Commonwealth v. Diehl

140 A.3d 34

2016 PA Super 93

COMMONWEALTH of Pennsylvania, Appellee

v.Matthew Scott DIEHL, Appellant.

No. 258 MDA 2015

Superior Court of Pennsylvania.

Submitted Jan. 19, 2016.

Filed April 28, 2016.

Anthony J. Tambourino, Public Defender, York, for appellant.

Renee E. Franchi, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Matthew Scott Diehl (“Appellant”) appeals from the judgment of sentence of 9 ½ to 19 years' imprisonment after a jury convicted him of Homicide by Vehicle while DUI, Homicide by Vehicle, Accidents Involving Death or Personal Injury, DUI General Impairment 3rd, Duty of Driver in Emergency Response Area, and DUI High Rate 3rd.¹ Appellant was found not guilty of Third Degree Murder.² He contends the trial court erred when it allowed the Commonwealth to introduce evidence of his 2005 DUI conviction and alcohol awareness classes as evidence of malice in support of the Third Degree Murder charge, and he argues that the imposition of consecutive sentences represented an abuse of sentencing discretion. We affirm.

The following evidence was adduced at Appellant's criminal trial. At approximately 12:40 a.m. on April 27, 2013, Fire Chief Rodney Miller of the Loganville Fire Department had begun closing the southbound lanes of I–83 between the Glen Rock and Shrewsbury exits to allow for an emergency life-flight helicopter landing at the scene of a motor vehicle collision further south on the highway. In an effort to divert traffic, Chief Miller parked his Fire Chief's pick-up truck diagonally across both lanes. The truck was equipped with a 360–degree oscillating overhead emergency light on the roof in compliance with Motor Vehicle Code requirements for emergency response vehicles, and Chief Miller had activated side marking lights, rear taillights, and the oscillating red lights on the roof. N.T. 11/17/14 at 328, 567–68. Chief Miller was also wearing a reflective turncoat as he prepared the roadblock. Id. at 56.

Matthew Hopkins was driving southbound on the interstate that night. As he crested a hill about one-half mile before the Glen Rock exit, he could see flashing lights near the exit. Assuming there was a problem near the right shoulder, he first moved from the right lane into the left lane, but as he drew within about 300 yards he was able to see a large pickup truck with red flashing lights positioned across the left lane and partially into the right lane. Id. at 176–77, 206–07.

At that point, Hopkins decelerated from his approximately 70 miles-per-hour rate of travel and turned on his four-way flashers as he tried to ascertain the situation ahead. Id. at 175–77. By the time he was about 50 yards away, Hopkins was coasting at five to ten miles per hour and could clearly see the large pick-up truck with the red flashing lights on the roof. He also had no difficulty seeing that a person was coming out from behind the pick-up and heading toward the right shoulder of the highway. Id. at 178–79. In describing visibility at the scene, he noted both an absence of any glare from oncoming traffic, as there were no vehicles traveling on northbound Interstate 83 at the moment, and the presence of a full moon. Id. at 200–01.

At the time he saw a person attempting to cross the right lane, Hopkins also saw that an SUV had passed him to the right at a speed he estimated to be 50 miles per hour. Id. at 175. As the SUV went by the Fire Chief's truck, the right side of its front end struck the person at the shoulder of the highway, Hopkins said, propelling him some 20 feet high in the air before he landed at the side of the highway. The SUV continued driving, and Hopkins immediately pulled his vehicle to the side of the road and called 911 for emergency assistance.

Volunteer Firefighter Zach Immel of the Glen Rock Fire Department had responded to the motor vehicle collision further southbound on I–83 and was assigned the task of traffic control at that accident site. Id. at 226–27. Standing near a rescue truck used to stop traffic, Immel noticed a white Chevy Trailblazer with heavy front-end damage, including leaking, smoking, and “spidering” of the windshield. Id. at 227, 229. He first asked the driver, Appellant, if he was okay and then asked what happened. Appellant replied that he had hit a deer and was going to go home and call his insurance company in the morning. Id. at 228. To Immel, Appellant looked confident in telling his story and asking when the highway would open again. Id. at 231.

By this time, two or three other drivers had stopped behind Appellant's car, and they informed Immel that a pedestrian had been struck back at the Glen Rock exit and was lying on the side of the road. Id. at 233. Immel advised his assistant chief of the news and they sent out a dispatch for the state police to investigate Appellant's SUV. Id. at 235. When Immel subsequently returned to Appellant's car and advised him of the other drivers' report, he noticed a sudden change in Appellant's demeanor. Appellant now looked scared, asked whether he could have hit the pedestrian, and kept repeating that he thought he had hit a deer. Id. at 234. Appellant nervously got out of his car and lit a cigarette while pacing back and forth. Id. at 236.

Pennsylvania State Trooper Jonathan Confer had been dispatched in response to Matthew Hopkins' 911 call and was already at the accident scene involving Chief Miller when he received another dispatch informing that a suspect in the Miller accident was stopped at the accident scene two miles south on I–83. Id. at 268. Trooper Confer arrived several minutes later and asked Appellant how he damaged his SUV. Appellant explained that he was traveling in the left lane I–83 South and moved into the right lane after the car ahead of him activated its four-way flashers. Id. at 271. As he entered the right lane very near the Glen Rock exit he thought he struck a deer, although he told Trooper Confer he was not sure now. Id. He related that the deer came from the left side, crossed over in front of his vehicle, and then struck it. Id. When the trooper asked why he did not stop, Appellant gave no definitive answer. Id. at 275. Appellant also told the trooper that he was going about 55 miles an hour at the time. Id.³

During the interview, Trooper Confer detected the odor of alcohol on Appellant, as well as bloodshot and glassy eyes. Id. at 276–77. Appellant admitted to drinking three beers and a shot of liquor earlier that night. Id. at 277. The trooper administered field sobriety tests including a walking phase, in which the trooper recorded that Appellant started too soon and made an improper turn but had otherwise performed cleanly, and a one-leg stand, in which no signs of impairment were recorded. Id. at 302–03. In another section of the test sheet, Trooper Confer had recorded that Appellant was crying at some point during the test. Id. at 304. Yet, under the “attitude” section of the test sheet, the trooper checked “other” because, in his opinion, Appellant did not “seem to be too concerned with the incident itself, as far as learning that he possibly hit someone. He didn't seem like he was too concerned about it.” Id. at 314.

Trooper Confer arrested Appellant and Pennsylvania State Police Troopers Benjamin Eaken and Jordan Geisler transported him for a blood draw, which was performed at 1:56 a.m. Id. at 278, 396–98. The test revealed a .118 BAC. Id. at 514. After Appellant returned to the York Barracks, Pennsylvania State Trooper Jeffrey Gotwals of the Criminal Investigation Unit interviewed him at about 2:43 a.m. Id. at 472–73, 494. Trooper Gotwals initially observed Appellant to be very upset and crying, and he believed Appellant was under the influence of alcohol, although not to the degree where it impaired his ability to understand his Miranda rights, which Appellant elected to waive. Id. at 474, 495. Using a diagram of the highway, Appellant indicated to Trooper Gotwals how he moved into the right lane because the car in front of him had activated its flashers and parked in the left lane. Id. at 481–82. It was then that he struck a deer running across the highway, Appellant said. Id. at 482. At no point did Appellant state that he saw the Fire Chief's truck. Id.

In Trooper Gotwals' view, Appellant became increasingly upset as the interview progressed and expressed concern about what had happened to “the gentleman,” asking if there was any word on his condition. Id. at 499. It was at this point Appellant acknowledged that he hit a person rather than a deer, although Trooper Gotwals conceded that the admission could have resulted from everyone telling him he had hit a person. Id. at 500. In this respect, the trooper also confirmed that Appellant never went so far as to admit he had been lying about the deer all along. Id.

Forensic investigation of the accident scene and Appellant's SUV confirmed that Appellant struck Chief Miller. Id. at 569. To have done so without also striking the chief's truck, which had been parked in such a way as to extend about 5.5 feet into the right lane, would have required Appellant to drive his right-side tires about two feet across the fog line and onto the berm of the highway, investigators deduced. It followed that Chief Miller had reached the berm of the road before he was hit. Id. at 610–11. Upon impact, Chief Miller's body travelled over a 133–foot distance, during which he struck a metal pole at the base of the exit sign with enough force to cause his flannel shirt and reflective turncoat to come off. Id. at 577–78, 613. Based on this distance, investigators calculated Appellant's speed at anywhere from 41 to 59 miles per hour at the moment of impact. Id. at 620. There was no evidence of tire marks at the scene indicating braking or hard swerving on Appellant's part. Id. at 614–15.

A forensic engineer with expertise in collision reconstruction testified...