Opinion
No. 1153 WDA 2010
11-14-2011
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM BARKER, A/K/A WILLIAM HOWARD BARKER, JR., Appellant
Appeal from Judgment of Sentence June 7, 2010
In the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0006360-2009
BEFORE: BENDER, DONOHUE and PLATT, JJ. OPINION BY BENDER, J.:
Retired Senior Judge assigned to the Superior Court.
William Barker (Appellant) appeals from the judgment of sentence entered following his convictions for driving under the influence of a controlled substance under 75 Pa.C.S. § 3802(d)(2) and the summary offense of operating a vehicle without official certification of inspection pursuant to 75 Pa.C.S. § 4703(a). Appellant claims that his conviction for driving under the influence should be reversed due to insufficient evidence and because the police violated his rights under 75 Pa.C.S. § 1547(i) (relating to the right of a driver to request a chemical test). For the following reasons, we reverse.
The trial court summarized the facts of this case as follows:
Chief Michael Naviglia [of the Springdale Township Police] testified that in the early morning hours of February 15, 2009 he was patrolling on Freeport Road. At that time, he observed theTrial Court Opinion (T.C.O.), 1/20/11, at 2-6 (citations and footnote omitted). At the conclusion of a bench trial, the court found Appellant guilty of driving under the influence of a controlled substance and the summary offense. Appellant filed a post-sentence motion, which the court denied. Appellant then filed this appeal presenting the following two questions for our review, which we have summarized for the sake of brevity.
vehicle being driven by Defendant traveling extremely close to the vehicle in front of it, which drew his attention to the vehicle. As the vehicle passed Chief Naviglia he observed that it did not have a Pennsylvania State Inspection sticker. At that time, Chief Naviglia began to follow Defendant's vehicle. As he began to follow the vehicle, he additionally noticed that the registration sticker on the rear of the vehicle was expired. As he followed the vehicle he also noted that the vehicle crossed the double yellow center line then slightly came back into the lane of travel. He described the distance which Defendant's vehicle crossed the center line as "less than half of the width of the vehicle." At that time there were no other cars coming in the opposite direction. Chief Naviglia subsequently activated his lights and effectuated a traffic stop. As he spoke to Defendant, he noted what he described as a "very pungent odor of cooking grease." He did not describe smelling any other odors coming from Defendant, including an odor of alcohol. However, he indicated that Defendant had a "hard time making eye contact" and he appeared very flushed and that when he did make eye contact, his eyes were pinpointed, very red and almost shut. The Commonwealth offered into evidence a photograph taken at 1:54 a.m. at the Allegheny Valley Hospital showing Defendant's appearance at that time, which was approximately 30 minutes after the traffic stop.
After noting Defendant's appearance, Chief Naviglia stated Defendant's speech appeared very slow and Defendant was combative, referring to Chief Naviglia as a "dirty cop" and placed a call to Chief Naviglia's department in order to get in contact with another officer. Chief Naviglia testified that as a result of his observations of Defendant he requested Defendant to perform certain field sobriety tests. He described Defendant's demeanor as "very slow getting out of the car and very deliberate." He testified that in his experience in dealing with individuals who are impaired by narcotics that their equilibrium, balance and depth perception "are off."
Chief Naviglia described Defendant's performance of the field sobriety tests including the finger-to-nose test and the heal-to-toe test and as a result believed Defendant was under the influence of a drug such that he was incapable of safe driving. Chief Naviglia testified that other officers observed the field sobriety tests and that after the tests Defendant "asked for a breathalyzer test." Chief Naviglia testified that as a result of all
of his observations of Defendant, it was his opinion that Defendant was under the influence of narcotics or a controlled substance to the extent that he was incapable of safe driving.
On cross-examination Chief Naviglia acknowledged that he had previously arrested Defendant after Defendant broke into a house to "get his daughter out of the house" and that Defendant was beaten when he was in the house. Chief Naviglia also acknowledged that there were other charges previously filed against Defendant which he indicated were "withdrawn by the Commonwealth." He testified that although he had a K-9 drug sniffing dog in the car, he did not get the dog out of the patrol car because he did not "have probably cause" and that when he did a Terry frisk of Defendant he did not find any drugs on him. In addition, he agreed that when he initially charged Defendant he charged him with driving under the influence of alcohol. Chief Naviglia further acknowledged that Defendant told him that he was a diabetic and that he had had knee surgery. Chief Naviglia admitted that in the February of 2009 preliminary hearing, he testified that Defendant's vehicle had gone "one tire width over the double line." Regarding Chief Naviglia's observation of Defendant's speech, he acknowledged that Defendant's speech was not slurred, but was instead very slow.
Chief Naviglia testified that during his encounter with Defendant, Defendant repeatedly asked to take a breath or urine test. He also acknowledged that Defendant indicated that he was going to get a urine sample once he was released from custody and that when Defendant was released, Chief Naviglia forgot to give him his driver's license that was sitting on the passenger's seat of the police vehicle and that Defendant ultimately retrieved it through his sister at approximately 7:00 a.m. in the morning. At the conclusion of the testimony, Defendant made a motion for judgment of acquittal which was denied.
Defendant testified that he was part owner of a restaurant and that he worked from 5:00 a.m. the day before, which was Valentine's Day, until 6:30 p.m. He then left and went home in order to sleep. At approximately 12:30 a.m. he was contacted by the bartender of his restaurant who asked him to come to the restaurant to close because she was there by herself. He said that he had no drugs or alcohol, but he did take insulin for his diabetes. Defendant testified that he told Chief Naviglia that he
would not take a blood test, but that he would take a urine test, breathalyzer or hair follicle test and repeatedly asked the Chief to give him one of these tests. He testified that he did not want to take a blood test because of a previous leg infection that he had suffered due to a needle injection. He described himself as a "brittle diabetic" which meant that he takes injections in his abdomen that are done by a nurse with a "blind needle."
Defendant testified that he was able to exit his vehicle without any difficulty and that he understood and performed the field sobriety tests appropriately. Defendant further testified that despite the fact that he had repeatedly requested alternate testing, Chief Naviglia retained his driver's license in an apparent attempt to thwart any additional testing Defendant wanted to have performed immediately after his release. Defendant testified that Chief Naviglia knew that without his photo identification the hospital and/or a testing facility would not perform the testing that he desired.
The Defendant also called his sister, Karen Black, who testified that Defendant had worked all day and that he was not drinking or doing drugs. She further testified that she received a phone call at approximately 2:00 a.m. and Chief Naviglia brought Defendant to her house and that Defendant did not appear to be under the influence, admitting that she was familiar with people who were under the influence of alcohol, but not under the influence of drugs. She testified that she was aware that Defendant was diabetic and wanted to have urine testing done, but could not be performed because he did not have his driver's license. She testified that when Defendant was brought to her home he appeared sleepy and tired and she did not notice any slurred speech. She also testified that after Chief Naviglia dropped him off, Defendant wanted to go to the hospital to have a urine test, but she believed he was unable to take the urine test because he did not have his picture ID.
I. [Was there sufficient evidence to convict Appellant of driving under the influence of a controlled substance pursuant to 75 Pa.C.S. § 3802(d)(2)?]Brief for Appellant at 4.
II. [Whether the police violated Appellant's rights under 75 Pa.C.S. § 1547(i) by not honoring Appellant's request for a chemical test?]
In the first question presented for our review, Appellant challenges the sufficiency of the evidence.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Hunzer, 868 A.2d 498, 505 (Pa. Super. 2005) (quoting Commonwealth v. Distefano, 782 A.2d 574, 582 (Pa. Super. 2001) (citations and quotation marks omitted)).
Appellant is challenging his conviction under 75 Pa.C.S. § 3802(d)(2), which states:
(d) Controlled substances.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:Appellant does not present an argument demonstrating that the Commonwealth failed to prove any particular element of this crime. Instead, Appellant's argument on this issue more closely resembles a weight claim than a sufficiency claim.
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(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.
For instance, he points to the facts that Officer Naviglia found no drugs in Appellant's possession, that Appellant did not smell of alcohol or any drugs, and that although Officer Naviglia testified that Appellant failed the field sobriety tests, Appellant testified that he "believed he did well on the tests." Brief for Appellant at 12. Such arguments, as well as the arguments attacking Officer Naviglia's credibility, are to no avail in a sufficiency claim. Our standard of review does not permit us to re-weigh the evidence or reassess the trial court's determination regarding Officer Naviglia's credibility. Rather, we are to view the facts and all reasonable inferences therefrom in a light most favorable to the Commonwealth as verdict winner.
When we view the facts in accordance with the foregoing standard, we conclude that the evidence is sufficient to sustain the conviction for driving under the influence of a controlled substance. At trial, Officer Naviglia testified that he administered heal-to-toe and finger-to-nose tests in the presence of other officers and that Appellant failed both tests. Officer Naviglia described Appellant's actions as very slow and deliberate, including Appellant's speech. He also described Appellant's eyes as being "very red and almost shut." N.T., 6/7/10, at 16. These observations combined with Officer Naviglia's observation of Appellant's driving too close to a vehicle and crossing over the center line on more than one occasion provide a sufficient basis for the trial court to have found beyond a reasonable doubt that Appellant was incapable of safe driving due to his being under the influence of a controlled substance. Therefore, Appellant's first claim is to no avail.
In the second question presented for our review, Appellant claims his conviction for driving under the influence of a controlled substance should be reversed because his right to request a chemical test under Section 1547 was violated. In pertinent part, Section 1547 states:
§ 1547. Chemical testing to determine amount of alcohol or controlled substance75 Pa.C.S. 1547(i). In this case, it is not disputed that Officer Naviglia requested that Appellant submit to a blood test and that Appellant refused to take the test due to the fact that he is a diabetic and had previously suffered an infection as a result of a needle injection. Nor is it disputed that Appellant in fact requested that a urine or breath test be administered and that Officer Naviglia refused to honor this request. Furthermore, the Commonwealth charged Appellant with a violation of Section 3802 based on his refusal to submit to a blood test. However, at trial, the Commonwealth conceded that this count had been withdrawn and "that the refusal was already argued and heard before Judge Gallo, and that appeal was sustained." N.T., 6/7/10, at 59. Thus, it appears on the record that the Court of Common Pleas has reviewed the propriety of Appellant's refusal to submit to a blood test and determined that Appellant had a valid reason, ostensibly a medical one, for so refusing.
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(i) Request by driver for test.--Any person involved in an accident or placed under arrest for a violation of section 1543(b)(1.1), 3802, or 3808(a)(2) may request a chemical test of his breath, blood or urine. Such requests shall be honored when it is reasonably practicable to do so.
On appeal, the Commonwealth presents no argument to the contrary. Thus, the instant case is distinguishable from the many cases cited by the Commonwealth where the driver, without a valid reason, had requested a different chemical test than the one sought to be administered by the police. See e.g. McGee v. Commonwealth, 803 A.2d 255, 259-60 (Pa. Cmwlth. 2002) (driver requested a blood test rather than a breath test despite admitting to having no medical condition that would prevent him from completing the breath test); Mooney v. Com., Dept. of Transp. Bureau of Driver Licensing, 654 A.2d 47, 50 (Pa. Cmwlth. 1994) (stating that a fear of needles is an insufficient reason to refuse a blood test).
The Commonwealth also argues that Appellant's claim of a violation of his rights under Section 1547 "is irrelevant as Appellant did not proceed to trial on any charge involving a refusal of testing." Commonwealth's Brief at 19. In support of this argument, the Commonwealth directs us to Section 3802(d)(2), under which Appellant was convicted, and points out that this section contains "no language requiring [that] impairment be established through chemical testing." Commonwealth's Brief at 19. We are not convinced by this argument.
Under the rules of evidence, the result of a chemical test would certainly be admissible to determine whether Appellant was driving under the influence of a controlled substance, as a negative test would tend to make it less probable that Appellant was in fact driving under the influence. See Pa.R.E. 401 (stating, "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). Moreover, pursuant to Section 1547, the result of a chemical test is admissible in all prosecutions for a violation of Section 3802.
(c) Test results admissible in evidence.--In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3802 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant's blood, as shown by chemical testing of the person's breath, blood or urine, which75 Pa.C.S. § 1547(c).
tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
Finally, having determined that Appellant had the right to request that a breath or urine test be administered to him, we address the Commonwealth's argument that under Section 1547(i), the police are only bound to honor such requests when it is reasonably practicable to do so, and in this case, "a breathalyzer or urine test was not reasonably practicable." Commonwealth's Brief at 21. This argument fails for two reasons. First, the statute states that the request shall be honored when it is reasonably practicable to do so, not if it is reasonably practicable to do so. Thus, assuming as the Commonwealth argues that it was not reasonably practicable for Officer Naviglia to honor Appellant's request at the time he made it, Officer Naviglia should have honored at some time in the future when it was reasonably practicable. As stated above, it is not disputed that Officer Naviglia never honored the request.
Second, at the time Appellant made the request, he was in a hospital. This Court can think of no more a practical place for a urine test than a hospital. When questioned as to why he didn't subject Appellant to a urine test at the hospital, Officer Naviglia responded, "I'm not touching somebody's urine." N.T., 6/7/10, at 54. But of course, Officer Naviglia would not have been subjected to "touching" Appellant's urine as he so feared, and he simply could have requested that the hospital, which was going to perform the blood test, perform a urine test instead.
Under these circumstances, we conclude that Appellant's right to procure potentially exculpatory evidence was irreparably violated. This violation impinged on Appellant's substantive due process rights, and therefore, his conviction for driving under the influence of a controlled substance must be reversed.
Judgment of sentence reversed. Jurisdiction relinquished.
Judge Platt files a dissenting opinion.
COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
WILLIAM BARKER, A/K/A WILLIAM HOWARD BARKER, JR., Appellant
No. 1153 WDA 2010
Appeal from the Judgment of Sentence June 7, 2010
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0006360-2009
BEFORE: BENDER, DONOHUE, and PLATT, JJ. DISSENTING OPINION BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
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I agree with the learned majority's conclusion that, under the applicable standard of review, there was sufficient evidence in this case for the fact finder, the trial judge, to find Appellant guilty of driving under the influence of a controlled substance to a degree that made him incapable of safe driving.
I respectfully dissent, however, from the majority's reversal of this conviction based on an alleged violation of 75 Pa.C.S.A. § 1547(i) because the charge that Appellant had violated 75 Pa.C.S.A. § 3802 by refusing to submit to a blood test was withdrawn by the Commonwealth before trial.
A review of the record indicates that Appellant was charged with two counts of driving under the influence of alcohol or controlled substances (DUI), 75 Pa.C.S.A. § 3802(a)(1) ("An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle."). Count 1 alleged that he "refused testing of blood or breath, in violation of . . . 75 Pa.C.S. § 3802(a)(1) and § 3804(c)[.]"( See Information, 2/15/09, at 1). Count 2 alleged only a violation of Section 3802(a)(1). ( Id. ).At trial, the Commonwealth informed the court that Count 1, which alleged Appellant's refusal to submit to testing, had been withdrawn. ( See N.T. Non-Jury Trial, 6/07/10, at 4). Accordingly, the Commonwealth only proceeded on DUI under Section 3802(a)(1), as charged in Count 2.
The learned majority concedes that the evidence is sufficient to sustain the conviction for driving under the influence of a controlled substance. ( See Majority Opinion, at 7). Furthermore, a chemical test is not required to support a conviction under Section 3802(a)(1). See Commonwealth v. McCurdy , 735 A.2d 681, 685 n.3 (Pa. 1999). Therefore, Appellant's conviction should not be reversed for failure to administer a chemical test, when there is sufficient evidence to support the conviction without it.
Moreover, I would note that our Commonwealth Court has "consistently held that Section 1547 does not afford a driver a choice among the three tests provided under that section; rather, it is the police officer who has the option to choose the type of chemical test to administer." McGee v. DOT, 803 A.2d 255, 259 (Pa. Cmwlth. 2002).
For the foregoing reasons, I would affirm on the basis that there is sufficient evidence to support the conviction for DUI under Section 3802(a)(1). Accordingly, I respectfully dissent.