Commonwealth v. Best

120 A.3d 329

2015 PA Super 151

COMMONWEALTH of Pennsylvania

v.James L. BEST, Appellant.

No. 1628 WDA 2012

Superior Court of Pennsylvania.

Submitted Jan. 12, 2015.

Filed July 16, 2015.

Karen S. Hickey, Public Defender, Bedford, for appellant.

William J. Higgins, Jr., District Attorney, Bedford, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BOWES and ALLEN, JJ.

Opinion

OPINION BY FORD ELLIOTT, P.J.E.:

Appellant appeals the judgment of sentence imposed following his several driving under the influence (“DUI”) related convictions. Finding no error, we affirm.

On the evening of December 14, 2010, appellant was involved in a head-on collision with another vehicle on East Graceville Road in Breezewood. When Trooper Matthew J. Bonin approached appellant, appellant exhibited a strong odor of alcohol, slurred speech, and bloodshot, glassy eyes. (Notes of testimony, 3/6/12 at 170.) Bonin asked appellant how much he had had to drink, and appellant replied that he had consumed three or four beers. (Id. at 169–170.) Bonin testified that appellant admitted to him that he went into the opposite lane of travel, but that it was caused by him hitting a patch of ice. (Id. at 168–169.) According to Bonin, appellant failed field sobriety tests. (Id. at 170–172.)¹ Bonin then investigated appellant's car. Bonin did not possess a search warrant at the time, but subsequently presented an application to a magisterial district judge and was granted a warrant. (See Application for Search Warrant and Authorization, 12/15/10.) In appellant's vehicle, Bonin observed several open beer cans and a whisky flask. (Id. at 173.) When Bonin opened the flask, he observed a liquid that had an odor of alcohol. (Id. at 175–176.) Bonin also found a pipe and small amount of marijuana in the console of the vehicle. (Id. at 176–177.) Appellant refused chemical testing. (Id. at 191.) When Bonin later went to appellant's home to serve an arrest warrant, he overheard appellant telling his mother that he had consumed five or six beers. (Id. at 193.) Bonin testified that it was his opinion that appellant was under the influence of alcohol, impaired, and incapable of safe driving. (Id. at 192.)

Appellant stipulated at trial that his license was suspended at the time of the accident, and that he had been designated as a “habitual offender” by the Pennsylvania Department of Transportation as a result of prior offenses. (Id. at 197–198.) No details were given to the jury as to the nature of those prior offenses.

Testimony was also presented from the teenage occupants of the other vehicle. Kyle Frankenberry was driving and his girlfriend McKenna Sipes was in the passenger seat. (Id. at 113.) Frankenberry testified that just before the crash, he attempted to swerve to avoid the collision. (Id. at 113, 115.) Frankenberry was trapped in his vehicle after the crash and Sipes was unconscious. (Id. at 116.) Frankenberry was taken by ambulance to the hospital. (Id. at 117–118.) He remembered his dislocated leg being put back in place in his hip, but he did not recall the subsequent surgery. (Id. at 118.) Frankenberry spent seven days at this hospital and then five additional days at another hospital. (Id. at 119.) Finally, Frankenberry described the ongoing ill effects that the accident has had on his life. (Id. at 119–122.)

Sipes also testified. She remembered riding in the car that night, but almost nothing about the accident; her first memory was hearing one of the EMT's talking to her in the car. (Id. at 144–148.) She did state that neither she nor Frankenberry had had anything to drink that night and that Frankenberry was driving normally. (Id. at 146–147.) Sipes was in the hospital for six days and had hip surgery. (Id. at 149.) Sipes also described the ill effects that the accident has had on her life. (Id. at 149–153.)

Dr. Corey Schutt testified as to his treatment of both Frankenberry and Sipes for a dislocated hip and fractured pelvis.

(Id. at 76–80.) He described the injuries as serious and the surgery as intense. (Id. at 76–77.) Another trauma surgeon who treated the victims, Dr. Simon Lampard, also described the victims' various injuries. (Id. at 86–100.)

On March 7, 2012, the jury found appellant guilty of (2) counts of aggravated assault by vehicle while DUI; (1) count of accidents involving death or personal injury while not properly licensed; (1) count DUI general impairment; (1) count of habitual offenders; (1) count of reckless driving; (1) count of restriction on alcoholic beverages; (1) count driving under suspension, DUI related; (1) count driving on roadways laned for traffic; (1) count careless driving; (1) count of possession of a small amount of marijuana for personal use; and (1) count of possession of drug paraphernalia.² On May 7, 2012, the court imposed an aggregate sentence of 59 months' to 20 years' imprisonment. Post-sentence motions were denied on September 17, 2012, and a timely notice of appeal was filed on October 11, 2012.

Appellant raises the following issues on appeal:

I. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSES OF AGGRAVATED ASSAULT BY VEHICLE WHILE DUI, 75 Pa.C.S.A. § 3735.1, COUNTS 1 AND 2, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE: (a) CAUSATION, NAMELY, FAILED TO PROVE IN EACH COUNT THAT APPELLANT CAUSED SERIOUS BODILY INJURY TO THE VICTIM IN EACH COUNT AND/OR THAT THE ALLEGED VIOLATION OF 75 Pa.C.S.A. § 3802 CAUSED SERIOUS BODILY INJURY TO THE VICTIM IN EACH COUNT; (b) INTENT, NAMELY, NEGLIGENCE, IN EACH COUNT, AS PROVIDED AT 18 Pa.C.S.A. § 302(b) AND/OR (c) IN EACH COUNT, FOR THE NECESSARY LESSER–INCLUDED OFFENSE OF AN ALLEGED VIOLATION OF 75 Pa.C.S.A. § 3802, AS PROVIDED AT 75 Pa.C.S.A. § 3802(a)(1), THAT APPELLANT IMBIBED A SUFFICIENT AMOUNT OF ALCOHOL SUCH THAT HE WAS RENDERED INCAPABLE OF SAFE DRIVING, OPERATING OR BEING IN ACTUAL PHYSICAL CONTROL OF THE MOVEMENT OF THE VEHICLE.

II. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF ACCIDENT INVOLVING DEATH OR PERSONAL INJURY WHILE NOT PROPERLY LICENSED, 75 Pa.C.S.A. § 3742.1(a), COUNT 3, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE: (a) CAUSATION, NAMELY, THAT APPELLANT CAUSED THE ACCIDENT TO OCCUR AND/OR THAT APPELLANT'S SUSPENDED/REVOKED OPERATING PRIVILEGE HAD ANY CAUSATIVE EFFECT UPON THE ACCIDENT; AND/OR (b) INTENT, NAMELY, NEGLIGENCE AS PROVIDED IN 18 Pa.C.S.A. § 302(b).

III. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF POSSESSION OF A SMALL AMOUNT OF MARIJUANA, 35 P.S. § 780–113(a)(31)(i), COUNT 4, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE THAT APPELLANT POSSESSED, ACTUALLY OR CONTRUCTIVELY [sic], MARIJUANA.

IV. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF POSSESSION OF DRUG PARAPHERNALIA, 35 P.S. § 780–113(a)(32), COUNT 5, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVIDE THAT APPELLANT POSSESSED, ACTUALLY OR CONSTRUCTIVELY, DRUG PARAPHERNALIA.

V. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF DUI–GENERAL IMPAIRMENT–REFUSAL, 75 Pa.C.S.A. § 3802(a)(1), AS THE EVIDENCE AT TRIAL FAILED TO PROVE: (a) THAT APPELLANT IMBIBED A SUFFICIENT AMOUNT OF ALCOHOL SUCH THAT HE WAS RENDERED INCAPABLE OF SAFE DRIVING, OPERATING OR BEING IN ACTUAL PHYSICAL CONTROL OF THE MOVEMENT OF THE VEHICLE; AND (b) THAT APPELLANT REFUSED TO SUBMIT TO CHEMICAL TESTING.

VI. APPELLANT CHALLENGED [sic] THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF HABITUAL OFFENDERS, 75 Pa.C.S.A. § 6503.1, COUNT 7, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE APPELLANT HAD ACCUMULATED THE REQUISITE NUMBER OF CONVICTIONS FOR SEPARATE AND DISTINCT OFFENSES DESCRIBED AND ENUMBERATED [sic] IN 75 Pa.C.S.A. 1542(b) WITHIN A FIVE (5) YEAR PERIOD.

VII. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF RECKLESS DRIVING, 75 Pa.C.S.A. § 3736(a), COUNT 8, AS THE EDVIDENCE [sic] ADDUCED AT TRIAL FAILED TO PROVE THAT APPELLANT ACTED WITH WANTON OR WILLFUL DISREGARD FOR THE SAFETY OF PERSONS OR PROPERTY.

VIII. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF RESTRICTION ON ALCOHOLIC BEVERAGES, 75 Pa.C.S.A. § 3809(a), COUNT 9, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE THAT APPELLANT POSSESSED, ACTUALLY OR CONSTRUCTIVELY, AN OPEN BEVERAGE CONTAINER OR CONSUMED A CONTROLLED SUBSTANCE OR ALCOHOLIC BEVERAGE IN A MOTOR VEHICLE WHILE THE MOTOR VEHICLE WAS

LOCATED ON A HIGHWAY IN THIS COMMONWEALTH.

IX. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKED, 75 Pa.C.S.A. § 1543(b)(1.1), COUNT 10, AS THE EVIDENCE ADDUCEDC [sic] AT TRIAL FAILED TO PROVE APPELLANT HAD ANY AMOUNT OF ALCOHOL OR CONTROLLED SUBSTANCE IN HIS BLOOD.

X. APELLANT [sic] CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF DRIVING ON ROADWAYS LANED FOR TRAFFIC, 75 Pa.C.S.A. § 3309(1), COUNT 11, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE THAT APPELLANT FAILED TO MAINTAIN THE VEHICLE AS NEARLY AS PRACTICABLE ENTIRELY WITHIN A SINGLE LANE AND/OR THAT APPELLANT MOVED FROM THE LAND WITHOUT FIRST ASCERTAINING THAT THE MOVEMENT COULD BE DONE SAFELY.

XI. APPELLANT CHALLENGES THE SUFFICIENCY OF THE EVIDENCE TO CONVICT HIM OF THE OFFENSE OF CARELESS DRIVING, 75 Pa.C.S.A. § 3714, COUNT 12, AS THE EVIDENCE ADDUCED AT TRIAL FAILED TO PROVE THAT APPELLANT ACTED IN CARELESS DISREGARD FOR THE SAFETY OF PERSONS OR PROPERTY.

XII. APPELLANT ASSERTS THAT THE JURY'S VERDICTS ON COUNTS 1, 2, AND 3 WERE AGAINST THE WEIGHT OF THE EVIDENCE INASMUCH AS NO CREDIBLE TESTIMONY WAS PRESENTED ON CAUSATION, APPELLANT'S INTENT, THE VICTIMS' SERIOUS BODILY INJURIES, THE ALLEGATION THAT APPELLANT HAD IMBIBED A SUFFICIENT AMOUNT OF ALCOHOL TO RENDER HIM IN CAPABLE [sic] OF SAFE DRIVING OR OPERATION OF THE VEHICLE AND THE TESIMONY [sic] PRESENTED WAS NOT CREDIBLE.

XIII. APPELLANT ASSERTS

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