2011 PA Super 127
COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL TIMOTHY McKELLICK, Appellant
No. 906 EDA 2010
SUPERIOR COURT OF PENNSYLVANIA
Filed: June 20, 2011
BEFORE: FORD ELLIOTT, P.J., STEVENS, and DONOHUE, JJ.
OPINION BY STEVENS, J.:
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Monroe County on March 4, 2010, at which time Appellant Michael Timothy McKellick (hereinafter "Appellant") was sentenced to seventy-two (72) hours to six (6) months in prison, fines and costs, a license suspension for a period of one year and a requirement to complete the Alcohol Highway Safety Program. Upon a review of the record, we affirm the judgment of sentence.
In her Opinion in Support of Order Pursuant to Pa.R.A.P. 1925(a), the learned trial judge Margherita Patti Worthington aptly set forth the relevant facts and procedural history of the within matter as follows:
This matter is before us on [Appellant's] appeal of his conviction for Driving Under the Influence of Alcohol- Highest
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Rate of Alcohol, 75 Pa.C.S.A. § 3802(c). On November 25, 2008, a Criminal Complaint was filed charging [Appellant] with one count each of the following crimes: Driving Under the Influence of Alcohol- General Impairment (75 Pa.C.S.A. § 3802(a)(1)); Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)); Driving Without Valid License (75 Pa.C.S.A. § 1501(a)); Failure to Drive Within Single Lane of Traffic (75 Pa.C.S.A. § 3309(1)); Failure to Use Vehicle Restraint System (75 Pa.C.S.A. § 4581(a)(2)).
[Appellant] waived his preliminary hearing on April 8, 2009[,] and the charges were bound over to this [c]ourt. On June 2, 2009, [Appellant] waived formal arraignment, and a Criminal Information was filed on June 8, 2009[,] charging [Appellant] with Driving Under the Influence of Alcohol- General Impairment (75 Pa.C.S.A. § 3802(a)(1)), and Driving Under the Influence of Alcohol- Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)). [Appellant] filed a timely Petition for Habeas Corpus Relief which was denied by this Court on December 14, 2009. 1
After a bench trial held on February 8, 2010, [Appellant] was found guilty of Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)) and not guilty of Driving Under the Influence of Alchohol-General Impairment (75 Pa.C.S.A. § 3802(a)(1)). [Appellant] was sentenced on March 4, 2010, to a period of 72 hours to six months['] incarceration, a $1250.00 fine, and costs. Additionally, [Appellant] was sentenced to complete the Alcohol Highway Safety Program and undergo a license suspension for a period of one year.
[Appellant] filed a timely appeal on April 1, 2010, and a 1925(b) Statement on April 27, 2010. [Appellant] contends that this [c]ourt erred in convicting him without allowing him the opportunity to confront the affiant and arresting officer, in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004); that the evidence presented was not sufficient to sustain a conviction of Driving Under the Influence; and that the recording on the dash-cam was not sufficient to identify [Appellant] for purposes of conviction.
The facts in this case are as follows:
At approximately 1:12 A.M., on or about November 12, 2008, Pennsylvania State Trooper Joshua Miller was traveling south in a marked patrol vehicle on SR209. [Affidavit, 11/25/08] 2 . Trooper Miller observed a white Chevrolet Silverado in front of him sway slightly to the right side of the road, its passenger side tires crossing the white fog line. Id. Trooper
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Miller alleges that the Silverado then swerved sharply onto the right shoulder and came to a stop without using its turn signal. Id. When Trooper Miller approached the vehicle, he asked the driver, [Appellant] why he had swerved off the road. Id. [Appellant] replied that the truck had "stalled out." Id. [Appellant] produced a photo identification card, but was unable to provide Trooper Miller with the vehicle's registration and proof of financial responsibility, stating that the truck belonged to a friend. Id.
Trooper Miller alleged that he detected a strong odor of alcoholic beverage emanating from [Appellant] and noted that [Appellant's] eyes were "blood shot and glassy." Id. Trooper Miller asked [Appellant] how much he had to drink and [Appellant] replied that he had consumed two beers. Id. In response to a request by Trooper Miller, [Appellant] exited the vehicle, stumbling as he did so. Id. Trooper Miller then proceeded to conduct Standardized Field Sobriety Tests on [Appellant], to which he exhibited signs of intoxication. Id. A preliminary breathalyzer test indicated that [Appellant] had a blood alcohol content of 0.19% Id. Trooper Miller then placed [Appellant] under arrest and transported him to Pocono Medical Center where blood was drawn at 1:58 A.M. Id. A report received from Pocono Medical Center on November 17, 2008[,] indicated that [Appellant's] blood alcohol content at the time of testing was 0.23%. Id.
Following [Appellant's] arrest but prior to this matter proceeding to trial, Trooper Miller was tragically killed in the line of duty. 3 There are no surviving witnesses to the encounter between Trooper Miller and [Appellant] other than [Appellant] himself. However, Trooper Miller's patrol car was equipped with a dashboard-mounted video camera that activated when he turned on his emergency lights. Thus, the encounter between [Appellant] and Trooper Miller was visually recorded from the patrol vehicle's dashboard. The video depicts [Appellant] performing the field sobriety tests, but does not include audio. [Commonwealth's Exhibit 2].
1 In the Omnibus Pretrial Hearing, President Judge Ronald E. Vican held that the Commonwealth had sufficiently authenticated the videotape through the testimony of Corporal Hothouse, and that the Commonwealth had presented enough evidence to establish a prima facie case of Driving Under the Influence of Alcohol- General Impairment (75 Pa.C.S.A. § 3802(a)(1)), and Driving Under the Influence of Alcohol- Highest Rate of Alcohol
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(75 Pa.C.S.A. § 3802(c)). In addition to the reasoning set forth in this Opinion, we incorporate President Judge Vican's holding and rationale.
2 For the purposes of this Opinion, the one page Affidavit of Probable Cause filed by Pennsylvania State Trooper Joshua Miller on November 25, 2008[,] will be cited to as follows: [Affidavit, 11/25/08.].
3 Pennsylvania State Trooper Joshua D. Miller was killed on June 7, 2009[,] in Coolbaugh township, Monroe County, Pennsylvania, while attempting to rescue a 9-year-old boy from a kidnapping suspect.
Trial Court Opinion, filed June 11, 2010, at 1-3.
In his brief,1 Appellant presents the following Statement of Questions Presented:
A. Whether the trial court erred and abused its discretion in denying the Appellant the right to confront his accuser?
B. Whether the trial court erred and abused its discretion in that the evidence presented against him was not sufficient to sustain a conviction of driving under the influence?
C. Whether the trial court erred and abused its discretion in that the identification of [Appellant] was not sufficient to definitely ascertain his identity on the dash-cam of the state police vehicle for the purposes of conviction and all other evidence concerning his identity was hearsay which should not have been considered by the court?
Brief for Appellant at 14. We will consider these issues in turn.
Admission of evidence is within the sound discretion of the trial court, and this Court will find the trial court abused its discretion only where it is revealed in the record that the court did not apply the law in reaching its judgment or exercised manifestly unreasonable judgment or judgment that
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is the result of partiality, prejudice, bias, or ill will. In addition, it is the exclusive province of the finder of fact to determine the weight of relevant evidence. Commonwealth v. Mitchell, 883 A.2d 1096, 1110-1111 (Pa. Super. 2005) (citation omitted), appeal denied, 587 Pa. 688, 897 A.2d 454 (2006).
Whether a defendant has been denied his right to confront a witness is a question of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Atkinson, 987 A.2d 743 (Pa. Super. 2009). In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the right of confrontation, when the government attempts to introduce testimonial hearsay, requires that the witness who made the statement be unavailable for trial and that the defendant had a prior opportunity to cross-examine that witness. Crawford, supra. Statements made during police interrogations are testimonial. Id. at 68, 124 S. Ct. 1354. In addition, a "prior opportunity to cross-examine" may be satisfied if there is an opportunity to cross-examine the witness at trial. See Commonwealth v. Charlton, 902 A.2d 554, 560 (Pa. Super. 2006).
Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa. Super. 2010), appeal denied, 14 A.3d 826 (Pa. Feb 2, 2011) (emphasis added).
There are three basic types of evidence that are admitted into court: (1) testimonial evidence; (2) documentary evidence; and (3) demonstrative evidence. 2 McCormick on Evidence § 212 (5th ed. 1999). Presently, at issue is demonstrative evidence, which is "tendered for the purpose of rendering other evidence more comprehensible to the trier of...
