Com. v. Johnson

• Decision Date: 29 July 1988
• Citation: 545 A.2d 349,376 Pa.Super. 121
• Parties: COMMONWEALTH of Pennsylvania v. Bruce JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 349

545 A.2d 349

376 Pa.Super. 121

COMMONWEALTH of Pennsylvania v. Bruce JOHNSON, Appellant.

Superior Court of Pennsylvania.

Submitted March 21, 1988.

Filed July 29, 1988.

Bruce A. Franzel, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, MONTGOMERY and HESTER, JJ.

WIEAND, Judge:

Bruce Johnson was tried nonjury and was found guilty of driving while under the influence of alcohol, homicide by vehicle while driving under the influence of alcohol, simple assault, and recklessly endangering another person. ¹ Timely filed post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of not less than three (3) years nor more than six (6) years for homicide by vehicle, to run concurrently with a term of imprisonment of not less than three (3) months nor more than six (6) months, plus a fine of $300, for driving while under the influence of alcohol.

On direct appeal from the judgment of sentence, Johnson argues that the evidence was insufficient to sustain the trial court's finding. The evidence was insufficient, he argues, because (1) the Commonwealth failed to establish that he was under the influence of alcohol, (2) the evidence failed to establish that he was incapable of safe driving or that his ingestion of alcohol was causally connected with the accident, and (3) the Commonwealth failed to show that he had been convicted of driving while under the influence of alcohol before he was tried and convicted of homicide by vehicle while under the influence of alcohol. He also contends that driving while under the influence of alcohol merged with the conviction for homicide by vehicle while under the influence of alcohol for sentencing purposes and that separate sentences imposed by the trial court, therefore, were illegal. We find no merit in these arguments and affirm the judgment of sentence.

On appeal, our standard for evaluating a challenge to the sufficiency of the evidence involves several steps:

First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient.

Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985), quoting Commonwealth v. Herman, 271 Pa.Super. 145, 148-149, 412 A.2d 617, 619 (1979). The evidence must be sufficient to insure that the verdict is not based on guess, conjecture or surmise. However, the weight to be given the evidence and issues of witness credibility are for the trier of fact, who is free to believe all, part, or none of the evidence presented. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986); Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 539 (1979).

The offense of driving while under the influence of alcohol is defined as follows:

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. § 3731(a)(1).

The offense of homicide by vehicle while under the influence of alcohol is defined as follows:

Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

75 Pa.C.S. § 3735(a).

The evidence showed that on February 19, 1985, at approximately 3:50 p.m., appellant, an employee of the Philadelphia Water Department, was driving a white truck west on Church Street in Philadelphia. When he approached the intersection of Church Street and Torresdale Avenue, he went through a red light and struck a smaller, red truck being driven by Kenneth Larry Walker. Appellant's truck continued to move after the impact. It mounted the curb, struck a pedestrian who had been walking on the sidewalk, and crushed her against the wall of a building. The pedestrian died of injuries received in the accident. Appellant's speed as he entered the intersection was estimated by eyewitnesses to be forty or forty-five miles per hour.

Following the accident, appellant was observed by police officers who had been summoned to the accident scene. Officer Lawrence Clifford testified that appellant had been staggering, that his speech had been "slow and slurring," and that he had smelled of alcohol. Officer John Quigley and Sgt. Theodore Boone testified that appellant had been staggering and wobbly, that his eyes were bloodshot and watery, and that there was alcohol on appellant's breath. Quigley also said that appellant's speech was thick-tongued. Appellant was placed under arrest at the scene and was then transported to a hospital for treatment of injuries. An examination of appellant's truck disclosed eleven empty pint bottles of Thunderbird, one empty white wine bottle, five empty vodka bottles, one empty malt liquor bottle, an empty beer can, and a bottle of Wild Irish Rose wine, one-fourth of which had been consumed.

A sample of appellant's blood, taken at 4:43 p.m. (approximately fifty-three minutes after the accident), disclosed a blood alcohol level of .15%. A breathalyzer test, performed at 7:30 p.m. (approximately four hours after the accident), resulted in a blood alcohol reading of .06%. At trial, Guy V. Purnell, Chief Toxicologist and Director of Laboratory, Office of the Medical Director, was called by the Commonwealth and testified to average alcohol absorption and metabolic rates. He conceded that he could not state with medical certainty what appellant's blood alcohol level was fifty-three minutes before removal of the blood sample.

Appellant's argument that the evidence was insufficient to show that he was under the influence of alcohol is based upon the fact that the investigating police officers were not asked and did not testify that, in their opinions, he was under the influence of alcohol. Nevertheless, they did testify that appellant smelled of alcohol, that his speech was slurred, that his eyes were bloodshot and watery, and that his motor coordination appeared to be impaired. Appellant counters that these symptoms were equally consistent with the injuries which he had received in the accident. In addition to this evidence, however, the surrounding circumstances must be considered. These include the fact that he had entered the intersection, at a high rate of speed, in violation of a traffic light which had turned red before his arrival at the intersection. There were also blood and breathalyzer test results which could be considered. The blood sample, which had been withdrawn only fifty-three minutes after the accident, revealed a blood alcohol content of .15%. From this fact alone an inference could be drawn that appellant was under the influence of alcohol at the time of the accident. In Commonwealth v. Gamber, 352 Pa.Super. 36, 506 A.2d 1324 (1986), "evidence was introduced that appellant had a 0.14% blood alcohol level forty-seven minutes after he was initially observed." Id. at 45, 506 A.2d at 1329. This was sufficient, the Court held, to sustain a finding of guilt. See also: Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980). Cf. Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986); Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), appeal denied, 517 Pa. 594, 535 A.2d 83 (1987).

Appellant directs our attention to the statement made by the trial court that it would not consider the 0.15% blood alcohol reading because the Commonwealth's toxicologist could not state with medical certainty the level of appellant's blood alcohol at the time of the accident. In Commonwealth v. Boyd, 373 Pa.Super. 298, 541 A.2d 21 (1988), this Court held that "the Commonwealth is not required to offer evidence relating a blood alcohol test back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result would not render the test result insufficient to convict a defendant of [driving under the influence of alcohol]." Id. at ----, 541 A.2d at 22. See also: Commonwealth v. Slingerland, supra; Commonwealth v. Speights, supra. The record in this case discloses unequivocally that the result of the blood test was competent evidence and was received by the trial court. The issue before this reviewing court is merely whether the record contains sufficient evidence to support the trial court's finding of guilt.

After a careful review of the evidence received by the trial court, we conclude that the totality of the evidence was sufficient to support the trial court's finding that appellant was under the influence of alcohol at the time of the accident. See: Commonwealth v. Gamber, supra; Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982) (evidence of defendant's erratic driving, strong odor of alcohol on defendant's breath, and seven empty beer bottles in defendant's vehicle sufficient to sustain conviction); Commonwealth v. Arizini, supra (evidence that defendant lost control of vehicle, had odor of alcohol on breath and beer bottles in car, in addition to...