Com. v. Leib

• Decision Date: 11 April 1991
• Docket Number: No. 166,166
• Parties: COMMONWEALTH of Pennsylvania v. Gregory S. LEIB, Appellant. Harrisburg 1990.
• Court: Pennsylvania Superior Court

Page 922

588 A.2d 922

403 Pa.Super. 223

COMMONWEALTH of Pennsylvania v. Gregory S. LEIB, Appellant.

No. 166 Harrisburg 1990.

Superior Court of Pennsylvania.

Argued Oct. 3, 1990.

Filed Feb. 14, 1991.

Reargument Denied April 11, 1991.

[403 Pa.Super. 227] John G. Bergdoll, III, York, for appellant.

Gerald A. Lord, Asst. Dist. Atty., York, for Com., appellee.

Before OLSZEWSKI, BECK and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from a judgment of sentence for driving while under the influence of alcohol. Appellant raises numerous issues for our review. For the reasons that follow, we affirm.

Appellant was arrested in York County on June 13, 1987 and charged with driving while under the influence of alcohol to a degree which renders a person incapable of safe driving, ¹ and driving while the amount of alcohol by weight in the blood is 0.10% or greater. ² The facts that led to his arrest are as follows. At approximately 4:15 that morning, officer Shane Becker of the Spring Grove police received a report of a vehicle stopped in the middle of Church Road, less than a mile from the police station. See N.T., October 23, 1989, at 10. When he responded to that report, Officer Becker observed appellant's vehicle parked in the middle of the road. Officer Becker approached the vehicle, and found appellant, unconscious and slumped over the steering wheel. Id. at 14-15. After approximately three minutes of shaking and shouting, Officer Becker managed to awaken appellant, who "smelled of alcohol," id. at 15, and whose eyes were "glassy, bloodshot, [and] watery." Id. at 18. Officer Becker then administered a field sobriety test, which appellant failed. Id. at 19-20. Officer Becker placed appellant under arrest, and took him to the hospital, where appellant consented to a blood test. Id. at 21. Appellant's blood alcohol content (BAC) was .263 ³ at the time the test was administered, approximately 45 minutes after appellant's arrest. See N.T., June 2, 1989, at 15.

On October 20, 1987, appellant filed an omnibus pretrial motion to suppress evidence and quash the complaint against him. After additional briefing, hearing and argument on June 2, 1989, that motion was denied by order dated August 10, 1989. A jury trial was held on October 23, 1989, and appellant was convicted on both counts.

Post-trial motions were timely filed and were denied by order dated November 16, 1989. On February 12, 1990, appellant was sentenced to 30 days-to-twelve months incarceration. This timely appeal followed.

Initially, we note our disapproval of the brief appellant's counsel, John G. Bergdoll, Esq., has filed. The Statement of Questions covers two pages and thirty lines, thereby violating Pa.R.A.P. 2116(a). In addition, although he purports to raise but seven issues in the statement, Mr. Bergdoll in fact has burdened this court with more than fifteen separate arguments. Some of the arguments verge on boilerplate, are unintelligible, or raise points that Mr. Bergdoll recognizes have been rejected by Courts in this Commonwealth. This indiscriminate approach brings to mind the remarks by the Honorable Ruggerio J. Aldisert of the United States Court of Appeals for the Third Circuit, who reflected:

"With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness."

United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982) (citation omitted); see also Commonwealth v. Sirbaugh, 347 Pa.Super. 154, 160-61, 500 A.2d 453, 456 (1985). In the interest of judicial economy, we will not address at length all of the many arguments advanced by Mr. Bergdoll; however, despite our disapproval of Mr. Bergdoll's approach, we have carefully considered each of the arguments, and we determine that appellant is not entitled to relief. ⁴

I. SUFFICIENCY AND RULE 1100 CLAIMS.

Appellant first argues that the evidence is insufficient to support his conviction. Specifically, appellant argues that because there is no evidence as to when he operated the vehicle and what condition he was in at any time he operated it, see Appellant's Brief at 9, the evidence is insufficient to support his conviction. We disagree.

Our standard of review of sufficiency claims is well-settled:

[w]here a defendant challenges his conviction on appeal the test of sufficiency of evidence is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984); see also Commonwealth v. Quarles, 361 Pa.Super. 272, 280-81, 522 A.2d 579, 583 (1987). Appellant was convicted of violating 75 Pa.C.S.A. § 3731(a)(1) and (4), which provide:

§ 3731. Driving under influence of alcohol or controlled substance

(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....

* * * * * * (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

Id. We explained the significance of the broader "in control" language in Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987):

[T]he concept of "actual physical control" has recently been embodied in the Pennsylvania Suggested Standard jury instructions for driving under the influence of alcohol.

[ (2) The crime of driving under the influence can be committed not only by a person who drives but also by one who "operates" or is "in actual physical control" of the movement of a vehicle. A person does not drive unless he actually has the vehicle in motion, however, a person may operate or be in actual physical control of the movement of a standing vehicle. These terms are more comprehensive than the term drive. (They cover certain situations where a person under the influence is a threat to public safety even though he is not driving at the time.) Thus a person operates a vehicle if he is in actual physical control of either the machinery of the motor vehicle or the movement of the vehicle itself.]

Id. at 114-15, 523 A.2d at 801-802 (quoting Pa.SSJI (Crim.) 173731). Finally, we note that, generally speaking, a finder of fact is free to believe all, part or none of a witness's testimony. Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-20, 506 A.2d 415, 419 (1986).

Here, appellant testified that he had been driving home when his vehicle broke down, and that he had consumed the beer that raised his BAC to .263 while awaiting aid. See N.T., October 23, 1989 at 47-61. However, the testimony at trial established the following uncontroverted facts. There were several open beer containers in appellant's vehicle, the keys were in the ignition, and appellant was found slumped over the steering wheel unconscious. Furthermore, appellant smelled of alcohol, failed a sobriety test administered at the scene, and had a BAC of .263% forty five minutes after he was found. These facts clearly were sufficient to support appellant's conviction. In his own testimony, appellant admitted both that he had been driving and drinking on the day in question. The jury's verdict simply reflects its disbelief of appellant's claim that he consumed the alcohol after his vehicle broke down, and, of course, the jury was free to disbelieve the self-serving aspects of this testimony. See Verdekal, supra. Thus, we are satisfied that, viewed in the light most favorable to the Commonwealth, a sufficient basis existed for the jury to have reasonably found that appellant was in control of his vehicle while under the influence of alcohol as prohibited by 75 Pa.C.S.A. § 3731(a)(1) and (4). See generally, Commonwealth v. Crum, supra (evidence sufficient to uphold conviction of appellant charged under § 3731(a)(1) based on police determination that he was intoxicated after discovering him unconscious at the wheel of his vehicle stopped at the side of the road); Commonwealth v. Matsinger, 288 Pa.Super. 271, 431 A.2d 1043 (1981) (evidence that defendant was found asleep behind wheel of vehicle with motor running and in gear sufficient to support inference that defendant had control of vehicle).

Appellant's second contention is that the trial court erred in allowing him to go to trial because the Commonwealth failed to timely file for an extension of time as required by Rule 1100. Specifically, appellant argues that because the Commonwealth failed to file an application for extension of time before the end of the January 1989 term, as directed by the trial court, the case should have been dismissed.

Our standard of review of trial court decisions regarding whether the Commonwealth has met the necessary burden to justify granting an extension of time is well-settled.

....[W]hen this court is reviewing the trial court's ruling "that the Commonwealth has met its burden, we shall consider only the evidence presented by the Commonwealth and so much evidence as presented by the defense as, fairly read Commonwealth v. Newman, 382 Pa.Super. 220, 229, 555 A.2d 151, 155 (1989) (citations omitted).

in the context of the record as a whole, remains uncontradicted."

Rule 1100 provides, in relevant part, that:

Rule 1100 Prompt Trial

... (a)(2) Trial in a court case...