Commonwealth v. Houck

102 A.3d 443

2014 PA Super 213

COMMONWEALTH of Pennsylvania, Appellee

v.Robert HOUCK, Appellant.

No. 2709 EDA 2011

Superior Court of Pennsylvania.

Submitted April 23, 2012.

Filed Sept. 26, 2014.

Reargument Denied Nov. 25, 2014.

Brett J. Riegel, Stroudsburg, for appellant.

Douglas J. Jacobs, Assistant District Attorney, Milford and Jessica H. Lathrop, Assistant District Attorney, Milford, for Commonwealth, appellee.

BEFORE: GANTMAN, J., FITZGERALD, J.^* and PLATT, J.^**

Opinion

OPINION BY GANTMAN, J.:

Appellant, Robert Houck, appeals from the judgment of sentence entered in the Pike County Court of Common Pleas, following his jury trial conviction for driving under the influence (“DUI”).¹ We affirm.

The trial court opinion set forth the relevant facts of this case as follows:

On March 21, 2010[,] Trooper Ives was on patrol working from three p.m. to eleven p.m. Trooper Ives was traveling on Roemersville Road in Greentown, Pike County, when he came behind a large Ford pickup truck. Traveling behind the truck for approximately two miles, Trooper Ives observed the vehicle weaving across the lane of travel crossing the double yellow line and onto the fog line for some distance before Trooper Ives activated his lights.

Trooper Ives identified Appellant as the person driving the vehicle. He then approached the vehicle and after initiating a conversation with Appellant detected an odor of an alcoholic beverage emanating from Appellant's breath. Appellant indicated that he had [drunk] two beers. Trooper Ives transported Appellant, in custody, back to the Pennsylvania State Police barracks.

Trooper Ives stopped Appellant at 20:32 and began to transport Appellant back to the barracks at 21:19. At the barracks, Trooper Ives read Appellant his Implied Consent Warnings, after which Appellant agreed to give a breath sample.

Appellant blew into the Data Master DMT which is approved in the Commonwealth for purposes of performing blood alcohol concentration tests. Prior to administering the test, Trooper Ives observed [Appellant] for twenty minutes to determine that he had not vomited or smoked or consumed alcohol.

Trooper Ives also was required to run a blank test with Appellant in an adjacent room. Between the two rooms is a two way mirror so Appellant could be observed, and Appellant was no more than five to ten feet from Trooper Ives. Given the arrangement of the rooms, Trooper Ives admitted that he could not observe Appellant while Trooper Ives was running the blank test. However, when entering the room, Trooper Ives did not see any indications that Appellant drank an alcoholic beverage or had smoked or vomited. The test was reported on the machine as 20:34. Trooper Ives determined the time stamp on the machine was incorrect and left a note for his supervisor. Trooper Ives noted that the correct time of the test was 21:34.

There were two samples of Appellant's breath taken that night: the first registered a 0.170 per cent; the second registered a 0.171 per cent. As Trooper Ives is required by law to take the lower sample, the final result of Appellant's breath test was a 0.170 per cent.

Trooper Kevin Varco, is the Maintenance Officer for the Data Master DMT. He testified regarding the various calibrations that must be done to maintain the machine's accuracy. The machine was tested for accuracy on March 21, 2010, the day Appellant's breath was tested. He also explained that the machine's time was incorrect due to a failure in adjusting it to daylight saving's time.

At the beginning of [Appellant's] case in chief, James Gifford testified that the condition of Roemersville Road is rated as the worst it could be. The road is in deplorable condition with pot holes. He also testified that people drive over the center lines in order to avoid the hazards on the road. However, he could not testify as to how the road's condition related to Appellant's blood alcohol concentration.

Trooper Ives was recalled for rebuttal and testified that he took into account the road's condition when he decided to pull Appellant's vehicle over. Trooper Ives observed areas of the road that Appellant could have safely kept his vehicle in the lane of traffic and there were several areas that the road was in good condition in which Appellant did not have to cross the center lines in order to drive safely. With that both sides rested.

(Trial Court Opinion, dated December 5, 2011, at 1–4). We add the following from the certified record. The Commonwealth charged Appellant with one count of DUI under 75 Pa.C.S.A. § 3802(c) and two summary traffic offenses. Appellant filed a motion to suppress the traffic stop for lack of reasonable suspicion/probable cause, which the court denied after a hearing. The case proceeded to a jury trial on Count 1, Section 3802(c) DUI; the parties agreed the court would adjudicate the summary offenses.

At the close of the trial, the court instructed the jury to first determine if Appellant had driven his vehicle and, within two hours of driving, Appellant had a blood alcohol content in excess of 0.08%. If the jury answered “yes” to that inquiry, the court instructed the jury to select the highest BAC range that the Commonwealth had proven beyond a reasonable doubt: 0.08% to 0.09%; 0.10% to 0.159%; or 0.16% and above. The verdict slip contained identical instructions. Significantly, Appellant did not object to the jury charge or to the verdict slip. On May 18, 2011, the jury found Appellant guilty of DUI of 0.08% or higher and selected a BAC range of 0.10% to 0.159%. Appellant did not object to that verdict when entered. The court also found Appellant guilty of the summary offenses of careless driving and driving on roadways laned for traffic.

Over two months later, Appellant filed a motion for extraordinary relief at sentencing on July 28, 2011. Appellant asserted the Commonwealth had charged him with only one count of DUI (BAC in excess of 0.16%) under Section 3802(c). According to Appellant, the jury's chosen BAC range of 0.10% and 0.159% meant that the jury had actually acquitted Appellant of Section 3802(c) as charged. Based on the jury's factual finding of a BAC range lower than charged, Appellant asked the court to enter a verdict of “not guilty” on the only charge in the information. (See Motion for Extraordinary Relief, filed 7/28/11, at 1–2.) The court denied the motion. The court then sentenced Appellant to thirty (30) days to six (6) months' imprisonment, plus fines and costs covering the DUI and summary convictions. The court's sentence was consistent with a sentence for a Section 3802(b) DUI conviction. The court continued Appellant's bail pending an appeal, provided an appeal was timely filed. Appellant timely filed a post-sentence motion on August 4, 2011, asserting essentially the same challenge to his DUI conviction and sentence. Following a hearing on the post-sentence motion, on September 6, 2011, the court denied the motion.² Appellant timely filed a notice of appeal on October 5, 2011. On October 11, 2011, the court ordered Appellant to file a concise statement of errors complained on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on November 1, 2011.

Appellant raises three issues for our review:

DID THE TRIAL COURT [ERR] WHEN IT REFUSED TO ENTER A VERDICT OF NOT GUILTY AS IT EFFECTIVELY DID NOT ACCEPT THE JURY'S FINDING OF FACT THAT APPELLANT DID NOT HAVE A BLOOD ALCOHOL CONTENT OF 0.160% OR HIGHER, A NECESSARY ELEMENT OF COUNT I?

DID THE TRIAL COURT COMMIT ERROR WHEN IT ENTERED A VERDICT NOT SUPPORTED BY SUFFICIENT EVIDENCE IN LIGHT OF THE JURY'S FINDING OF FACT?

DID THE TRIAL COURT COMMIT ERROR IN HOLDING THAT PROBABLE CAUSE EXISTED TO TAKE APPELLANT INTO CUSTODY, SUBJECT HIM TO A BREATH TEST AND SUBSEQUENTLY ADMITTING THE BREATH TEST AFTER THE EVIDENCE SHOWED THE SAME TO BE UNRELIABLE?

(Appellant's Brief at 7).

In issues one and two, Appellant argues the Commonwealth charged him with only one count of DUI, under Section 3802(c), which requires proof beyond a reasonable doubt that, within two hours of driving, Appellant had a BAC of 0.16% or higher. Appellant claims the criminal information did not list a charge under Section 3802(b), where the BAC is between 0.10% and 0.159%. Appellant avers the jury's finding of a BAC of 0.10% to 0.159% was inconsistent with a conviction under Section 3802(c), which requires a BAC of 0.16% or higher. Appellant complains the Commonwealth did not move to amend the information to include the lower BAC levels. Appellant asserts the jury's finding of a BAC in the range of 0.10% to 0.159% precludes a conviction under Section 3802(c) as a matter of law, because the jury effectively convicted Appellant of Section 3802(b) DUI, an offense not charged. Appellant contends the jury's factual finding of a BAC of 0.10% to 0.159% meant that the court was obligated to enter a “not guilty” verdict on the only charge in the information. Appellant rejects any notion that the guilty verdict on Section 3802(b) DUI was permissible as a conviction of a “lesser-included offense.” Appellant relies on Commonwealth v. Jackson, 82 Pa. D. & C.4th 225 (Crawford County 2007) to suggest that a Section 3802(b) offense cannot be a lesser-included offense of a Section 3802(c) offense because they are “mutually exclusive.” Appellant likewise rejects the court's conclusion that his conviction was simply the result of an inconsistent or compromise verdict, because Appellant was charged with only one offense.

Appellant further maintains the jury specifically determined the evidence did not prove one of the necessary elements of Section 3802(c) as charged, i.e., a BAC of 0.16% or higher. Appellant states: “The jury concluded that the evidence of a BAC of 0.160% or higher was ‘so weak and inconclusive’ that it found a BAC ... between 0.10% and 0.159%.” (Appellant's Brief at 14). Appellant submits the jury found the evidence was insufficient to support an element of the crime charged. For these reasons, Appellant concludes...