Com. v. Litzenberger

• Decision Date: 09 November 1984
• Parties: COMMONWEALTH of Pennsylvania v. Samuel A. LITZENBERGER, Appellant.
• Court: Pennsylvania Superior Court

Page 968

482 A.2d 968

333 Pa.Super. 471

COMMONWEALTH of Pennsylvania v. Samuel A. LITZENBERGER, Appellant.

Superior Court of Pennsylvania.

Argued March 13, 1984.

Filed Sept. 7, 1984.

Reargument Denied Nov. 9, 1984.

Ralph W. Litzenberger, Easton, for appellant.

William Merz, Asst. Dist. Atty., Doylestown, for Commonwealth, appellee.

Before CAVANAUGH, WIEAND and CIRILLO, JJ.

WIEAND, Judge:

Samuel A. Litzenberger, a practicing attorney, was tried non-jury and was found guilty on a charge of driving while under the influence of alcohol which had been brought after his involvement in a vehicular accident in Bucks County. On direct appeal from the judgment of sentence, Litzenberger contends: (1) the evidence was insufficient to sustain the conviction; (2) the trial court erred when it refused to suppress the results of a breathalyzer test showing that Litzenberger's blood alcohol had been .22 percent; and (3) trial counsel employed by Litzenberger was constitutionally ineffective. ¹ We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

When considering the sufficiency of the evidence, we are required to view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, which has won the verdict. The test is whether the evidence, when so viewed, is sufficient to permit a finding of guilt beyond a reasonable doubt. Commonwealth v. Stoyko, --- Pa. ---, ---, 475 A.2d 714, 718 (1984); Commonwealth v. Hamm, --- Pa.Super. ---, ---, 473 A.2d 128, 131 (1984). In making this determination, we consider all the evidence adduced at trial, whether the court's evidentiary rulings thereon were correct or not. Commonwealth v. Gray, 322 Pa.Super. 37, ---, 469 A.2d 169, 170 (1983); Commonwealth v. Fields, 317 Pa.Super. 387, 395, 464 A.2d 375, 379 (1983). Conflicts in the evidence must be resolved by the trier of the facts, in this case the trial judge, who alone must decide the credibility and weight of the evidence. See: Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983); Commonwealth v. Hamm, supra at ---, 473 A.2d at 131; Commonwealth v. Taylor, --- Pa.Super. ---, ---, 471 A.2d 1228, 1229-1230 (1984).

On the evening of January 3, 1977, at or about 9:30 p.m., appellant was operating a vehicle at a high rate of speed on Route 212 in Pleasant Valley when it collided with a vehicle emerging from a private driveway and being operated by Sharon LaBarr. Chief Alex Chasar and Officer Robert Kramer of the Springfield Township Police arrived shortly thereafter. Chasar placed flares on the roadway, and Kramer interviewed the two drivers. Kramer observed an odor of alcohol emanating from appellant, as well as his disorientation and slurred speech. When asked for an operator's license and owner's card, appellant experienced difficulty in producing them. During the time that Kramer was writing his report, he observed appellant walking around in the roadway and admonished him on several occasions to stay out of the road. When appellant entered the vehicle of his wife, who had arrived at the scene in response to appellant's telephone call, and gave evidence of an intent to leave the accident scene, Chasar instructed Kramer to have appellant sit in the police vehicle. Kramer then read to appellant his rights under Miranda and told him that he was being placed under arrest for driving while under the influence. With Litzenberger in his police vehicle, Kramer set out for the State Police Barracks in Dublin for purposes of administering a sobriety test to appellant. While en route, Kramer was advised by radio that the equipment at Dublin was inoperative. Therefore, he took appellant a distance of fifteen miles to the barracks of the State Police located at Bethlehem. There a breathalyzer test was administered and disclosed a blood alcohol content of .22 percent.

This evidence was clearly sufficient to support appellant's conviction. He contends, however, that the breathalyzer test was unlawfully administered (a) because his arrest had been without probable cause; and (b) because the test was administered in a county different than that in which the alleged offense occurred. The suppression court found that appellant had been arrested by Officer Kramer after Kramer had probable cause to believe that appellant had been under the influence of alcohol at the time the accident occurred. In reviewing the findings of the suppression court, we will not disturb that court's findings if they are supported by the record; in making such a determination, we look only to the prosecution's evidence and so much of the evidence of the defense as, looking at the record as a whole, remains uncontradicted. Commonwealth v. Frederick, --- Pa.Super. ---, ---, 475 A.2d 754, 758 (1984). The suppression court's order is fully supported by the record in this case. Although the offense which appellant was believed to have committed was only a misdemeanor, Kramer could, nevertheless, effect a lawful arrest without warrant under the Motor Vehicle Code then in effect. See: Act of April 29, 1959, P.L. 58, § 1204, 75 P.S. § 1204 (repealed and replaced by 75 Pa.C.S. § 6304).

Pursuant to the provisions of Section 624.1 of the Motor Vehicle Code of 1959, 75 P.S. § 624.1, as amended, ² an officer effecting a legal arrest for driving while under the influence of alcohol was authorized to transport the person arrested to an appropriate facility for a sobriety test. See: Commonwealth v. Quarles, 229 Pa.Super. 363, 324 A.2d 452 (1974). The statute imposed no geographical limitation. We decline to interpret the section as requiring that the testing facility be situated in the same county as that in which the alleged offense occurred. Where, as here, the equipment at the Dublin barracks was inoperative, the facilities at the Bethlehem Barracks in Lehigh County were appropriately located. These facilities were located a mere fifteen miles from the scene of the accident. They were not rendered inappropriate because they were available in an adjacent county. Compare: Commonwealth v. Quarles, supra (a suspect not under legal arrest may not be transported 22 miles for a sobriety test without his consent).

After post-trial motions had been denied and sentence had been imposed, an appeal was filed in this Court. Thereafter, appellant discharged his trial counsel, and Ralph Litzenberger, Esquire, entered an appearance on appellant's behalf. Appellant and his new counsel were then successful in obtaining an order remanding the case to provide appellant with an opportunity to show at an evidentiary hearing that trial counsel had been ineffective. Following an evidentiary hearing, the court found that trial counsel had not been constitutionally ineffective and again refused appellant's request for a new trial. Although appellant continues to assert in this Court that trial counsel was ineffective, he has inexplicably failed to provide this Court with a transcript of the evidentiary hearing at which relevant testimony was taken. Such a transcript, we are advised, is unavailable and cannot be provided.

On May 14, 1984, the Supreme Court of the United States, in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), gave us for the first time a definition of that defective assistance which would render counsel ineffective under the federal constitution. The Court said:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

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"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 [102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783] (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' See Michel v. New York, [350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955) ] [sic]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

"The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by...