Commonwealth v. Benvenisti-Zarom

229 A.3d 14

COMMONWEALTH of Pennsylvania

v.Luna BENVENISTI-ZAROM, Appellant

No. 342 EDA 2019

Superior Court of Pennsylvania.

Submitted November 4, 2019

Filed February 11, 2020

Allan L. Sodomsky, Reading, for appellant.

Kevin Steele, District Attorney, Stanley J. Konoval, Assistant District Attorney, and Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Luna Benvenisti-Zarom appeals the judgment of sentence entered by the Court of Common Pleas of Montgomery County after Appellant was convicted of aggravated assault by vehicle while driving under the influence (DUI), aggravated assault by vehicle, DUI (general impairment), DUI (high rate of alcohol), recklessly endangering another person (REAP), and several summary offenses. After careful review, we affirm.

The trial court aptly summarized the factual background and procedural history of the case as follows:

On February 21, 2017, at approximately 11:22 p.m., at mile marker 20.9 of the northbound Northeast Extension (Interstate 476), a Honda Accord driven by [Appellant] collided with a Volkswagen Passat being driven by Kelley Tansley ("Victim"). Pennsylvania State Trooper Gregory Neely arrived at the accident scene shortly afterwards and observed [Appellant] lying on the ground by the driver's door of the Honda Accord. Trooper Neely's assessment of the scene led him to conclude the accident was the result of a head[-]on collision caused by [Appellant's] vehicle traveling southbound in the far left northbound lane of the Northeast Extension.

[Appellant] was grabbing her stomach and yelled at Trooper Neely to "go away." The trooper believed [Appellant] was injured. EMS workers subsequently moved [Appellant] into an ambulance which had arrived at the scene several minutes later. Trooper Neely spoke with [Appellant] while she was seated in the ambulance and noted the strong odor of alcohol on her breath.

Following a time period of approximately thirty (30) to forty-five (45) minutes, the ambulance transported [Appellant] to a helicopter which had landed on the Northeast Extension. The helicopter airlifted [Appellant] to Thomas Jefferson University Hospital ("Jefferson Hospital") in Philadelphia, PA for treatment of injuries she sustained in the accident. During the time period in which [Appellant] was seated in the ambulance, Trooper Neely did not ask [Appellant] to take a blood test because she was being treated by medical personnel. At the accident scene, authorities towed [Appellant's] vehicle after she was airlifted to Jefferson Hospital. Pennsylvania State Trooper Richard Hawkins subsequently received instructions to see [Appellant] at Jefferson Hospital.

Upon [Appellant's] arrival at Jefferson Hospital, an examination revealed she required surgery for her injuries. At 1:20 a.m. on February 22, 2017, medical personnel administered 100 mcg of Fentanyl to [Appellant] to relieve her pain. At 1:55 a.m., Trooper Hawkins arrived at Jefferson Hospital and was able to speak with [Appellant] in one of the medical rooms. The trooper asked [Appellant] questions regarding how the accident occurred. In her responses to the trooper's questions, [Appellant] indicated that she was at a friend's house earlier in the evening where she had consumed three glasses of wine. [Appellant] did not recall how the crash occurred. Trooper Hawkins suspected [Appellant] had driven under the influence of alcohol and advised her that she was under suspicion for DUI. The trooper subsequently read to [Appellant] from a DL-26B form. [Appellant] consented to a blood draw and although she was unable to sign the DL-26B form due to multiple "tubes" in her hand, [Appellant] provided oral consent. Trooper Hawkins observed the blood draw, which occurred at 2:02 a.m. and later transported the blood specimen to Trooper Neely. Test results performed on [Appellant's] blood indicated a [blood alcohol content (BAC) ] of .127%. On April 19, 2017, authorities formally charged [Appellant with the aforementioned offenses].

Trial Court Opinion ("T.C.O."), 6/6/19, at 1-3.

On December 17, 2017, Appellant filed a motion for discovery in which she sought the "black box" from her vehicle that would contain information about her direction of travel at the time of the accident. Initially, the Commonwealth did not investigate Appellant's car, which was towed from the accident scene. On February 11, 2018, the prosecutor responded in an email that the Commonwealth did not have a black box in its possession. In a subsequent hearing, the prosecutor asserted that he did not have possession of a black box from Appellant's vehicle, had never sought black box data before, and had not researched how to obtain such data.

Thereafter, the defense submitted an accident reconstruction report, in which its expert concluded that Appellant was not traveling southbound in the northbound lane of the Northeast Extension when the accident occurred. The report criticized the prosecution for failing to obtain black box data from Appellant's vehicle.

In response, the prosecution sought the assistance of Pennsylvania State Police (PSP) expert Sergeant Charles Burkhardt, who concluded that finding the black box from Appellant's vehicle was necessary to rebut the claims in the defense's accident reconstruction report. After locating the black box from Appellant's vehicle in a junkyard in Carbon County, Sergeant Burkhardt obtained a warrant to obtain the black box, analyzed the data, and produced a report in which he concluded that Appellant's vehicle was traveling southbound in the far left northbound lane of the Northeast Extension when the accident occurred. Sergeant Burkhardt entered the black box into evidence, provided the defense a copy of the data along with his expert report, and provided Appellant an opportunity to inspect the black box. Thereafter, Appellant did not file a request to inspect the black box.

On August 14, 2018, Appellant filed a motion to suppress (1) her blood test results, (2) statements she made to the police and (3) the black box seized from her vehicle. On the same day, Appellant also filed a motion to dismiss the charges, as she claimed, inter alia , the Commonwealth violated discovery rules by misleading the defense regarding the existence of the black box. Appellant claimed that she could not afford to commission an expert to perform a new accident reconstruction report using the black box data. On August 17, 2018, the Commonwealth filed a Motion in Limine to preclude portions of the report of defense expert Dr. Hedva Shamir.

On August 31, 2018, the trial court denied Appellant's suppression motion and her motion to dismiss the charges. However, to avoid unfair prejudice, the trial court permitted Appellant to obtain a new accident reconstruction report and restricted the Commonwealth from presenting its accident reconstruction report or its expert testimony based on the black box data in its case in chief. If the defense's expert referenced the black box data on direct examination, the Commonwealth would be permitted to offer its corresponding accident reconstruction evidence in rebuttal.

In addition, the trial court granted the Commonwealth's motion in part, finding inter alia , that Dr. Shamir was prohibited from testifying as to the "validity of Appellant's consents." Order, 8/31/18, at 1. However, the trial court also indicated that the Commonwealth's motion was denied in part as Dr. Shamir would be permitted to testify as to the medical conditions of Appellant and the victim as a result of the automobile accident. At trial, Appellant chose not to present Dr. Shamir as a witness and did not attempt to offer her accident reconstruction report into evidence.

On September 26, 2018, the jury found Appellant guilty of aggravated assault by vehicle while DUI, aggravated assault by vehicle, REAP, and two counts of DUI, while the trial court found Appellant guilty of all the summary offenses. After her sentence was imposed, Appellant filed a timely appeal and complied with the trial court's direction to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises seven issues for our review on appeal:

1. Whether the Trial Court erred in denying Appellant's pretrial motion to suppress the results of Appellant's blood alcohol test where there was no warrant and a lack of consent?

2. Whether the Trial Court erred in denying Appellant's pretrial motion to suppress where the blood draw occurred after the two-hour window required under 75 Pa.C.S.A. § 3802(b) and was done without good cause shown for violation of that rule?

3. Whether the Trial Court erred in excluding the proffered testimony of Appellant's expert witness Hedva Shamir, M.D., on the question of consent?

4. Whether the Trial Court erred in allowing the Commonwealth the opportunity to present expert testimony regarding consent?

5. Whether there was prosecutorial misconduct so egregious that it prevented Appellant from having a full and fair opportunity to respond on the issues of fault and causation where the Commonwealth failed to timely recover and produce to the defense the black box from Appellant's vehicle?

6. Whether the Trial Court erred in permitting the Commonwealth to show to the jury the accident/scene reconstruction video created by the Pennsylvania State Police which was highly prejudicial as it was not probative of the details of the accident?

7. Whether the Trial Court erred in permitting the Commonwealth to present the opinion of Trooper Neely as to how the accident occurred when such testimony was tantamount to an expert opinion without Trooper Neely having been qualified as such and that opinion was critical to the issues of causation and fault in the case?

Appellant's Brief, at 6-7 (reordered for ease of review).

Appellant's first two arguments challenge the trial court's decision to deny her ...