Com. v. Seibert

799 A.2d 54

COMMONWEALTH of Pennsylvania, Appellee, v. Clair E. SEIBERT, Jr., Appellant.

Superior Court of Pennsylvania.

Argued October 30, 2001.

Filed January 24, 2002.

Reargument Denied April 2, 2002.

Michael D. Dautrich, Reading, for appellant.

Patrick T. Barry, Asst. Dist. Atty., Reading, for Com., appellee.

Before STEVENS, LALLY-GREEN, and BROSKY, JJ.

STEVENS, J.

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County following Appellant's convictions for involuntary manslaughter, homicide by vehicle while driving under the influence, and two counts of driving while under the influence (DUI).¹ On appeal, Appellant raises seven allegations of error.² We affirm.

¶ 2 Appellant contends that the evidence was insufficient to support his convictions by the jury.³ "The law is settled in this Commonwealth that in reviewing the sufficiency of the evidence, the appellate court is required to review all the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, ... [as verdict winner]." Commonwealth v. Earnest, 386 Pa.Super. 461, 563 A.2d 158, 159 (1989) (citation omitted). "The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228, 1229 (1984) (citation omitted). Moreover, "it is clear that a jury may believe all or only a part of a witness' testimony, and so long as the verdict is supported by the evidence there is no basis for interference with the fact-finding function of the jury." Commonwealth v. Simpson, 316 Pa.Super. 115, 462 A.2d 821, 824 (1983) (citation omitted).

¶ 3 The facts and procedural history are as follows: On February 13, 1999, at approximately 12:50 a.m., Appellant was operating a Jeep Grand Cherokee northbound on Route 183 when he went into the southbound lane and struck a tractor-trailer head on. The tractor-trailer was stopped at a stop sign at the intersection of Route 183 and New Schaefferstown Road and was forty-five feet long with reflective strips along the bottom of the frame. The driver of the tractor-trailer dialed 911, and the police responded. ¶ 4 When the police and emergency personnel arrived at the scene, they discovered that the passenger in Appellant's vehicle, Thomas Wise, was deceased as a result of the accident and that Appellant sustained several injuries. Emergency personnel placed Appellant in an ambulance, and Pennsylvania State Trooper Cory James Remp asked Appellant about the accident. During this time, Trooper Remp noticed that Appellant's eyes were glassy and bloodshot, Appellant's breath smelled of alcohol, and his speech was slurred. N.T. 8/4/99 at 25-26; N.T. 12/15/99 at 207-208.

¶ 5 Trooper Remp investigated the road and discovered that Appellant's vehicle left no skid marks. He noted that the weather was clear and that the road was dry. N.T. 8/4/99 at 22. Believing that Appellant was driving while under the influence of alcohol, Trooper Remp asked his partner, Trooper James Marasco, to telephone the State Police in Reading so that a blood alcohol test would be performed on Appellant. Trooper Marasco did as he was asked. N.T. 8/4/99 at 43-44.

¶ 6 Appellant was eventually transported via helicopter to the Lehigh Valley Medical Hospital, and, at approximately 2:18 a.m, Craig A. Hanzl, an emergency room technician, drew samples of Appellant's blood. N.T. 8/4/99 at 67-71. At approximately 2:30 a.m., Pennsylvania State Trooper Christopher T. Lengle asked the emergency room nurse to draw blood from Appellant for a blood alcohol test. The nurse informed Trooper Lengle that a sample had been taken twelve minutes before the trooper had arrived, and that the trooper would not be permitted to speak to Appellant until the doctors felt it was appropriate. N.T. 8/4/99 at 48. Trooper Lengle did not specifically request that another sample of blood be taken for chemical testing pursuant to 75 Pa.C.S.A. § 3755.

¶ 7 At approximately 4:20 a.m., Trooper Lengle spoke with Appellant in the emergency room. Appellant told Trooper Lengle that he believed he slid on a wet road, but that he had about three beers that evening. N.T. 8/4/99 at 55-56. Trooper Lengle told Appellant that he was going to obtain the results of a blood alcohol test, to which Appellant agreed. N.T. 8/4/99 at 54. Trooper Lengle then directed a nurse to fill out a form, which Trooper Lengle signed, requesting that Appellant's blood be tested to determine a blood alcohol content and to obtain a copy of the test results. N.T. 8/4/99 at 60-61.

¶ 8 Appellant's blood test revealed that his blood alcohol content was .17%, Appellant was arrested, and Appellant was charged with numerous crimes. On July 1, 1999, Appellant filed a motion seeking to suppress the statements he made to Troopers Remp and Lengle and the results of his blood alcohol test. On August 4, 1999, a suppression hearing was held, and, on September 14, 1999, the trial court denied Appellant's motion to suppress.⁴

¶ 9 On November 24, 1999, Appellant filed a motion seeking to exclude several photographs taken at the scene of the accident and his blood alcohol test results, on the basis that the Commonwealth could not relate back Appellant's blood alcohol content to the time of the accident. The trial court denied the motion. N.T. 12/14/99 at 227.

¶ 10 Appellant proceeded to a jury trial on December 14, 1999, and, on that same date, the Commonwealth filed a motion seeking to exclude evidence of prior accidents which occurred at the intersection at issue. The trial court denied the motion. See N.T. 12/15/99 at 212. Following the trial, the jury convicted Appellant of homicide by vehicle while under the influence of alcohol, involuntary manslaughter, and two counts of driving while under the influence of alcohol. The trial judge found Appellant guilty of reckless driving, careless driving, driving on the right side of the highway, driving on roadways laned for traffic, and driving a vehicle at an unsafe speed.

¶ 11 On January 24, 2000, Appellant was sentenced to an aggregate of three years to seven years incarceration, and, on February 7, 2000, Appellant filed a post-sentence motion alleging, inter alia, that the verdict was against the weight of the evidence. The trial court denied the post-sentence motion, and, on March 1, 2000, Appellant filed a notice of appeal. The trial court ordered Appellant to file a statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), such a statement was filed, and the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

¶ 12 Appellant contends that (1) the evidence failed to show that Appellant acted in a reckless or grossly negligent manner as is required for involuntary manslaughter, (2) the evidence failed to prove that Mr. Wise's death was caused by Appellant drinking while under the influence of alcohol as is required for homicide by vehicle while driving under the influence of alcohol, (3) the evidence failed to show that Appellant was guilty of unsafe driving under 75 Pa.C.S.A. § 3731(a)(1), and (4) Craig Hanzl, an emergency technician, was unable to identify Appellant as the person from whom blood was taken at 2:18 a.m., and, therefore, the evidence failed to establish that Appellant's blood alcohol content was greater than .10% when he was driving the Jeep as is required under 75 Pa.C.S.A. § 3731(a)(4).

¶ 13 18 Pa.C.S.A. § 2504(a) provides that "[a] person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." "We have held that there is a difference between the term `negligently' as set forth in 18 Pa.C.S. § 302(b)(4) and `recklessly' as set forth in 18 Pa.C.S. § 302(b)(3). The latter definition encompasses gross negligence." Commonwealth v. Comer, 552 Pa. 527, 534, 716 A.2d 593, 597 (1998) (citation omitted). 18 Pa.C.S.A. § 302(b)(3) defines `recklessly' as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

¶ 14 75 Pa.C.S.A. § 3735(a) provides that "[a]ny person who unintentionally causes the death of another person as a result of the violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the second degree when the violation is the cause of death ...." (emphasis added).

¶ 15 With regard to DUI, 75 Pa.C.S.A. § 3731(a)(1) and (4) provides the following:

(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:

(1) While under the influence of alcohol to a degree which renders the person incapable of safe driving; or

* * *

(4) While the amount of alcohol by weight in the blood of:

(i) an adult is 0.10% or greater....

¶ 16 We conclude that there was sufficient evidence to establish that Appellant acted with the recklessness contemplated by the involuntary manslaughter statute. For example, Nicholas Schwartz, the driver of the tractor-trailer, testified that he was stopped at a stop sign with his headlights on when Appellant ran directly into the tractor-trailer, without stopping, at approximately 12:50 a.m. N.T. 12/14/99 at 141-142, 144, 139. Mr. Schwartz testified that the weather was clear and the road was dry. N.T. 12/14/99 at 151.

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