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HomeMy WebLinkAbout96-2034 CRIMINALCOMMONWEALTH MORMAN RANDALL ALLISON OTN: E757332-2 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-2034 CRIMINAL CHARGES: (1) DUI (2) CARELESS DRIVING IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 HOFFER, P. J. In this criminal case, the defendant has appealed to the Pennsylvania Superior Court from a judgment of sentence following a non-jury trial in which the Court found him guilty of driving under the influence and careless driving. In his Concise Statement of Matters Complained of On Appeal, defendant Allison claims there was not sufficient evidence to prove that he was intoxicated to a degree which rendered him incapable of safe driving under (a)(4) of the Pennsylvania DUI statute. 75 Pa. Cons. Stat. Ann. § 3731(a)(4).1 After reviewing the evidence, the Court finds that there was sufficient evidence to sustain a guilty verdict on the charges of driving under the influence and careless driving. 1 (a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances... (4) STATEMENT OF THE FACTS The test for sufficiency of the evidence in a criminal case has been stated by the Pennsylvania Superior Court as follows: The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising there from upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Barnes, 310 Pa. Super. 480, 482-483, 456 A.2d 1037, 1038 (1983). Moreover, the Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence. Commonwealth v. Gease, 548 Pa. 165, 168, 696 A.2d 130, 132, cert, denied 522 U.S. 935, 139 L. Ed. 2d. 266, 118 S. Ct. 343 (1997). Additionally, the trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio, 764 A.2d 582, 585 (Pa. Super. Ct. 2000) (quoting Commonwealth v. Griscavaqe, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)). The trial in the defendant's case commenced on April 15, 2002. The evidence presented at trial, viewed in the light most favorable to the While the amount of alcohol by weight in the blood of: (i) an adult is 0.10% or greater. 2 Commonwealth, is that on the evening of November 18, 1996, the defendant caused a vehicular collision between his vehicle and the vehicle of Major Victor Badami, United States Army, on the Route 581 ramp from Interstate 81 in Cumberland County, Pennsylvania. The ramp onto Route 581 at the exit from Interstate 81 is two lanes. As Major Badami entered onto the ramp he was traveling in the left-hand lane (N.T. 4, Trial, April 15, 2002 (hereinafter N.T. hundred feet ahead of him in the right )). He noticed a pickup truck fifty to a lane driving erratically (N.T. 10-11). Specifically, he observed the truck fishtail, pull over to the right-hand shoulder as if to stop, and then suddenly dart across both lanes (N.T. 4, 8, 11). At that time Major Badami did not observe any hazard in the road, anything running across the road, or anything interfering with the path of the truck's travel (N.T. 8). When the truck came across both lanes, it struck the front of Major Badami's vehicle (N.T. 4). When Major Badami applied the brakes, the truck continued to move forward and subsequently crashed head-on into the guardrail (N.T. 5). As a result Major Badami hit the back end of the truck (Id.). When the vehicles came to rest Major Badami got out of his vehicle and approached the truck driver, defendant Allison, to inquire about his well-being (N.T. 6). As the men spoke, Major Badami noticed a "very distinct odor, [a] strong odor that I believed to have been alcohol" (Id.). There was no one else in or around the truck (N.T. 7). Pennsylvania State Trooper Linette Quinn, formerly Linette Perrin, was called to the scene of the accident (N.T. 13). When she arrived, defendant Allison approached her and said, "this was my fault" (Id.). At that time she "could smell a strong odor of alcoholic beverage upon him" (Id.). His eyes were glassy and bloodshot (Id.). As he spoke with her, he turned his head away as if he did not want her to look at him or see him (N.T. 14). When she asked him if he had had anything to drink that evening, he stated that he had not (Id.). At that point she requested that he blow his breath into her face. When he did, "it was a strong odor of alcoholic beverage that [she] could smell" (N.T. 15). Trooper Quinn did not perform any field sobriety tests at that time, though, because defendant Allison indicated that he had a pin in his leg (N.T. 16). Because of his deformity and the grade in the road at the scene of the accident, for his safety the tests were not performed (Id.). But at trial Trooper Quinn testified that in her professional opinion defendant Allison was under the influence of alcohol to the extent that had rendered him incapable of safe driving. (Id.). Defendant Allison testified that his erratic driving and loss of control of his truck were due to a thrown "cold cap" or retread from an eighteen wheeler traveling ahead of him on Route 581 (N.T. 20-21). He stated that he had had nothing to drink that day (N.T. 21). He testified that he informed Trooper Quinn of the tread in the roadway (N.T. 23). In addition, he testified that he had a cut on his head from hitting the windshield of his vehicle during the collision (N.T. 23). On recall, Trooper Quinn testified that she did not see a tread in or near the roadway, and there was nothing in her report that indicated that defendant Allison had told her about such a tread (N.T. 25). Her report also notes no injuries to the 4 parties involved in the accident (N.T. 26). Also, the photograph of defendant Allison taken that evening due to the charges shows no cut on his head (Id.). After Trooper Quinn placed defendant Allison under arrest for driving under the influence of alcohol, the defendant was transported to Holy Spirit Hospital and given the opportunity to submit to a blood alcohol screening (N.T. 17). Trooper Quinn informed him of his implied consent warnings pursuant to the Department of Transportation's (DOT) implied consent form, DL 26, "chemical testing warning and report of refusal to submit to chemical testing as authorized by Section 1547 of the Vehicle Code." (Id.). Subsequently he refused to submit to the tests, and instead signed the DL 26 (N.T. 18). DISCUSSION Under Pennsylvania law the offense of driving under the influence of alcohol or controlled substance is defined as, "[a] person shall not drive, operate or be in actual physical control of the movement of a vehicle... [w]hile under the influence of alcohol to a degree which renders the person incapable of safe driving." 75 PA. CONS. STAT. ANN. § 3731(a) (West 1996). In order to prove a violation of this section, the Commonwealth must show: (1) that the defendant was the operator of a motor vehicle and (2) that while operating the vehicle, the defendant was under the influence of alcohol to such a degree as to render him or her incapable of safe driving. Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000)(citing Commonwealth v. Verticelli, 550 Pa. 435, 448, 706 A.2d 820, 826 (1998); Commonwealth v. Downinq, 739 A.2d 169, 173 (Pa. Super. 1999)). To establish the second element, it must be shown that alcohol has substantially impaired the normal mental and physical faculties required to safely operate the vehicle. Commonwealth v. Montini, 712 A.2d 761, 768 (Pa. Super. 1998). Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Id. Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving. Commonwealth v. Feathers, 442 Pa. Super. 490, 660 A.2d 90, 95 (1995) (en banc ), affirmed, 546 Pa. 139, 683 A.2d 289 (1996); Commonwealth v. Kowalek, 436 Pa. Super. 361,647 A.2d 948,952 (1994). In addition, the Court in Palmer asserts that a police officer who has perceived a defendant's appearance and acts is competent to express an opinion as to the defendant's state of intoxication and ability to safely drive a vehicle. Palmer, 751 A.2d at 228 (citing Commonwealth v. Feathers, 442 Pa. Super 490, 660 A.2d 90, 95 (1995)). In Feathers, the officer's observations of the defendant with glassy eyes, slurred speech and the odor of alcohol were sufficient to sustain the defendant's DUI conviction. Feathers, 660 A.2d at 96. In the case at bar, Trooper Quinn's first-hand observations of the defendant combined with Major Badami's account of the accident and observation of the defendant provide a sufficient basis for Trooper Quinn's assessment of the defendant's intoxication level necessary to sustain his DUI conviction. Both Trooper Quinn and Major Badami observed not only the defendant acting as if under the influence of alcohol at the time of the accident, but also the odor of alcohol surrounding him. In addition, there was no observation by either party of the retread that the defendant claims caused his erratic driving. No evidence of the retread in the roadway combined with the observations of the defendant by Trooper Quinn and Major Badami serve as sufficient evidence for the Court to determine that the defendant was in fact driving under the influence of alcohol to a degree which rendered his driving unsafe. The Court finds that the accident was caused by the defendant's careless driving while under the influence of alcohol. '7