Com. v. Blair

• Decision Date: 14 May 1990
• Parties: COMMONWEALTH of Pennsylvania v. Denise BLAIR, Appellant.
• Court: Pennsylvania Superior Court

Page 593

575 A.2d 593

394 Pa.Super. 207

COMMONWEALTH of Pennsylvania v. Denise BLAIR, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 26, 1990.

Filed May 14, 1990.

Michael J. Rudinski, Williamsport, for appellant.

Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellee.

Before ROWLEY, OLSZEWSKI and TAMILIA, JJ.

OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. After a jury trial, appellant, Denise Blair, was convicted of driving under the influence of alcohol, resisting arrest, three counts of disorderly conduct, and accident involving death or personal injury (failure to stop at the scene of an accident). Appellant was also found guilty of four summary offenses of harassment. Appellant was sentenced to make restitution, pay numerous fines, and serve an aggregate of sentences at a state correctional institution of not less than six months to not more than two and one-half years. Appellant's post-trial motions and motion to modify sentence were denied. She calls upon us to determine the following issues: (1) whether there was sufficient evidence for a jury to find her guilty beyond a reasonable doubt of driving under the influence of alcohol; (2) whether the suppression court erred in not suppressing all evidence obtained after police officers entered her residence; (3) whether the court erred in allowing the Commonwealth to establish the basis for the police officer's entry into Ms. Blair's residence by hearsay evidence; (4) whether the court erred in not suppressing a video tape recorded while she was in custody; (5) whether a mistrial should have been granted because, during his testimony, a police officer referred to Ms. Blair's silence after her arrest; and (6) whether her sentence was too harsh.

At approximately 2038 hours on June 17, 1988, appellant drove a Bayerische Motoren Werke automobile (BMW) into the rear of another automobile. Occupants of both automobiles were injured and both vehicles were damaged. Witnesses observed Ms. Blair at the scene in her BMW and described her as looking dazed and not responding to their statements. Appellant drove away without waiting for the police to arrive. A witness obtained the BMW's plate number and informed the police.

The BMW was registered to a Steven Blair at 228 Southern Avenue in South Williamsport, Pennsylvania. Officer Kuhns and other officers arrived at that address and noticed the BMW at the rear of the property. It was damaged. Officer Kuhns was admitted to the residence by a neighbor. Almost immediately, he observed appellant. She was bleeding from the lip and chin, there was a strong to moderate odor of alcohol emanating from her, and her eyes were glassy. Officer Kuhns asked her several times whether she needed medical assistance but she did not respond. He informed her of the implied consent law.

Officer Kuhns had no doubt that appellant was the driver of the BMW. Sergeant Jett arrived and Ms. Blair was handcuffed. She had difficulty standing and both officers had to escort her to a patrol car. On the way to the patrol car, appellant became violent. She kicked, fought, and resisted all efforts of the officers. She called Sergeant Jett a "nigger," used obscenities and made sexual comments to the officers. Upon being placed in the patrol car, she began kicking the windows. The police officers left after making sure that Ms. Blair's children were cared for.

Sergeant Jett drove appellant to the Williamsport Hospital, where she managed to open the car door, tumble out, and run part way across the parking lot before he was able to apprehend and restrain her.

Inside the hospital, appellant continued her diatribe of obscenities and racial remarks. She refused a blood alcohol test and spat on officers, hospital personnel and a police chaplain who were attempting to help her.

After leaving the hospital, the officers had to resort to force to place appellant in the patrol car. While fighting the officers, Ms. Blair kicked Officer Henry in the side and in the face. Appellant's ankles were handcuffed and she was placed in the cruiser.

Approximately one block away from the hospital, appellant's spitting on the officer and the chaplain in the front seat became so persistent that they had to stop the cruiser and handcuff her arms and legs to the cage so that she was facing toward the rear and could not spit on them.

Outside City Hall, appellant calmed down; however, once inside she resumed her litany of obscenities and sexual and racial comments. Once again, her legs and wrists were shackled and she was placed in a holding cell.

Ms. Blair's uncooperativeness made it impossible for Officer Kuhns to administer field sobriety tests. Ms. Blair was informed that her conduct in the holding cell was being recorded on videotape. Ms. Blair's conduct was recorded for one hour. Approximately 45 minutes, into the recording she requested an attorney. The jury viewed the tape to the point prior to her request for an attorney.

ISSUE I.

Appellant argues that there was insufficient evidence for a jury to find beyond a reasonable doubt that she was driving while under the influence of alcohol. We disagree.

In evaluating a claim of sufficiency of the evidence to sustain a conviction, the evidence must be viewed in the light most favorable to the verdict winner, Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, we must determine whether the jury reasonably could have found that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 141, 555 A.2d 818, 823 (1989).

Driving under the influence is defined as follows:

(a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:

(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

75 Pa.C.S.A. § 3731(a)(1).

We have reviewed the testimony presented at trial and are satisfied that sufficient evidence was presented from which a jury could have found beyond a reasonable doubt that appellant was driving under the influence of alcohol to a degree which rendered her incapable of safe driving.

ISSUE II.

Appellant argues that all evidence obtained subsequent to the police officers' entry into her residence should have been suppressed. We disagree.

Prior to entering Ms. Blair's residence, the police knew that a woman had been driving an automobile which was involved in a hit and run accident. A registration check revealed that the automobile was owned by Steven Blair and was registered to an address at 228 Southern Avenue in South Williamsport. When police arrived at the Southern Avenue address, they saw the BMW automobile which had been involved in the accident. The headlights and grill were smashed, the radiator had been leaking, and the engine was still hot and steaming. An officer knocked on the door and inquired of a woman whether she was Mrs. Blair. The woman indicated she was not, so the officer inquired whether the driver of the automobile was there and whether he could talk with her. The woman stated that she was there, but "she isn't doing too good." (N.T., 6/24/88 at 25.) ¹ The woman at the door then invited the police officer into the residence where he observed Ms. Blair.

The issue to be decided is whether the evidence ² seized after the police entered 228 Southern Avenue should be suppressed because the individual authorizing the entry of the police did not have actual authority to consent to their entry. Stated another way, if a police officer is reasonably mistaken regarding the actual authority of a third party to consent to his entry into a building, should the evidence obtained as a result of that entry be suppressed. Our search of the authorities has yielded no Pennsylvania cases which are dispositive of this issue.

The suppression court upheld the search under two theories. We decline to follow the reasoning of the suppression court since there is only slight evidence ³ that the police entered Blair's residence to aid an individual in distress, as required under Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173 (1985). ⁴ Also, U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), is not applicable since the neighbor who provided the third-party consent to the search did not have "common authority" over Blair's residence.

The Fourth Amendment of the Constitution of the United States embodies the concern of our society for the right of each individual to be let alone. Schneckloth v. Bustamonte, 412 U.S. 218, 236, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854, 872 (1973). The Fourth Amendment ensures that certain areas, particularly a home, are not subject to invasion at the caprice of investigating agencies. A citizen must be secure in knowing that his property and possessions are safe from search and seizure except in those situations where police have sufficient knowledge, probable cause, to believe that acts or things prohibited by our laws have or are occurring or where evidence of acts or things prohibited by our laws are located.

A search conducted without a warrant issued upon probable cause is per se unreasonable under the Fourth and Fourteenth Amendments, subject only to a few specifically established and well-delineated exceptions. Id. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 858. One exception is a search that is conducted pursuant to consent. Id. Both federal and state constitutions allow for a third-party consent search exception to the warrant requirement. Commonwealth v. Kean, 382 Pa.Super. 587, 602, 556 A.2d 374, 387 (1989). In the case before the bar, the neighbor (the third party) did not have actual authority to consent to the police officers entering Blair's residence.

Third-party consent cases fall into four broad categories. Previous to this decision, cases in our Commonwealth concerned situations where: (1) the consenting par...