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HomeMy WebLinkAboutCP-21-CR-1463-2006 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CHARGE: (1) DUI - GENERAL IMPAIRMENT WITH REFUSAL, 3rd MANDATORY; (2) DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKED (DUI RELATED) (Summary) RONALD G. COOK OTN: L279412-0 CP-21-CR-1463-2006 IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 EBERT, 1., January 11,2007. In this criminal case, Defendant was found guilty of the above charges following a jury trial. He was sentenced to not less than 12 months, nor more than 36 months, in a state correctional institution on the charge of Driving Under the Influence with Refusal, 3rd Mandatory, to run consecutive with a sentence of not less than 60 days, nor more than 90 days, to be served in a state correctional facility on the charge of Driving Under Suspension, DUI- Related. Both of these sentences were the mandatory minimum sentences required under the Pennsylvania VehicIe Code. From the judgment of sentence, Defendant has filed an appeal to the Pennsylvania Superior Court. The bases for appeal have been expressed in a statement of matters complained of on appeal as follows: 1. The Court erred in allowing the DL-26 form to be admitted into evidence, when the Defendant objected to its admission based on the form not being turned over in discovery and being offered by the Commonwealth only after the trial began. 2. The language used in the DL-26 form does not provide defendant with adequate notice of the penalties and may also be misleading. This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS On February 19,2006, shortly after midnight, the Upper Allen Township Police Department received a report from the store clerk at Turkey Hill Minit Market in Upper Allen Township, Cumberland County. The clerk reported that two intoxicated men had just left in a red Ford Bronco, driven by defendant, and provided the police with the license plate number. One of the men had reportedly broken the glass in a picture frame located in the store restroom.l Two police officers from Upper Allen Township responded separately to the call; Officer Parthemore arrived at Turkey Hill to speak with the clerk who had made the call, and Officer Dombroski located the vehicle at a nearby Sheetz store, confirming the license plate number. Officer Dombroski observed the defendant get into the driver's side of the vehicle and turn left out of Sheetz onto South Market Street. Officer Parthemore, who had left the Turkey Hill, was now traveling on South Market Street. Officer Parthemore, driving a marked patrol car, stopped the defendant's vehicle, and Officer Dombroski pulled in behind both vehicles.2 At a jury trial held on September 27,2006, a video tape of the traffic stop conducted by Officer Parthemore was shown to the jury. Officer Parthemore stated that as he approached the vehicle, he confirmed that the driver of the vehicle, the defendant, matched the description given by the Turkey Hill clerk. He also observed that the defendant showed signs of intoxication, including bloodshot eyes and the odor of an alcoholic beverage emanating from his breath. Officer Parthemore administered a number of standardized field sobriety tests which the defendant failed? At that time Officer Parthemore concluded that the defendant was incapable of safe driving and placed him under arrest.4 Officer Parthemore testified that, after placing the defendant in the rear of his patrol car, he read from his department-issued implied consent card, 1 Police Criminal Complaint, dated February 22, 2006. 2 Notes of Transcript of trial held on September 27,2006, at 24-27 (hereinafter "NT at _"). 3 NT 57-63. 4 NT 64. 2 requesting that the defendant submit to a chemical test. Although the defendant's response on the videotape is inaudible, Officer Parthemore testified that the defendant refused the test. The defendant was then taken to Cumberland County Prison ("CCP"), to be processed at the Central Processing Center. At that time, Officer Parthemore testified that he read "word for word" PennDOT form DL-26 (2-05) to the defendant, again requesting that the defendant submit to a chemical test. 5 Officer Parthemore testified that the defendant signed the form, and again refused the test. The signed DL-26 (2-05) form was then submitted to PennDOT. 6 Defense counsel had requested the DL-26 (2-05) form as part of discovery, but the Commonwealth failed to produce the form until the day of the trial. Although the Commonwealth provided the defense with all other requested discovery, the DL-26 (2-05) form was not included because the Officer never made a copy of it at the time of processing and the original was submitted to PennDOT. 7 As a result of the Commonwealth's discovery violation, this Court ruled that the faxed copy of the form could not be presented to the jury. It was admitted to the record, and Officer Parthemore testified that he read the form to the Defendant. 8 The defendant did not present any evidence. The jury returned a verdict of guilty on the charge of Driving Under the Influence, General Impairment, and specifically found that the defendant refused to give a sample of his blood or breath for testing. The court found the defendant guilty of the summary charge of Driving While Operating Privilege is Suspended or Revoked, DUI-Related. DISCUSSION 1. Admission ofDL-26 (2-05) Form into Evidence If at any time during the course of proceedings it is brought to the court's attention that a party has failed to comply with the rules governing discovery, the court may order 5 NT 70. 6 NT 72. 7 NT 43-46 8 NT 73-74. 3 that party to permit discovery or inspection, may grant a continuance, or may prohibit the party from introducing undisclosed evidence, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances. Pa. R. Crim. P. 573(E).9 A defendant seeking relief from a discovery violation must demonstrate prejudice resulting from the violation. Com. v. Johnson, 727 A.2d 1089 (Pa. 1999). The trial court has broad discretion in choosing the appropriate remedy for a discovery violation. Com. v. Johnson, 727 A.2d 1089 (Pa. 1999), reargument denied (June 28, 1999), and cert. denied, 120 S.Ct. 1180 (2000); Com. v. Jones, 668 A.2d 491 (Pa. 1995), reargument denied (Jan. 16, 1996), and stay granted, 684 A.2d 551 (1996). A trial court's imposition of a remedy for a discovery violation under Rule 573(E), or its election not to impose any such remedy, will normally not be disturbed on appeal absent a finding by the appellate court of abuse of discretion. Com. v. Galloway, 771 A.2d 65 (Pa. Super. 2001). In the present case, the Commonwealth bore the burden of producing the signed DL-26 (2-05) form requested by the Defendant in discovery. Because the form was not given to defense counsel (nor was it received by the Commonwealth) until the trial was underway, the jury was not permitted to view the form, and the Commonwealth was not permitted to display the form during its argument, and was forced to rely only on the testimony of Officer Parthemore that he read the DL-26 (2-05) form to the defendant and that the defendant signed it. Defendant failed to make the requisite showing of prejudice to justify preventing the admission of the DL-26 (2-05) form into the record. Although defense counsel did not receive a copy of the actual DL-26 (2-05) form signed by the defendant until the day of trial, the officer stated in his report that he did read the DL-26 to defendant who then signed the form. Defense counsel did have a copy of this report. Because the existence of the signed DL-26 form was known to defense counsel, the lack of a physical copy was not prejudicial in light of the officer's testimony, which was the sole evidence considered by the jury in evaluating the defendant's refusal. The Commonwealth was sanctioned, 9 Formerly Rule 305(E). 4 and the defendant still has the benefit of attacking the inadequacy of the DL-26 (2-05) form. 2. Adequacy ofDL-26 (2-05) Form The Pennsylvania Superior Court recently held that the DL-26 (12-03) form used to inform defendants of the consequences of refusing a chemical test was misleading in that it only apprised them of the potential consequences to a first-time offender, rather than the more severe penalties for refusal that would apply to a person with multiple DUI offenses. Com. v. Jaggers, 903 A.2d 33 (Pa. Super. 2006). The Jaggers court concluded that, despite the misleading warnings, the defendants' refusals should not have been suppressed, but that the proper remedy was to impose sentence as if the defendant had not refused chemical testing - as if the defendants were first-tier offenders. Id. at 38. In response to Jaggers, the DL-26 was revised in February, 2005, and again in August, 2006. The defendant in this case, having read and signed the (2-05) revision before refusing chemical testing, now argues that the (2-05) version of the form remained inadequate and that the remedy imposed by the Jaggers court to the (12-03) form should apply for sentencing purposes. The Superior Court held in Jaggers that, while there is no general requirement that offenders have to be advised of all the details of a law and are presumed to know the law, the Implied Consent Law requires police to provide a clear and concise warning of the consequences of refusing an alcohol test. Id. at 35 (see also 18 Pa.C.S. 9304, 9 1547(b )(2)(ii)). The problem with the DL-26 (12-03) form, according to the Court, was that it failed to explain the situation in plain English and also "distort[ ed] the situation by implying a more lenient penalty than otherwise required for repeat offenders." Id. at 36. In fact, the DL-26 (12-03) only set forth the minimum penalties for refusal, which would apply only to a first-time offender, and thus actually encourage refusal. The (12-03) form referenced a "minimum of seventy-two hours in jail," which is less than the five-day minimum a second-time offender would receive, or the ten days a third-time or subsequent offender would receive for a low alcohol level infraction (BAC between .08% 5 and .10%), or the 30 and 90 days that second and subsequent offenders would receive for a high alcohol level infraction. Id. The DL-26 (2-05) used in this case made the following revisions to the (12-03) form examined by the Jaggers court (additions are underlined): ".. .ifyou refuse to submit to the chemical test, your operating privilege will be suspended for at least 12 months, and up to 18 months, if you have prior refusals or have been previously sentenced for driving under the influence." "In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(I) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, which include a minimum of 72 hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in iail and a maximum fine of $10,000.,,10 In the latest revision of the form (8-06), additional language was added and also emphasized in bold type (changes are underlined): "In addition, if you refuse to submit to the chemical test, and you are convicted of or plead to violating Section 3802(a)(I) (relating to impaired driving) of the Vehicle Code, because of your refusal, you will be subject to the more severe penalties set forth in Section 3804(c) (relating to penalties) of the Vehicle Code, the same as if you would be convicted of drivin2: with the hi2:hest rate of alcohol, which include a minimum of 72 consecutive hours in jail and a minimum fine of $1,000.00, up to a maximum of five years in jail and a maximum fine of $10,000.,,11 The Court in Jaggers, referring to the (2-05) revision of the form used in this case, stated that "[w]e understand that PennDot has further revised Form DL-26.. . While this is slightly better than the original, we express no opinion as to whether this comports with 10 PennDOT Form DL-26 (2-05), "Chemical Testing Warnings and Report of Refusal to Submit to Chemical Testing as Authorized by Section 1547 of the Vehicle Code in Violation Section 3802." 11 PennDOT Form DL-26 (8-06), "Chemical Testing Warnings and Report of Refusal to Submit to Chemical Testing as Authorized by Section 1547 of the Vehicle Code in Violation Section 3802." 6 the requirement of giving adequate notice to offenders contemplating refusal." Id. at 37, FN9. Unlike the (12-03) form, the (2-05) form read to and signed by the defendant informed him of the most severe sanctions to which he submitted himself by refusing chemical testing, and reference to these maximums must be presumed to provide greater encouragement for offenders to take the test. While the newest (8-06) revision of the form may more clearly spell out the reasoning behind the heightened penalties (the refusing offender is presumed to have the highest blood alcohol level), the notice of the severity of consequences presented in the (2-05) version presented the defendant in this case with adequate notice of the consequences of his refusal. His refusal was therefore properly considered in sentencing. BY THE COURT, M.L. Ebert, Jr., 1. Christin Mehrtens-Carlin, Esquire Assistant District Attorney Michael Halkias, Esquire Assistant Public Defender 7