HomeMy WebLinkAboutCP-21-CR-0000651-2013
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CP-21-CR-651-2013
:
: CHARGE: 1. DUI, GENERAL IMPAIRMENT
nd
: (2); 2. DUI, GENERAL IMPAIRMENT WITH
nd
: REFUSAL (2); 4. TURNING MOVEMENTS
: AND REQUIRED SIGNALS (SUMMARY)
:
ALFRED DINO PELLEGRINI, JR. :
OTN: L751915-3 : AFFIANT: OFF. JASON HALL
OPINION PURSUANT TO Pa.R.A.P. 1925
Ebert, J., September 9, 2014 –
Alfred Dino Pellegrini, Jr., Defendant in the above-captioned matter, appeals his
conviction following a non-jury trial on May 7, 2014. Defendant was found guilty beyond
a reasonable doubt of the above-captioned charges. Defendant’s Motion for Acquittal
was granted for Count 3, DUI Highest Rate as there was no evidence presented
indicating Defendant’s blood alcohol was higher than .16 percent within two hours of
driving. Defendant was sentenced to incarceration in the Cumberland County Prison for
a period of 90 days to 6 months on June 17, 2014.
Defendant complains of the following errors on appeal.
a. The trial court’s failure to conduct a hearing on Appellant’s pre-trial
motion effectively denied him due process. Rather than simply issuing a
flat denial, the Court should have granted Appellant the opportunity to fully
and completely litigate his claims, which he still believes have merit.
b. Appellant’s pre-trial motion should have been granted, thus prohibiting
the Commonwealth from offering any evidence of Appellant’s alleged
“refusal” at the time of trial and using the same as a sentencing
enhancement, given the ruling of the Supreme Court of the United States
in Missouri v. McNeely.
c. In examining all of the facts of the record and all of the evidence at trial,
and all reasonable inferences derived therefrom, and even when viewed in
the light most favorable to the Commonwealth as the verdict winner, the
evidence was insufficient as a matter of law to sustain the trial court’s
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determination that the accused was guilty of driving under the influence.
Statement of Facts and Procedural History
Officer Jason Hall of the Shiremanstown Borough Police Department was on
duty on December 16, 2012, monitoring traffic in the 200 block of West Main Street in
Shiremanstown, Cumberland County, Pennsylvania. At approximately 2:55 a.m.,
Officer Hall observed a black Mercedes Benz sedan, later determined to be driven by
Defendant, approach the intersection of South Rupp and West Main Street. The vehicle
made a left-hand turn without using a turn signal. The vehicle then pulled over to the
side of the road, but was not parked parallel to the curb. Officer Hall decided to pull in
behind the vehicle and make sure everything was okay. Officer Hall noticed that the
vehicle was stopped in an unusual position in the street. One end of the vehicle was 4
2
feet from the curb the other end was 5 feet from the curb. The Defendant’s vehicle
was only 20 feet from the intersection and was in the roadway such that it constituted a
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safety hazard.
Officer Hall pulled in behind Defendant’s vehicle and started to approach the
driver’s side. Defendant began to get out of the vehicle and Officer Hall instructed him
to stay inside the vehicle. When Officer Hall was by the left rear quarter panel of the
vehicle, he noticed Defendant was talking on his cell phone and he also smelled an
1
Defendant’s Concise Statement of Matters Complained of on Appeal in Accordance with Pa.R.A.P.
1925(b)
2
Notes of Testimony, In Re: Non-Jury Trial, 5, May 7, 2014 (hereinafter N.T. at ___ )
3
N.T. at 5-7
2
odor of an alcoholic beverage emanating from the vehicle. Officer Hall approached
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Defendant and asked him to hang up the phone and Defendant complied.
Officer Hall then identified himself to Defendant and began talking to him. He
told the Defendant that he had stopped him because he had made a left turn without
using his turn signal. Defendant told him that his mother had died and he was having a
rough day. Defendant also informed Officer Hall that he was on his way to his
girlfriend’s house and knew he was close, but was not sure where he was going from
there. Officer Hall noticed that Defendant had glassy and bloodshot eyes and that his
speech was slurred. Officer Hall received Defendant’s information and then asked if
Defendant would be willing to perform some field sobriety tests. Defendant agreed and
got out of the vehicle. After getting out of the vehicle for field sobriety tests, Defendant
reminded Officer Hall that he was having a rough day and that his mother was on life
support. Officer Hall asked Defendant about this because previously Defendant said his
mother had died. Defendant replied that he meant he had taken her off life support that
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day and she would die soon.
After this conversation, Officer Hall first performed the HGN test and said that “it
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took a while for \[Defendant\] to follow the instructions, mainly keeping his head still.”
Next, Officer Hall performed the walk and turn test and had to remind Defendant to get
into the starting position several times. Defendant was frustrated with Officer Hall and
accused him of making the test too tough for him. Then Defendant mentioned he was
just on his way to a friend’s house. Officer Hall responded that he understood
Defendant was going to his girlfriend’s house. Defendant then stated in a defiant tone
4
N.T. at 5-7
5
N.T. at 7-10
6
N.T. at 10
3
that he never said he was going to his girlfriend’s house. Officer Hall pointed out the
inconsistencies in Defendant’s stories and Defendant got quiet. Following this
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exchange, Defendant was unwilling to complete the walk and turn test.
Finally, Officer Hall performed the one-leg stand test. Defendant could not keep
his foot up and almost fell into Officer Hall. Defendant was unable to complete this test
either. Officer Hall then asked if Defendant would complete a portable breath test
(“PBT”) test. Defendant voluntarily did the PBT and the results “did confirm \[Officer
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Hall’s\] observations that there was a presence of alcohol on \[Defendant’s\] breath.” This
confirmed Officer Hall’s opinion that Defendant was incapable of safe operations and
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was DUI. Thereafter, Officer Hall placed Defendant under arrest for DUI.
Officer Hall transported Defendant to Cumberland County Prison for booking.
After arriving, Officer Hall read Defendant the DL-26 form, which informed Defendant
about the consequences of refusing to submit to the blood draw, and then asked him to
submit to a blood draw. Defendant ultimately refused to submit to the blood draw.
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Based on his refusal, no blood was drawn from Defendant.
Prior to the non-jury trial, Defendant filed a Motion to Suppress on February 5,
2014. Defendant argued that the evidence of his refusal to submit to chemical testing
should be suppressed because the Commonwealth did not have a warrant to conduct a
“search” of Defendant’s blood when the Defendant was asked to consent to the blood
test. The basic logic of the Defendant’s motion was that after the U.S. Supreme Court
case of Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013), implied consent
7
N.T. at 10-12
8
N.T. at 14
9
N.T. at 12-14
10
N.T. at 14-15; Com. Ex. 4
4
laws have no validity and that a Defendant’s refusal to submit to a blood test is an
exercise of a constitutionally protected right when the Commonwealth has not obtained
a warrant to draw blood for a test prior to asking Defendant to consent. Defendant also
argued that it was unconstitutional to impose a greater penalty on him for refusing the
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chemical test. Defendant’s Motion to Suppress was denied on March 10, 2014,
following Defendant’s stipulation that he was read the DL-26 implied consent form and
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that he refused the chemical test.
A non-jury trial was held on May 7, 2014, where this Court found Defendant guilty
beyond a reasonable doubt of the above-captioned offenses. Defendant was found not
guilty of DUI Highest Rate, as there was no evidence presented that showed
Defendant’s BAC was above .16. On June 17, 2014, Defendant was sentenced at
Count 2, DUI, second offense, with Refusal, to a period of incarceration in Cumberland
County Prison for a period of 90 days to 6 months. Count 1 merged with Count 2 for
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sentencing.
Discussion
I. Suppression Motion
This Court will first address Defendant’s second error complained of on appeal,
that his Suppression Motion should have been granted. Defendant relies on the United
States Supreme Court case Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552 (2013),
and argues that evidence of his refusal and the refusal charge should have been
suppressed. Defendant’s Suppression Motion was properly denied and this Court did
not err.
11
Motion to Supress \[sic\], filed Feb. 5, 2014
12
Order of Court, In Re: Motion to Suppress, March 10, 2014
13
Order of Court, July 17, 2014
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Defendant argues that his refusal should be suppressed because McNeely held
that the natural dissipation of alcohol in the bloodstream does not constitute an
exigency sufficient to justify a blood test without a warrant in every case. Id. at 1568.
Defendant reasons that since the police did not have a warrant to conduct a blood draw,
they could not have asked for his consent, and therefore any evidence of his refusal
should be suppressed. Defendant is incorrect in his interpretation of McNeely.
In McNeely, police took the defendant, McNeely, to a nearby hospital for a blood
test after arresting him for DUI. While at the hospital, the officer read to McNeely
Missouri’s standard implied consent form and explained to him that a refusal to submit
to the blood test would lead to immediate revocation of his driver’s license and could be
used against him in a future prosecution. McNeely refused the blood test, even after
hearing these warnings. After McNeely’s refusal, the officer then directed a hospital lab
technician to take a blood sample from McNeely. Id. at 1557. The Supreme Court of
the United States held that the actual involuntary blood draw was unconstitutional
without a proper warrant, consent of the defendant, or exigency other than the natural
dissipation of alcohol in the bloodstream, because it violated McNeely’s Fourth
Amendment protections. Id. at 1568.
Here, there is a significant and obvious difference between Defendant’s situation
and McNeely’s. In the McNeely case, the officer ordered that blood be drawn from
McNeely, even after he refused. In Defendant’s case, after he refused chemical testing,
his blood was not drawn. In fact, Pennsylvania law does not allow a non-consensual or
involuntary blood draw following an arrest for DUI, but instead has an implied consent
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law that has harsher penalties if a defendant refuses. 75 Pa.C.S.A. § 1547(b)(1); 75
Pa.C.S.A. § 3804(c).
In fact, the Supreme Court in McNeely recognized that all 50 states have implied
consent laws, many of which have harsher penalties for drivers who refuse chemical
testing. The Court stated:
As an initial matter, States have a broad range of legal tools to enforce
their drunk-driving laws and to secure BAC evidence without undertaking
warrantless nonconsensual blood draws. For example, all 50 States have
adopted implied consent laws that require motorists, as a condition of
operating a motor vehicle within the State, to consent to BAC testing if
they are arrested or otherwise detained on suspicion of a drunk-driving
offense… Such laws impose significant consequences when a motorist
withdraws consent; typically the motorist’s driver’s license is immediately
suspended or revoked, and most States allow the motorist’s refusal to
take a BAC test to be used as evidence against him in a subsequent
criminal proceeding…
McNeely, 133 S. Ct. at 1566 (internal citations omitted). Clearly, the Court did not find
that those types of implied consent laws are unconstitutional, but instead implied that
they are a useful tool for States to enforce drunk-driving laws. Id.
The implied consent statute at issue here is plainly not unconstitutional based on
the above language of the United States Supreme Court in McNeely. It is clear that no
unreasonable search and seizure occurred in Defendant’s case because no evidence
was seized. It is certainly unreasonable for Defendant to suggest that police must have
a warrant to simply ask for a defendant’s consent to draw blood. Here, Defendant was
not forced to submit to an involuntary blood draw. Defendant was given the chance to
submit to a blood test based on Pennsylvania’s implied consent statute and refused.
See also Dylan T. Faircloth v. Commonwealth of Pennsylvania, Department of
Transportation, Bureau of Driver Licensing, 63 Cumb. 89 (Cumb. Co. 2014) (discussing
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the application of McNeely to a license suspension after a licensee’s refusal to submit to
blood testing following his arrest for DUI and finding that it did not apply to a licensee
who was given the chance to submit to a blood draw and refused). Since McNeely is
not applicable to Defendant’s situation and there was no unconstitutional search or
seizure, this Court did not err in denying Defendant’s Suppression Motion.
II. Suppression Motion Hearing
This Court will now look at Defendant’s first error complained of; that this Court
erred in not holding a hearing on Defendant’s Suppression Motion and in not allowing
Defendant an opportunity to fully present his claims. The Defendant maintains that the
Court effectively denied him due process. This claim is somewhat puzzling.
A hearing on Defendant’s Suppression Motion was scheduled for 2:00 p.m. on
March 10, 2014. The Court had allocated 2 ½ hours for the purposes of this hearing.
At the hearing, the following transpired:
The Court: Please be seated.
Mr. Smith: Good afternoon. We are here on Alfred Pellegrini,
Docketed at 651-2013, a defense motion to suppress. It is a
motion to suppress evidence of refusal, but also, I believe,
cased within that is a motion to dismiss the refusal based charge
as well cause if you suppress the refusal, then the refusal charge
must be dismissed.
It is my understanding for the purposes of this hearing
only, and not for any trial, that the defense will stipulate that the
implied consent was given in accordance with Pennsylvania law
and in accordance with Pennsylvania law the defendant did refuse.
The Court: Mr. Hoover, is that correct?
Mr. Hoover: Yes, Your Honor, that is correct.
The Court: All right. Enter this Order:
8
th
AND NOW, this 10 day of March, 2014, after meeting with counsel in
chambers, and after the defendant having stipulated that implied consent
was given in accordance with Pennsylvania law, i.e., the DL-26 was read
to the defendant, and that according to Pennsylvania law the defendant
refused, IT IS HEREBY ORDERED AND DIRECTED that the defendant’s
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motion to suppress the refusal and the refusal charge is hereby denied.
In short, the Defendant never requested a full hearing. The only thing the
Defendant did ask for was a continuance of his non-jury trial which was granted. It
should be noted that at the non-jury trial which was held on May 7, 2014, the Defendant
again never brought up anything about contesting his refusal of the blood alcohol test.
The Defendant chose to exercise his constitutional right not to testify and accordingly
the Court was left with only the videotape evidence of the Defendant refusing the blood
alcohol test at the Cumberland County Central Booking Center.
The Defendant’s trial strategy was well thought out. It was based upon the
Defendant’s interpretation of the McNeely case which he felt required the police to have
an approved search warrant in their possession before they could ask the Defendant to
consent to the blood test. As discussed supra, McNeely is not applicable to
Defendant’s situation as no search or seizure was made of his blood. It was clear that a
hearing on Defendant’s Suppression Motion was not required after Defendant stipulated
that he was read the implied consent form and that he refused consent for a blood draw
following his arrest for DUI. The Defendant was given ample opportunity at both the
scheduled suppression hearing and his trial to create an evidentiary record in support of
his claim that he had not violated the Pennsylvania implied consent statute.
14
Notes of Testimony, In Re: Motion to Suppress, March 10, 2014, p. 2-3.
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III. Sufficiency of Evidence
Defendant’s final error complained of is that there was insufficient evidence for
the trial court to find him guilty beyond a reasonable doubt of DUI. Based on the
evidence presented at the trial, there was more than sufficient evidence to find
Defendant guilty of DUI, General Impairment and that he refused the BAC test.
The standard of review for a sufficiency of the evidence claim is whether the
evidence admitted at trial, and all reasonable inferences drawn therefrom, support the
conviction beyond a reasonable doubt, when viewed in the light most favorable to the
Commonwealth as verdict winner. Commonwealth v. Mobley, 14 A.3d 887, 889 (Pa.
Super. 2010).
In order to find an individual guilty of DUI, General Impairment, the
Commonwealth must prove that he drove, operated, or was in actual physical control of
the movement of a vehicle after imbibing a sufficient amount of alcohol such that he was
rendered incapable of safely driving or operating a vehicle. 75 Pa.C.S.A. § 3802(a)(1);
see also Mobley, 14 A.3d at 890. Evidence of erratic driving is not necessary to find an
individual guilty of DUI. Mobley, 14 A.3d at 890. The Commonwealth may prove that a
person is incapable of safe driving by presenting evidence that the Defendant failed field
sobriety tests. Id.
There is no question that Defendant drove and was in actual physical control of
the movement of the vehicle. Officer Hall observed the vehicle make a left-hand turn
without using a turn signal. The car then stopped in the street four or more feet away
from the curb. When he approached the vehicle, Defendant was in the driver’s seat and
was the only occupant of the vehicle. Defendant smelled of alcohol, had bloodshot,
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glassy eyes, and was slurring his speech. Defendant was unable to satisfactorily
perform any of the field sobriety tests requested by Officer Hall. In fact, during the one
leg stand, Defendant almost fell into Officer Hall, requiring Officer Hall to end the test for
both his and Defendant’s safety. Defendant was also unable to keep his accounts of
events straight. First, he told Officer Hall that his mother had died and he was on his
way to his girlfriend’s house. Then he stated that his mother was not dead but had just
been taken off life support and he was going to a friend’s house. Defendant became
upset with Officer Hall and told him in a defiant tone that he never said he was going to
his girlfriend’s house. Taking all of the above in the light most favorable to the
Commonwealth, there was more than sufficient evidence that Defendant was incapable
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of safe driving and was guilty of DUI beyond a reasonable doubt.
Conclusion
This Court did not err in denying Defendant’s Suppression Motion or by not
holding a hearing on the Suppression Motion. The Supreme Court case Missouri v.
McNeely, is not applicable to Defendant’s situation as no blood was involuntarily drawn
from him. Furthermore, Defendant stipulated that he was read the DL-26 regarding the
consequences of refusing a blood test and that he refused. There was no need to hold
a hearing under those circumstances and the evidence of Defendant’s refusal and the
driving under the influence with refusal charge were properly admitted at trial.
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Defendant does not directly complain that there was insufficient evidence to find that he refused the
blood draw beyond a reasonable doubt. There was sufficient evidence for this Court to find Defendant
refused. Defendant stipulated that he was read the DL-26 form and that he refused the blood draw.
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Additionally, there was more than sufficient evidence to find Defendant guilty beyond a
reasonable doubt of DUI.
By the Court,
______________________
M. L. Ebert, Jr., J.
District Attorney’s Office
David M. Hoover, Esquire
Attorney for Defendant
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