
Transcript of Proceedings, In re: Jury Trial Proceedings, J. Ebert, Jr., Dec. 4, 2012, (hereinafter JT) JT 17-18.
3
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the defendant, struggled to exit his truck and proceeded to stagger around. Ms. Cheskey
testified that it took Defendant five attempts to put the nozzle in the gas tank and he continued to
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stumble and fall throughout the process. At this point, Ms. Cheskey called 911 and gave the
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dispatcher a description of the truck and eventually the license plate number. Ms. Cheskey
began to follow Defendant as he left, but saw a police car approaching with its emergency lights
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on and decided it would not be necessary to follow Defendant as the police were now at hand.
According to Ms. Cheskey, she saw the police car no more than 30-40 seconds after Defendant
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left the Sheetz parking lot.
After exiting the Sheetz parking lot, Defendant turned onto Mill Street towards Boiling
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Springs. At that point, Officer Jason Beltz, who was driving the police car Ms. Cheskey saw
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approaching, began to follow Defendant’s truck. Officer Beltz had been informed that there
was a man at the Sheetz gas station who appeared to be severely under the influence. He was
also given a brief description of the vehicle and license plate number, and a description of the
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man driving the truck. Officer Beltz followed the truck, initially with his emergency lights on
2829
but then turned them off. At that time, Officer Beltz was not able to see Defendant’s truck.
30
Eventually, Officer Beltz observed Defendant’s truck driving in the middle of the roadway.
However, by this time, Officer Beltz had left Mt. Holly Springs jurisdiction and was now in
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JT 18.
21
JT 19.
22
JT 21.
23
JT 21. According to her testimony, Ms. Cheskey did not leave the Sheetz parking lot. Just as Defendant began to
leave and she was debating whether to follow, she saw the police lights. Id.
24
JT 22.
25
JT 22.
26
JT 28.
27
JT 28.
28
JT 31-32. Officer Beltz was wearing his uniform and driving a marked police car. JT 29.
29
JT 32.
30
JT 32-33.
4
31
South Middleton Township. South Middleton Township is patrolled by the Pennsylvania State
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Police, but Officer Beltz made no attempt to contact the State Police. Officer Beltz reactivated
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his lights as the truck entered a posted no-trespass area. Eventually, the truck came to a stop
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approximately a mile to a mile and a half outside the borough of Mt. Holly Springs.
Officer Beltz proceeded to conduct a traffic stop and asked Defendant to produce his
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license and registration, which Defendant had difficulty finding. According to Officer Beltz,
Defendant had a distinct odor of alcohol on his breath, appeared disheveled, and spoke with
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slurred speech. When Officer Beltz asked Defendant to exit his vehicle to perform a field
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sobriety test, Defendant initially complied but was unstable on his feet. Defendant then told
the Officer that he had done nothing wrong and proceeded to reenter the truck and attempt to
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restart the engine. Officer Beltz removed the keys, but Defendant exited the vehicle and
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pushed Officer Beltz away. Defendant then produced a second set of keys, reentered the
4041
vehicle, and locked the door. He turned on the engine and drove away.
42
After a brief attempt to pursue Defendant as he drove across a field, Officer Beltz went
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to Defendant’s parents’ home in an attempt to relocate Defendant. Officer Beltz subsequently
discovered Defendant’s truck near his parents’ home hung up on a tree stump with its back
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JT 48-50. Officer Beltz was approximately a quarter of a mile outside his jurisdiction. NT 13.
32
JT 49-50.
33
JT 33-34. Officer Beltz did not activate his sirens at this time. JT 57.
34
JT 50
35
JT 34.
36
JT 34-35.
37
JT 35.
38
JT 37.
39
JT 38.
40
JT 38.
41
JT 38-39.
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Officer Beltz testified that Defendant drove across a muddy farmer’s field, and because the officer was in a two-
wheel drive police car as opposed to Defendant’s four-wheel drive truck, he elected not to pursue. JT 39.
43
JT 39-40. Despite the house being located just outside the officer’s jurisdiction, Officer Beltz testified that no
other police were in the area. JT 40-41.
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wheels spinning. Defendant exited his vehicle and was taken into custody by Officer Beltz.
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The arrest took place in South Middleton Township.
After being taken to Cumberland County Prison for processing, Officer Beltz read
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Defendant the DL-26 form verbatim. According to Officer Beltz, after reading the form and
asking if Defendant would submit to a blood test, Defendant “jumped out of his seat and
48
basically made a threatening move towards me.” The actual video recording of the Defendant’s
actions marked as Commonwealth’s Exhibit 2 was shown to the jury and they personally
observed what the Defendant did at the Booking Center.
Discussion
Defendant submitted a concise statement of the errors complained of on appeal on
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February 6, 2013. In his statement, Defendant raises four issues for this court to consider,
which the court will consider individually.
I.The elements of Feeing or Attempting to Elude a Police Officer and DUI - General
Impairment with Refusal do not merge for sentencing purposes
In his first statement of error, Defendant contends that the sentencing court erred in
denying his post-sentence motion for modification of sentence because Counts 1 and 3 should
merge for sentencing purposes because the elements of Count 3 are an “essential element” of
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Count 1. The Court does not agree.
The Legislature has made clear that in order for crimes to merge for sentencing purposes,
the crimes must be committed as a single criminal act and all the elements of one crime must be
44
JT 42.
45
JT 43.
46
JT 51. The total distance traveled by Officer Beltz outside of his jurisdiction was approximately two to two and
half miles. JT 52. During this entire time, Officer Beltz took no other cases or information from Dispatch. JT 67.
47
JT 44.
48
JT 45.
49
Concise Statement of the Errors Complained of on Appeal, filed Feb. 6, 2013 (hereinafter Concise Statement).
50
Concise Statement at 1.
6
included in the elements of the second crime. 42 Pa.C.S.A. § 9765 (“No crimes shall merge for
sentencing purposes unless the crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of the other offense.”) . To
determine if the crimes are greater and lesser included offenses, the elements of the offenses
must be compared. “If the elements of the lesser offense are all included within the elements of
the greater offense and the greater offense has at least one additional element, which is different,
then the sentences merge.” Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. 2012) (citing
Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). But “[i]f both crimes require proof of
at least one element that the other does not, then the sentences do not merge.” Id.
The elements of Fleeing or Attempting to Elude a Police Officer under 75 Pa. C.S.A
§ 3733 are: (1) Defendant was the driver of the motor vehicle; (2) Defendant was given a visual
and audible signal by the police officer to bring the vehicle to a stop, which may include signal
by hand, voice, emergency lights, or siren; (3) Defendant failed or refused to bring vehicle to a
stop, or fled or attempted to elude the pursuing police officer; and (4) Defendant did so willingly,
that he was aware of the officer’s signal to stop and refused to do so. 75 Pa. C.S.A. § 3733(a),
(b). Under 75 Pa. C.S.A. § 3733(a.2)(2)(i), punishment for an offense under section (a) is
increased to a third degree felony if the defendant also commits a violation of 75 Pa. C.S.A. §
3802.
The elements of DUI - General Impairment under 75 Pa. C.S.A. § 3802 are: (1)
Defendant drove, operated, or was in actual physical control of the movement of a vehicle upon a
highway or traffic-way and (2) while the defendant drove, operated, or was in actual physical
control of the vehicle, he had imbibed a sufficient amount of alcohol such that he was incapable
of safely driving, operating, or being in actual physical control of the movement of the vehicle.
7
75 Pa. C.S.A. § 3802(a)(1). A refusal to submit to a chemical test under the DUI statute affects
the grading of the offense. See 75 Pa. C.S.A. § 3803(b).
In the present case, while it is clear that the first requirement of there being a single
criminal act is met, the second requirement of the elements being included is not. There is no
question in this case that all three of the charged crimes occurred as part of a single criminal act.
However, it is equally clear that the elements of the three crimes do not overlap and should not
merge for sentencing purposes. The charge of Fleeing or Attempting to Elude a Police Officer
requires, for example, the defendant to be given a visual and audible signal by the police to bring
the vehicle to a stop. 75 Pa. C.S.A. § 3733(a). This element is not one required by the DUI -
General Impairment statute. See 75 Pa. C.S.A. § 3802(a)(1). Similarly, one of the elements of a
DUI - General Impairment charge is that the defendant be inebriated to such an extent that he
was incapable of safely driving. Id. There is no mention of inebriation in the statute regarding
Fleeing or Attempting to Elude a Police Officer. See 75 Pa. C.S.A. § 3733. Therefore, the
requirements under 42 Pa.C.S.A. § 9765 for the crimes to merge for sentencing purposes are not
met.
Additionally, in examining the language of the Fleeing or Attempting to Elude a Police
Officer statute, the legislative intent is clear that the DUI - General Impairment charge is to be
used for sentence modification purposes only. “In general, the best indication of legislative
intent is the plain language of the statute.” Commonwealth v. Segida, 985 A.2d 871, 874 (Pa.
2009). The section in question is titled “Grading.” 75 Pa. C.S.A. § 3733(a.2). The clear intent
of the legislature is for a DUI - General Impairment to increase the sentence for the Fleeing
Arrest charge, not to merge the two crimes together for sentencing purposes. Furthermore, the
Commonwealth Court recently held that in regard to similar charges that “[e]ach of these
8
offenses was separately committed with distinct elements; thus, none are a lesser included
offense of another. . . . One can also drive while under the influence without either attempting to
flee from a police officer.” Strawn v. Commonwealth, 976 A.2d 661, 665 (Pa. Commw. Ct.
2009), aff’d, 17 A.3d 320 (Pa. 2011). The Commonwealth Court therefore refused to merge the
offenses, holding that each offense must stand alone. Id. Consequently, there was no error in
denying Defendant’s post-sentence motion for modification of his sentence.
II.The evidence presented was sufficient to sustain a conviction for DUI - General
Impairment with Refusal
In his second statement of error, Defendant contends that the evidence presented at trial
was insufficient to sustain a conviction for Count 3 because Defendant was not given a
meaningful opportunity to consent to the chemical test and the Commonwealth presented no
51
evidence that Defendant refused to submit to chemical testing. The Court disagrees.
“The standard of reviewing the sufficiency of the evidence is whether the evidence
admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most
favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of
the offense beyond a reasonable doubt.” Commonwealth v. Strouse, 909 A.2d 368, 368-69 (Pa.
Super. 2006) (quoting Commonwealth v. Smith, 861 A.2d 892, 894 (Pa. 2004)). “The
Commonwealth need not preclude every possibility of innocence or establish the defendant's
guilt to a mathematical certainty.” Commonwealth. v. Brotherson, 888 A.2d 901, 904 (Pa.
Super. 2005) (citing Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)). “The
finder of fact—here, the jury—exclusively weighs the evidence, assesses the credibility of
witnesses, and may choose to believe all, part, or none of the evidence.” Commonwealth v.
Sanchez, 36 A.3d 24, 39 (Pa. 2011).
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Concise Statement at 2.
9
In the present case, Defendant was tried before a jury. The jury was instructed that they
could find that there was a refusal either in words or by uncooperative conduct after examining
52
all the surrounding facts and circumstances. At trial, Officer Beltz testified that when he asked
Defendant to submit to a blood test, Defendant “jumped out of his seat and basically made a
53
threatening move towards me.” Additionally, the jury was able to view a video of Defendant
54
and his behavior while detained at the Cumberland County jail. Furthermore, the jury heard
testimony about Defendant’s behavior prior to being arrested, including his apparent
drunkenness at Sheetz, his erratic driving, the smell of alcohol on his breath, his slurred speech,
and his driving across a field. Based on the direct and circumstantial evidence presented by the
Commonwealth, the jury interpreted Defendant’s observed behavior to constitute a refusal.
Because the Commonwealth presented evidence regarding Defendant’s refusal and the fact
finder found there to be a refusal, there was sufficient evidence to sustain a conviction for Count
3, DUI - General Impairment with Refusal.
III.The conviction for DUI - General Impairment with Refusal was not against the
weight of evidence
55
In his third statement of error, Defendant contends that the conviction for Count 3 was
so against the weight of evidence as to shock one’s conscience. Defendant claims that he was
never given a meaningful opportunity to consent to the chemical test, and that the
Commonwealth presented no evidence that Defendant in fact refused to submit to chemical
56
testing. This Court does not agree.
52
JT 99-100.
53
JT 45.
54
JT 72.
55
The Concise Statement refers to “count 1: DUI General Impairment with Refusal.” Concise Statement at 2. The
court will assume that Defendant is referring to Count 3.
56
Concise Statement at 2.
10
The Pennsylvania Supreme Court has stated:
[a] challenge to the weight of the evidence is directed to the discretion of the trial
judge, who heard the same evidence and who possesses only narrow authority to
upset a jury verdict. The trial judge may not grant relief based merely on “some
conflict in testimony or because the judge would reach a different conclusion on
the same facts.” Relief on a weight of the evidence claim is reserved for
extraordinary circumstances, when the jury's verdict is so contrary to the evidence
as to shock one's sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (internal citations omitted).
As discussed above, the Commonwealth introduced both video evidence and testimony
concerning Defendant’s conduct while detained at the Cumberland County jail. The jury was
also free to consider the testimony concerning Defendant’s behavior prior to being arrested as
discussed above. Defendant attempts to focus his entire argument on the moment of “refusal.”
As is often stated, “the Commonwealth may sustain its burden of proving every element of crime
beyond a reasonable doubt by means of wholly circumstantial evidence.” Moreover, in applying
the above test, the entire record (emphasis added) must be evaluated and all evidence actually
received must be considered. Commonwealth v. Bricker, 872, 877, (Pa.Super. 2012) citing
Commonwealth v. Vetrini, 734 A.2d 404, 406-407 (Pa.Super. 1999).
Common sense dictates that of all the people involved in the Defendant’s case, the
Defendant is the one person who knows whether he drank intoxicating beverages and if he did,
how much he had to drink. This Defendant has had previous Driving Under the Influence
convictions in this Court and he is quite familiar with the judicial process in such cases. He
understands that the most probative evidence of a Defendant’s intoxication is his blood alcohol
concentration provided by a blood alcohol test. Accordingly, it is entirely logical that a
Defendant would refuse to take a blood alcohol test in order to deny the Commonwealth this
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very probative piece of evidence. The Pennsylvania Suggested Standard Criminal Jury
Instructions recognizes the validity of this premise in Pa. SSJI (Crim) 17.6502C which states:
2. “The Commonwealth argues that the testimony tending to
show that the Defendant refused to give a sample of his blood
indicates that he was conscious that he was guilty of
driving under the influence.”
57
This instruction was in fact part of the charge given to the jury in this case.
The jury was free to consider the fact that a Defendant who publicly exhibited a high
level of intoxication at the Sheetz Store, fled from the police officer, drove through a field, and
“hung” his vehicle up on a tree stump would refuse to provide a blood alcohol test because he
knew that his level of intoxication was above the legal limit and that he did not want to provide
such evidence to the Commonwealth. Thus, the evidence of the Defendant’s behavior before the
actual moment of refusal is circumstantial evidence that he did refuse because he did not want to
provide actual physical evidence of the level of his intoxication.
This evidence is sufficient for a jury to determine that Defendant in fact did refuse to
submit to a blood test. The jury verdict consequently is not “so contrary to the evidence as to
shock one’s sense of justice” and a new trial is not warranted.
IV.The suppression court did not err in denying to suppress the evidence despite the
violation of 42 Pa.C.S.A. § 8953
The Defendant’s suppression motion was heard before the Honorable Judge Christylee
Peck. She has issued a separate Pa.R.A.P. 1925(a) opinion which addresses the Defendant’s
claim of error. Accordingly, this issue will not be addressed by this Court.
57
J.T. 100
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Conclusion
In conclusion, Defendant’s post-sentence motion to modify his sentence based on his
claim of merger was properly denied. Additionally, the evidence presented at trial was sufficient
to sustain his convictions and the convictions were not against the weight of evidence.
By the Court,
______________________
M. L. Ebert, Jr., J.
Richard H. Bradbury, Jr.
Assistant District Attorney
Michael Halkias
Deputy District Attorney
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