COMMONWEALTH OF PENNSYLVANIA v. DWAYNE KARL CRABLE, Defendant

Transcription

1 36 COMMONWEALTH OF PENNSYLVANIA v. DWAYNE KARL CRABLE, Defendant Vol. 105 Defendant s DUI conviction under 75 Pa.C.S.A. 3802(c) Should be Affirmed: Defendant s Right to a Jury Trial, Sufficiency of the Evidence Standard, Two-Hour Limit that Blood must be Drawn for DUI Cases. 1. A criminal defendant has no constitutional right to a jury trial if the maximum sentence he is facing is six months or less, and this includes a first time DUI offense. 2. When there is a challenge to the sufficiency of the evidence on appeal, every element of the offense must be met, although all reasonable inferences from the evidence are in favor of the Commonwealth. 3. To sustain a conviction under 75 Pa.C.S.A. 3802(c), the Commonwealth must demonstrate that the defendant s blood was drawn within two hours after the defendant had driven, operated, or been in actual physical control of the movement of an automobile. 4. However, there is a good cause exception to this two-hour rule under 75 Pa.C.S.A. 3802(g), whereby a defendant s DUI conviction may be sustained based upon blood-alcohol level even if the blood test is done beyond this two-hour limit. Summary: In the case sub judice, the trial court ruled that the defendant, who was facing a first time DUI offense where the maximum sentence was six months incarceration, had no right to a trial by jury. Furthermore, the trial court found that the evidence supporting the DUI conviction was sufficient because the defendant s blood was drawn at 12:18 AM, and the witness testified that he had found the defendant asleep behind the wheel of his running car within one hour of his signed statement of events, which was signed at 11:15 PM. However, even if this is outside of the two-hour requirement, the good cause exception to the two hour rule was established, because the state police were covering another jurisdiction and there was a 20 to 25 minute drive to the barracks to take the defendant s blood. COMMONWEALTH OF PENNSYLVANIA v. DWAYNE KARL CRABLE, DEFENDANT, IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA, CRIMINAL DIVISION No. 1706/11 Alissa R. Hobart, Esquire, Assistant District Attorney for the Commonwealth Francis M. Walsh, Esquire, Attorney for the Defendant Memorandum Opinion, John A. Boccabella, J. August 28, 2012 On May 9, 2012, at the conclusion of non-jury trial before this Court, Dwayne Crable (hereinafter, Defendant ) was found guilty of two counts of Driving Under the Influence of Alcohol ( DUI ) 1 and one count of Obstructing Highways and Other Public Passages 2. On June 6, 2012, Defendant filed a Notice of Appeal with the 1 75 Pa.C.S.A. 3802(a)(1) and 75 Pa.C.S.A. 3802(c) Pa.C.S.A. 5507(a).

2 Vol. 105 Superior Court of Pennsylvania. On June 14, 2012, this Court ordered Defendant to file a Concise Statement of Matters Complained of on Appeal ( Concise Statement ), pursuant to Pa.R.A.P. 1925(a). On June 29, 2012, Defendant filed a timely Concise Statement raising two claims of error. The following issues have been set forth for appellate review: I. Did the trial court err by denying [Defendant] his right to jury trial under the Pennsylvania Rules of Criminal Procedure? 37 II. Did the trial court err in finding the [Defendant] guilty of driving under the influence of alcohol under 3802(c) where the evidence clearly showed that the blood test was performed more than two (2) hours after any movement of [Defendant s] vehicle while [Defendant] was behind the steering wheel? Factual Summary On December 6, 2010, at approximately 10:00 p.m., George McBlane was driving southbound on Red Shale Drive in Douglass Township, Pennsylvania when he observed a vehicle that was situated partly on the roadway and partly in the yard of a nearby property. Notes of Testimony, Bench Trial, May 9, 2012 (hereinafter, N.T. ), p. 7. Mr. McBlane described the vehicle as being on a forty-five degree angle such that it was halfway in the driving lane, thus, forcing him to drive around the vehicle. Id. After passing the vehicle, Mr. McBlane turned around and approached the vehicle to see if there was a problem with the vehicle. N.T., pp Mr. McBlane walked up to the vehicle and began knocking on the driver s side window. N.T., p. 8. The person in the driver s seat of the vehicle, later identified as the Defendant, Dwayne Crable, did not respond. Id. As a result, Mr. McBlane opened the driver s side door and shouted, Wake up, hello, wake up, while jostling the Defendant s shoulder. Id. With the Defendant still unresponsive after approximately one minute, Mr. McBlane called 911. Id. Mr. McBlane further testified that when he approached the vehicle, its front wheels were on the grass and its rear wheels were on the roadway. N.T., p. 11. In addition, he testified that the car was running, so he reached in and turned off the ignition while he was on the telephone with the 911 operator. N.T., p. 17. Mr. McBlane testified that he spent approximately five to ten minutes on the telephone with the 911 operator. N.T., p. 11. It was after that phone call and approximately fifteen minutes after Mr. McBlane s arrival that a female, later identified as the Defendant s wife, came to the scene, and moved the Defendant into the passenger seat and parked the vehicle in the garage of the residence. N.T., pp Also at trial, the Commonwealth offered the testimony of Trooper Stephen Spotts of the Pennsylvania State Police. N.T., p. 24. Trooper Spotts testified that he was on duty the night in question when he received a dispatch to the scene of

3 38 Vol. 105 an alleged motor vehicle accident at 202 Red Shale Drive in Douglass Township at approximately 10:22 p.m. N.T., p. 25. Trooper Spotts testified that it took him twenty to twenty-five minutes to drive to the scene from the state police barracks. N.T., p. 26. Upon arriving on scene, Trooper Spotts initially made contact with the Defendant s wife. Id. Shortly thereafter, the Defendant exited the nearby residence and identified himself as the person who was in the vehicle when Mr. McBlane called police. N.T., p. 29. Trooper Spotts testified that he asked the Defendant if he had been drinking, to which the Defendant stated that he had several mixed drinks at the Pottstown Quoits Club. N.T., p. 30. The Defendant was subsequently arrested for suspicion of DUI. On December 7, 2010, at 12:18 a.m., a sample of the Defendant s blood was drawn and collected by a phlebotomist employed by Quality Medical laboratories, which is a division of St. Joseph s Medical Center in Berks County, Pennsylvania. See Stipulation entered on May 9, 2012 between the Commonwealth and defense counsel, Francis Walsh, Esquire (hereinafter, Stipulation ). The amount of alcohol, by weight, in the Defendant s blood was determined to be 0.302%. See Stipulation. Discussion The first issue on appeal is whether the trial court erred in denying the Defendant a jury trial under the Pennsylvania Rules of Criminal Procedure for a first offense charge of DUI. The Sixth Amendment to the United States Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. U.S. Const. amend. VI. In addition, the Constitution of the Commonwealth of Pennsylvania provides that [t]rial by jury shall be as herertofore, and the right thereof remain inviolate. P.A. Const. art. 1, 6. However, under both the United States Constitution and the Pennsylvania Constitution, only a defendant accused of a serious offense must be given the option of a jury trial. Commonwealth v. Mayberry, 327 A.2d 86 (Pa. 1974). The legislature has categorized 3802(a)(1) as a petty crime for purposes of a defendant s jury trial rights. Commonwealth v. Kerry, 906 A.2d 1237, 1239 (Pa. Super. 2006). Although there is no statutory definition of a serious offense, for purposes of these provisions, a crime is serious if it carries a maximum sentence of greater than six months incarceration. Codispoti v. Pennsylvania, 418 U.S. 506 (1974) (Emphasis added). There is no right to a jury trial if an offense bears a maximum sentence of incarceration of six months or less. Commonwealth v. Harriot, 919 A.2d 234 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). Much like a defendant charged with multiple petty offenses, the fact that the potential exists for an aggregate sentence exceeding six months incarceration does not entitle such a defendant to a jury trial. Commonwealth v. Kerry, 906 A.2d 1237, (Pa. Super. 2006). See Lewis v. United States, 515 U.S. 322, 327 (1996) (stating that a the right to a jury trial does not attach to a defendant charged with two

4 Vol. 105 petty offenses which could potentially result in an aggregate prison term of greater than six months). Applying the principles set forth in Blanton v. North Las Vegas, 489 U.S. 538, 543 (1989), the United States Supreme Court found that first time DUI offenders, where the maximum authorized prison sentence does not exceed six months, are not entitled to a jury trial. Kerry, supra, at 1239, citing Blanton. In the case sub judice, the Defendant argues that under the common law of Pennsylvania, a defendant always had a right to a jury trial for any misdemeanor. However, the Defendant fails to acknowledge that more recently only a defendant accused of a serious offense has the right to a trial by jury. Furthermore, the legislature has determined that a 3802(a)(1) violation is categorized as a petty offense. Additionally, while there is no statutory definition for a serious offense, case law has distinguished a serious offense from a petty offense in that a serious offense carries a maximum sentence of greater than six months incarceration, whereas a petty offense carries a maximum sentence of incarceration of six months or less. See Commonwealth v. Harriot, 919 A.2d 234 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). Here, the Defendant is charged with a first time DUI offense, which is a petty offense. Accordingly, the Defendant is not entitled to a trial by jury on the matter. Next, the Defendant argues that the Court erred in finding him guilty of DUI where the blood test was performed more than two hours after any movement of the Defendant s vehicle. Although the Defendant s issue is plausible, this Court did not commit an error in finding that the two-hour rule has been satisfied. Section 3802 of the Vehicle Code provides: (c) Highest rate of alcohol. An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual s blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle. 75 Pa.C.S.A. 3802(c). The Vehicle Code provides the following exception to the two-hour rule: (g) Exception to two-hour rule. Notwithstanding the provisions of subsection (a), (b), (c), (e), or (f), where alcohol or controlled substance concentration in an individual s blood or breath is an element of the offense, evidence of such alcohol or controlled substance concentration more than two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle is sufficient to establish that element of the offense under the following circumstances: 39

5 40 Vol Pa.C.S.A (g). (1) where the Commonwealth shows good cause explaining why the chemical test sample could not be obtained within two hours; and (2) where the Commonwealth establishes that the individual did not imbibe any alcohol or utilize a controlled substance between the time the individual was arrested and the time the sample was obtained. When reviewing a challenge to the sufficiency of the evidence, we must determine if the Commonwealth established beyond a reasonable doubt each of the elements of the offense, considering the entire trial record and all of the evidence received, and drawing all reasonable inferences from the evidence in favor of the Commonwealth as the verdict-winner. Commonwealth v. Pruitt, 951 A.2d 307, 313 (Pa. 2008). The Commonwealth may sustain its burden of proof by wholly circumstantial evidence. Commonwealth v. Kennedy, 959 A.2d 916, 921 (Pa. 2008), cert. denied, 129 S.Ct (2009). In making such an evaluation, the appellate court may not weigh the evidence and substitute its judgment for that of the fact-finder. Commonwealth v. Derr, 841 A.2d 558, 560 (Pa. Super. 2004). Any questions or doubts are to be resolved by the trier of fact, unless the evidence is so weak that no probability of fact may be drawn from the circumstances as a matter of law. Commonwealth v. Newsome, 787 A.2d 1045, 1047, 1048 (Pa. Super. 2001). In the case at hand, the Defendant s claim of error is strictly limited to the time in which the Defendant s blood was withdrawn. The Defendant avers that the blood withdrawal occurred beyond the two-hour time period provided in 75 Pa.C.S.A. 3802(c). In making such averment, the Defendant is essentially asking the appellate court to re-weigh the evidence and substitute its judgment for that of the fact-finder. The material evidence that this Court relied on in making its ruling establishes beyond a reasonable doubt that the Defendant s blood alcohol content was 0.16% or higher within two hours after the Defendant had driven, operated or been in actual physical control of the movement of the vehicle. Here, Mr. McBlane observed the vehicle partially on the public roadway at approximately 10:00 p.m. N.T., p. 7. When he turned around and exited his vehicle to see if there was a problem with the Defendant s vehicle, he noticed the vehicle s engine was running and the Defendant was asleep in the driver s seat. He then unsuccessfully attempted to awaken the Defendant before calling 911 and reaching over the Defendant to turn the vehicle off. N.T., p. 11. At the time, the Defendant was the vehicle s sole occupant and seated in the driver s seat. In addition, Trooper Spotts testified that he received the dispatch to 202 Red Shale Drive in Douglass Township at approximately 10:22 p.m. N.T., p. 25. Trooper Spotts also testified that the amount of time it takes for Berks Radio to transfer a

6 Vol. 105 phone call to dispatch is approximately two to five minutes. N.T., p. 31. Trooper Spotts further testified that it took him approximately twenty to twenty-five minutes to drive from the state police barracks in Reading to Red Shale Drive in Douglass Township 3 on the date and time in question. N.T., p. 25. After Trooper Spotts arrived on scene, conducted his investigation, arrested the Defendant for suspicion of DUI, transported the Defendant to Quality Medical Laboratories, the sample of the Defendant s blood was withdrawn and collected at 12:18 a.m. on December 7, See Stipulation. This Court finds the respective testimonies of Mr. McBlane and Trooper Spotts to be credible. Although Mr. McBlane could not testify precisely as to the time it was when he turned the engine off in the Defendant s vehicle, the circumstantial evidence 4 when combined with the dispatch time of 10:22 p.m., leads this Court to conclude that the Commonwealth satisfied the two-hour rule pursuant to 75 Pa.C.S.A. 3802(c), beyond a reasonable doubt. Arguendo, even if the two-hour rule was not satisfied, the Commonwealth satisfied the good cause exception to the two-hour rule, pursuant to 75 Pa.C.S.A. 3802(g). This case involves unique circumstances in that the Pennsylvania State Police cover the jurisdiction of Douglass Township when the Douglass Township Police Department does not have adequate staff. Thus, the twenty to twenty-five minute commute from the Reading barracks to 202 Red Shale Drive shows good cause explaining why the chemical test could not be obtained within two-hours of the Defendant driving, operating, or being in actual physical control of the vehicle. In addition, there was no evidence suggesting the Defendant consumed alcohol between the time of his arrest and the time his blood was withdrawn. For all of the foregoing reasons, this Court respectfully requests that the Defendant s appeal be DENIED Trooper Spotts noted that Douglass Township has a part-time police department and as a result, the Pennsylvania State Police cover for Douglass Township Police Department when Douglass Township does not have adequate staff. N.T., p This Court notes that Mr. McBlane testified that at 11:15 p.m. he signed a statement regarding the events that he witnessed on the night in question. N.T., p. 21. He further testified that the execution of the statement occurred less than one hour after the incident. Id.