HomeMy WebLinkAbout91-2014 CriminalCOMMONWEALTH IN THE COURT OF COMM N PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2014 CRIMINAL 19)l
V. .
CHARGE: DRIVING UNDER THE
CHARLES R. BOYLES, JR. INFLUENCE
RE: DEFENDANT'S POST -VERDICT MOTIONS
BEFORE BAYLEY and OLER, JJ.
ORDER OF COURT
AND NOW, this 30th day of November, 1992, upon consideration
of Defendant's post -verdict motions in arrest of judgment and for
a new trial, the motions are DENIED. Sentence is deferred pending
receipt by the Court of a presentence investigation report.
Defendant is directed to appear for sentence at he call of the
District Attorney.
BY THE COURT,
Alison Taylor, Esq.
Assistant District Attorney
H. Anthony Adams, Esq.
Assistant Public Defender
Probation Office
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COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2014 CRIMINAL 1901
V. .
CHARGE: DRIVING UNDER THE
CHARLES R. BOYLES, JR. INFLUENCE
MOT
BEFORE BAYLEY and OLER, JJ.
OPINION AND ORDER OF COURT
The present driving under the influence case', arises out of
Defendant's operation of an automobile at 1:30 a.�. on September
29, 1991, on Fairfield Street in the Boroughll of Newville,
Cumberland County, Pennsylvania.' Charges were broui ight against the
Defendant alleging violation of Section 3731(a)(1) of the Vehicle
Code, driving under the influence of alcohol to a degree rendering
him incapable of safe driving, 2 and violation of Section37 31(a) (4 )
of the Vehicle Code, driving while the amount of alcohol by weight
in his blood was .10% or greater.' Following a jury trial on April
27, 1992, Defendant was acquitted on the former charge but found
guilty of driving while the amount of alcohol byll weight in his
blood was .10% or greater.°
Post -verdict motions in arrest of judgment andjfor a new trial
' N.T. 15-18, Trial, Commonwealth v.
April 27, 1992 (hereinafter N.T. ).
2 Act of June 17, 1976, P.L. 162, §1,
§3731(a) (1992 Supp.).
3 Act of June 17, 1976, P.L. 162, S1,
§3731(a)(4) (1992 Supp.).
4 N.T. 119.
Charles I2.
as amended,
II
as amended,
Boyles, Jr.,
75 Pa. C.S.
75 Pa. C.S.
No. 2014 Criminal 1991
have been filed on behalf of the Defendant.' These are based on
assertions that "[t]he testimony of the [Commonwealth's] expert
witness was so speculative and self contradictory that it left the
jury free to engage in unbridled speculation as to the blood
alcohol level at the time of driving ,6 and that "kt]he testimony
of the expert was based upon information that he dilld not obtain in
Court."' For the reasons stated in this Opinion, Defendant's post -
verdict motions must be denied.
"Included in the grounds upon which a motion in arrest of
judgment is appropriately granted [is the ground that] the evidence
was insufficient to sustain the charge 2 Wasserbly,
Pennsylvania Criminal Practice §30.01, at 1 (19192). "Grounds
justifying grant of a new trial include [the ground that] ... the
verdict was against the weight of the evidence ..�." Id., at 2.
Where the issue of whether the verdict is supporteld by the weight
of the evidence is raised, "the court will examine the record to
' Defendant's Motion in Arrest of Judgment or in the
Alternate for a New Trial, filed May 5, 1992.
6 Defendant's Motion in Arrest of Judgment or in the
Alternate for a New Trial, paragraph 5.
' Defendant's Motion in Arrest of Judgment or in the
Alternate for a New Trial, paragraph 6.
No motion on behalf of Defendant was m de at trial to
preclude or strike a portion of the expert's t stimony on the
ground it was based upon information that he di not obtain in
court. See N.T. 84. For this reason, the Court assumes that the
Defendant's argument as to such testimony relates to the overall
sufficiency or weight of evidence as opposed to an trial error in
the testimony's admission.
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No. 2014 Criminal 1991
determine whether the jury's verdict was so contrary to the
evidence as to shock one's sense of justice and to, make the award
of a new trial imperative .... A defendant bears] a heavy burden
when asserting that the verdict was against thellli weight of the
evidence." Id., §30.02, at 125-26 (1992 Supp.).'
"In reviewing the sufficiency of the evidence, the test is
whether, viewing the record in the light most favorable to the
Commonwealth and drawing all reasonable inferences therefrom, there
is sufficient evidence to enable the trier of fact to find every
element of the crime beyond a reasonable doubt." Commonwealth v.
Leatherbury, 322 Pa. Super. 222, 226, 469 A.2d 263,1265 (1983); see
Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 11102 (1984). The
court, in [examining the record with respect to tY'e weight of the
evidence), need not review the evidence in the light most favorable
to the verdict, and may evaluate the credibility of the witnesses
by itself." 2 Wasserbly, Pennsylvania Criminal Pra6tice 530.02, at
126 (1992 Supp.).
At trial, no testimony was presented onll,behalf of the
Defendant.' On behalf of the Commonwealth, Newville Borough Police
' A motion for a new trial based upon the weight of the
evidence "is addressed to the sound discretion of the trial court
Commonwealth v. Fields, 317 Pa. Super. 387;, 396, 464 A.2d
375, 380 (1983).
9 N.T. 101-03.
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No. 2014 Criminal 1991
Officer Troy L. Wiser10 testified that he was on duty on September
29, 1991, at 1:30 a.m.,11 when he stopped a car thlt was speeding
and driving erratically on Fairfield Street." He stated that the
Defendant was the driver of the car, 13 and he re�ounted various
additional indicia of intoxication on the Defendant's part.14 He
testified that the Defendant was placed under arr�st for driving
under the influence, 15 and transported to the Carlisle Booking
Center, 16 arriving at 2:11 a.m." The officer sated that the
Defendant's car contained an open beer can on the front seat,
three-quarters full,18 and that the Defendant gave his height as
seven foot three inches.19
Bobbi R. Mentzer, a special agent for the Cumberland County
District Attorney's Office 20 and certified In�oxilizer 5000
10
N.T. 11.
11 N.T. 15.
12 N.T. 16-17.
13 N.T. 18.
14 N.T. 17-20, 34.
15 N.T. 21.
16 N.T. 21-22.
17 N.T. 23.
is N.T. 31, 34.
19 N.T. 27, 32-33.
20 N.T. 48.
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No. 2014 Criminal 1991
operator, 21 testified that she administered breath tests to the
Defendant at 2:33 a.m. and 2:34 a.m., with results in each case of
.112%. 22 A videotape of the procedure at the boot ing center was
also shown to the jury, wherein Defendant said that he had consumed
five beers between 8:30 and midnight, two of them within the
previous three hours.23
Dr. G. Thomas Passananti, a clinical and forensic
toxicologist, 24 was called as an expert by the Commonwealth.25
Dr. Passananti's curriculum vitae included a bachelor's degree in
chemistry, a master's degree in biochemistry,Lnd a Ph.D in
biochemistry from Penn State University, a post -doctoral fellowship
in clinical and forensic toxicology at the University of Michigan
Medical School, and special training in forensic toxicology in the
coroner's office in Cleveland, Ohio.26 He stated that he was
responsible for over 50 scientific and medical publications, two of
21
N.T. 50.
22 N.T. 61.
23 Commonwealth's Exhibit 7, N.T. 101; see Illalso N.T. 103.
There is no suggestion in the evidence that the Deflendant consumed
any alcohol from the time of his arrest to the timle of the breath
tests. See N.T. 21-24.
24 N.T. 71.
25 N.T. 75.
26 N.T. 71.
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No. 2014 Criminal 1991
which were landmark papers on metabolism of alcohol in humans.27
His expertise in the area of his testimony was notichallenged.ze
Dr. Passananti testified as to the process of absorption of
alcohol29 and the study of the time passage of dhrugs through a
body.'° Included in his testimony on direct examination was the
following exchange:
27
2e
29
Q Now, if I were to give you a situittion
where someone has a blood alcohol test result
at 2:30 of a .112 percent, can you tell the
jury what that individual's blood alcohol
concentration was at 1:30?...
A Yes, I can.
Q ... What can we say about the amount
of alcohol by the way of blood at 1:30 a',.m.?
A Well, alcohol disappears from the
blood at the rate of .015 and .020 percent per
hour. The average is 0.018 percent per
hour.... [I]f he had a blood alcohol level of
.112 percent at 2:30, and he lost .018 petcent
in that hour between 1:30 and 2:30, his �lood
alcohol level at the time he was stopped Would
have been a ... .130 percent
N.t. 72-73.
N.T. 75-98.
N.T. 76.
30 N.T. 77.
31 N.T. 77-79.
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No. 2014 Criminal 1991
Giving the Defendant "the benefit of the doubt or the benefit
of the situation, and saying that he had a full bottle of beer in
his stomach when he was stopped," Dr. Passananti testified that his
blood alcohol level would still have been ".115 percent at the time
he was stopped.i32 Giving the Defendant an even (greater benefit
of the doubt and assuming that he had two bottleslof beer in his
stomach at the time he was stopped, Dr. Passanantillbalculated that
"he would still have [had] a BAL of .1 [percent] at',the time he was
stopped.to
33
Asked to assume that the Defendant had dr4nk five beers
between 8:30 and midnight, Dr. Passananti stated that "the highest
blood alcohol level possible would have been a 1075 percent. ,34
The effect of this testimony, in view of the considerably higher
test result obtained, was to cast doubt upon Defenjdant's estimate
of the quantity of alcohol he had consumed.
On cross-examination, Dr. Passananti stated that he had not
been present during the playing of the videotape," where Defendant
32 N.T. 81. Defendantas g ave his weight 24pounds. ounds. N.T.
9
27. This factor was a premise upon which the a pert relied in
calculating a putative increase in blood alcoho� level in the
Defendant's case of .015 percent for each bottle of1beer that might
be consumed. N.T. 80.
33 N.t. 96.
34 N.T. 81; see note 32 supra.
35 N.T. 84.
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No. 2014 Criminal 1991
estimated his beer consumption, 36 and that his assumption that the
Defendant claimed to have had five beers was a hypothetical premise
posed by the Commonwealth's attorney.37 He conceded that work by
Dr. Kurt Dubowsky and Dr. Charles Winek had shown that certain
individuals are "outliers" with respect to metabolism of alcohol,
falling outside the norm;38 but he suggested that) "the Court is
interested in reasonable scientific certainty," 39 noting that "[i]n
a thousand people you may only find two outliers ,40 He stated
that the setting of the Intoxilizer 5000 machin4 assumes that
"there is as much alcohol in one cc of blood profusiing the lungs as
there is in 2100 cc's expirated air, X41 and that this assumption
actually results in a lower blood alcohol level reading from the
machine than is correct.42 He testified that time and amount of
alcohol consumption are very important with re$pect to blood
alcohol levels."'
Defendant, in his post -verdict motion, relies dpon the case of
36 N.t. 84.
37 N.T. 84-85.
38 N.T. 88-89.
39 N.T. 88.
40 N.t. 89.
41 N.T. 90.
42 N.t. 91-92.
43 N.T. 93.
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No. 2014 Criminal 1991
Commonwealth v. Jarman, Pa. , 601 A.2d 1229 (1992), in
connection with his assertion that the Commonwealth's expert
testimony was so speculative and self-contradictory that it left
the jury free to engage in unbridled speculation as to blood
alcohol level .44 The testimony of the expert in Jarman, however,
is distinguishable from that of the Commonwealth's witness herein.
In Jarman, the prosecution's expert conceded that, if the
i
defendant's uncontradicted testimony as to the time of alcohol
consumption were credited, the defendant's blood alcohol level
would probably have been less than .10 percent at the time of
driving.45 In the present case, the thrust of the expert testimony
was that even if the Defendant's claim of consumption of two beers
in the time period recited above were credited, ;and if it were
further assumed that neither beverage had yet affected his blood
alcohol content while he was driving, the test tesult obtained
would not suggest a blood alcohol level of less than .10% at the
44
Defendant's Motion in Arrest of Judgment or in the Alternate
for a New Trial, paragraph 6.
45 Commonwealth v. Jarman, Pa. , „ 601 A.2d 1229,
1231 (1992). l
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No. 2014 Criminal 1991
time he was stopped."
Defendant, in his post -verdict motion, further; complains that
the testimony of the Commonwealth's expert w4s based upon
information that he did not obtain in court; in his brief,
Defendant asserts that "the hypothetical given to [the
Commonwealth's expert] was not accurate. The hypothetical related
that five beers were consumed between 8:30 and midhight....i47
"The testimony of an expert may be in the form of fact or
opinion, and an opinion may be based upon personal observation or
hypothetical question. A hypothetical question may be based upon
such matters as facts recited by the questioner and appearing in
46 See note 33 supra and accompanying text.
The case of Commonwealth v. Gonzalez, 519 P4. 116, 546 A.2d
26 (1988), cited in Defendant's Brief in Support of Post -Trial
Motions, is similarly unsupportive of Defendant's position. In
Gonzalez, a conviction for driving under the influence of alcohol
was reversed where the Commonwealth's expert was 4sked to assume
that defendant's blood alcohol level had peaked while he was
driving, a fact not in evidence; in the present case, the expert
made no such assumption, and in fact assumed fpr purposes of
argument that the two beers which Defendant said he had consumed in
the three hours preceding the inquiry at the booking center had not
yet affected his blood alcohol content when he w4s stopped. As
Judge Bayley has stated in a similar case, "[s]ince the ... opinion
[of Dr. Passananti herein] was [not] based on an 4ssumption that
[D]efendant's blood alcohol level had ... peaked at;the time of the
stop, [D]efendant's reliance on ... Gonzalez ...lis misplaced."
Commonwealth v. Reigel, No. 17181 Criminal 1991 (Cumberland Co.
1992) (slip op. at 6).
47 Defendant's brief in Support of Post -Trial Lotions, at 2-3.
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No. 2014 Criminal 1991
evidence and upon testimony actually heard by thel expert ......4e
In the present case, it was not necessary that the expert be in
court during the showing of the videotape u0on which the
hypothetical was based. Furthermore, the premise of the
hypothetical consisted of the Defendant's own ,statements as
contained on the tape, which was admitted into evidence.
Based upon the foregoing review of the law and the record, the
Court is unable to conclude that, when viewed in the light most
favorable to the Commonwealth, the evidence was ihsufficient to
enable the trier of fact to find every element of the crime beyond
a reasonable doubt. In addition, the foregoing review does not
lead to a conclusion that the verdict was so cdntrary to the
evidence, however viewed, as to shock one's sense o� justice. For
these reasons, the motions of Defendant in arrest of judgment and
for a new trial must be denied.
ORDER OF COURT
�
AND NOW, thisday of November, 1992, uponI consideration
of Defendant's post -verdict motions in arrest of juldgment and for
a new trial, the motions are DENIED. Sentence is dejferred pending
receipt by the Court of a presentence investigation report.
Defendant is directed to appear for sentence at thel call of the
48 Oler, Pennsylvania Criminal Law: Defendant'Is Mental State
§5.6, at 105-06 (1986) (footnotes omitted) (emphasi� added).
11 �I�
No. 2014 Criminal 1991
District Attorney.
Alison Taylor, Esq.
Assistant District Attorney
H. Anthony Adams, Esq.
Assistant Public Defender
Probation Office
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BY THE COURT,
J. Wesley Oler, Jr.'
J.
IIS
SII
II
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