Com. v. McCurdy

• Citation: 558 Pa. 65,735 A.2d 681
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Shane Farron McCURDY, Appellant.
• Decision Date: 03 August 1999
• Court: United States State Supreme Court of Pennsylvania

558 Pa. 65

735 A.2d 681

COMMONWEALTH of Pennsylvania, Appellee, v. Shane Farron McCURDY, Appellant.

Supreme Court of Pennsylvania.

Argued September 17, 1998.

Decided August 3, 1999.

Thomas R. Ceraso, for Shane Farron McCurdy.

Robert S. Bell, Indiana, for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAM and SAYLOR, JJ.

OPINION

SAYLOR, Justice.

We allowed appeal to consider whether Appellant's convictions for driving under the influence pursuant to Section 3731(a)(1) of the Vehicle Code and homicide by vehicle while driving under the influence are undermined by the constitutional infirmity of Section 3731(a)(5). Shortly after midnight on May 20, 1995, Appellant, Shane McCurdy, was operating a 1978 Cadillac on Route 598 in Center Township, Indiana County. Harry Garcia and Theron Smith were passengers. As McCurdy was attempting to negotiate a curve in the road, he lost control of his vehicle, causing it to leave the roadway and collide with a tree. Smith died from the resulting trauma.

When Trooper Allen Evans of the Pennsylvania State Police arrived at the accident scene, he observed that McCurdy exhibited signs of intoxication; in particular, he had a strong odor of alcohol about him, was swaying, had difficulty walking, and appeared somewhat dazed. McCurdy admitted to Trooper Evans that he was the operator of the vehicle, but because of McCurdy's injuries, no field sobriety tests were administered. McCurdy was taken to the Indiana Hospital for treatment, and, at 1:55 a.m., hospital personnel withdrew blood in the course of treating his injuries. A test of McCurdy's blood disclosed a blood alcohol level of .233 percent.¹

Later that morning, Trooper Evans arrived at the hospital to interview McCurdy. During the interview, McCurdy related to Trooper Evans that he had consumed four servings of beer prior to the accident and that he had lost control of the vehicle while attempting to negotiate a curve. As Trooper Evans was unaware that blood had been withdrawn from McCurdy, he asked him to submit to a blood test, which McCurdy refused.

The police reconstruction of the accident revealed that McCurdy was operating his vehicle at a speed of at least 60 miles an hour in a zone in which the speed limit was 55 miles per hour, and that he failed to negotiate the gradual turn in the roadway. An examination of McCurdy's vehicle eliminated any mechanical cause for the accident.

Based upon the foregoing, McCurdy was arrested and charged with: driving under the influence pursuant to 75 Pa.C.S. § 3731(a)(1), (4), and (5);² homicide by vehicle while driving under the influence, 75 Pa.C.S. § 3735; homicide by vehicle, 75 Pa.C.S. § 3732; and involuntary manslaughter, 18 Pa.C.S. § 2504, together with a number of summary offenses. McCurdy proceeded to a jury trial and was found guilty of all offenses, with the exception of two summary offenses. Although the jury rejected Section 3731(a)(4) as a basis for the driving under the influence conviction, it specifically accepted subsections (a)(1) and (a)(5) as supportive of the conviction. Thereafter, McCurdy was sentenced to a term of incarceration of three and one-half to seven years.

On appeal, the Superior Court treated McCurdy's conviction for driving under the influence as if it were, in fact, two convictions, one pursuant to Section 3731(a)(1) and the other pursuant to subsection (a)(5). Based upon the decision in Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996), in which this Court declared that subsection (a)(5) was void for vagueness and overbreadth, the Superior Court vacated what it termed to be the (a)(5) conviction. The Superior Court affirmed the judgment of sentence for McCurdy's other convictions.

McCurdy claims that because his conviction for driving under the influence under Section 3731(a)(5) was reversed, his convictions for driving under the influence under Section 3731(a)(1) and homicide by vehicle while driving under the influence must also be reversed. Specifically, McCurdy asserts that the trial court improperly instructed the jury that evidence of his blood alcohol level could be considered in evaluating the Commonwealth's proof pursuant to Section 3731(a)(1), when such evidence was only admissible as proof under Section 3731(a)(5). McCurdy bases this argument, in part, upon the assumption that the Commonwealth's failure to offer evidence relating his blood alcohol level to the time of the accident precludes the use of such evidence in establishing the offense of driving under the influence pursuant to subsection (a)(1). Furthermore, McCurdy maintains that it is unclear whether he would have been convicted of homicide by vehicle while driving under the influence in the absence of the charge under Section 3731(a)(5).

With respect to the admission of McCurdy's blood alcohol level as evidence of the violation of Section 3731(a)(1), the trial court instructed the jury as follows:

Now, there was evidence that a sample of the defendant's blood was taken and tested and showed that his blood alcohol level was .233 percent. Ask yourselves, is this evidence credible? Are the test results an accurate measure of the level of alcohol in the defendant's bloodstream? Bear in mind that it is the defendant's blood alcohol level at the time that he was driving, operating or in control that is directly relevant under the first two charges of driving under the influence.

If there was a delay between the time the defendant was driving, operating or in control and the time when the sample was taken, then ask yourselves, did the defendant's blood alcohol level change in the interim? How much higher or lower was his blood alcohol level at the time he was driving, operating, or in control? Remember, you cannot find the defendant guilty of the blood alcohol charge unless you determine beyond a reasonable doubt that his blood alcohol level was 0.10 percent or greater and that applies to the second and third counts that I just defined for you.

Also keep in mind, you may be able to find the defendant guilty of the incapable of safe driving charge . . . regardless of whether you can determine his blood alcohol level. The defendant's blood alcohol level is not an element of that charge. It is only a piece of evidence relevant to the question of whether he was under the influence to the point that he could not drive safely.

If you believe that the defendant drove, operated or was in control of the vehicle when his blood alcohol level was more than five one-hundredths of one percent or 0.05 percent, but less than ten one-hundredths of one percent or 0.1 percent, you cannot infer from that fact that the defendant either was or was not under the influence of alcohol to a degree which made him incapable of safe driving but do not ignore that fact. Consider the defendant's blood alcohol level along with all the other evidence relevant to his condition when you decide whether the defendant was under the influence to the point that he could not drive safely.

These instructions properly oriented the jury in evaluating the relevant proof of a violation of Section 3731(a)(1). This Court has explained that "[s]ubsection (a)(1) is a general provision and provides no specific restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving." Commonwealth v. Loeper, 541 Pa. 393, 402-03, 663 A.2d 669, 673-74 (1995). Thus, evidence of McCurdy's blood alcohol content was admissible under subsection (a)(1), along with other competent evidence, on the issue of whether McCurdy was under the influence of alcohol to a degree that rendered him incapable of safe driving. See 75 Pa.C.S. § 1547(c); see also Commonwealth v. Gonzalez, 519 Pa. 116, 126-27, 546 A.2d 26, 31 (1988)(plurality opinion).³ Moreover, the fact that McCurdy's blood was not withdrawn until 1:55 a.m., when the accident occurred at approximately 12:20 a.m., affects the weight of such evidence, not its admissibility. See generally Commonwealth v. Curran, 700 A.2d 1333, 1336 (Pa.Super.1997); Commonwealth v. Phillips, 700 A.2d 1281, 1288 (Pa.Super.1997)(plurality opinion), appeal denied, 555 Pa. 718, 724 A.2d 934 (1998). Accordingly, the trial court did not err in instructing the jurors to consider, along with other evidence, McCurdy's blood alcohol level in deciding whether he was under the influence of alcohol to a degree that rendered him incapable of safe driving pursuant to Section 3731(a)(1).⁴

McCurdy also maintains that because his conviction for homicide by vehicle while driving under the influence may have been predicated upon his driving under the influence conviction pursuant to Section 3731(a)(5), he is entitled to a new trial. McCurdy's argument, however, misapprehends the statutes at issue. The offense of homicide by vehicle while driving under the influence provides in relevant part:

Any person who unintentionally causes the death of another person as the result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the second degree when the violation is the cause of death....

75 Pa.C.S. § 3735. Thus, homicide by vehicle while driving under the influence requires: 1) a conviction for driving under the influence pursuant to Section 3731, and 2) proof that this violation caused the death. See Commonwealth v. Lenhart, 520 Pa. 189, 193, 553 A.2d 909, 911 (1989).

With regard to the first element, an offense under Section 3731 may be proven by evidence that an individual operated a vehicle under the influence of alcohol to a degree that rendered him incapable of safe driving (subsection (a)(1)), or, while the amount of alcohol by weight in his blood was .10 percent or greater (subsection (a)(4)). At the time of McCurdy's offense, Section...