Com. v. Nicotra

• Decision Date: 07 June 1993
• Citation: 425 Pa.Super. 600,625 A.2d 1259
• Parties: COMMONWEALTH of Pennsylvania v. William Anthony NICOTRA, Sr., Appellant.
• Court: Pennsylvania Superior Court

Page 1259

625 A.2d 1259

425 Pa.Super. 600

COMMONWEALTH of Pennsylvania v. William Anthony NICOTRA, Sr., Appellant.

Superior Court of Pennsylvania.

Submitted March 15, 1993.

Filed June 7, 1993.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Claire C. Capristo and James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before ROWLEY, President Judge, and WIEAND and OLSZEWSKI, JJ.

WIEAND, Judge:

William Anthony Nicotra, Sr. was tried non-jury and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(1) and (a)(4); homicide by vehicle while driving under the influence of alcohol in violation of 75 Pa.C.S. § 3735; homicide by vehicle in violation of 75 Pa.C.S. § 3732; involuntary manslaughter in violation of 18 Pa.C.S. § 2504; aggravated assault in violation of 18 Pa.C.S. § 2702(a)(1); recklessly endangering another person in violation of 18 Pa.C.S. § 2705; and careless driving in violation of 75 Pa.C.S. § 3714. Post-trial motions were denied, and Nicotra was sentenced to serve consecutive terms of imprisonment for not less than three (3) years nor more than six (6) years for homicide by vehicle while driving under the influence of alcohol, not less than thirty (30) days nor more than sixty (60) days for drunk driving pursuant to 75 Pa.C.S. § 3731(a)(1) and not less than one (1) year nor more than two (2) years for aggravated assault. ¹ On direct appeal from the judgment of sentence, Nicotra argues that there was insufficient evidence to sustain his convictions for homicide by vehicle while driving under the influence of alcohol, homicide by vehicle, involuntary manslaughter or aggravated assault because the Commonwealth failed to prove beyond a reasonable doubt that his intoxication and reckless driving caused the traffic accident on which the charges were based. ² He also contends that his conviction for drunk driving should have merged for purposes of sentencing with his conviction for homicide by vehicle while driving under the influence of alcohol.

In evaluating a challenge to the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). "[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). In addition, the facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the [factfinder] unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

So viewed, the evidence at trial established that, on February 21, 1991, at or about 5:00 p.m., appellant was observed operating a white Chrysler automobile at a high rate of speed, driving through three stop signs without braking or reducing speed, and then making a hard left turn, with tires screeching, onto Ohio River Boulevard in Allegheny County. Once on Ohio River Boulevard, appellant moved in a southerly direction at speeds estimated to exceed the posted speed limit by approximately ten to twenty miles per hour. As appellant approached the intersection with Meade Avenue, he abruptly changed lanes, without signaling, to pass several cars that were waiting to make a left turn. At the same time, i.e., approximately 5:15 p.m., Lorainne Billie was operating a Chevrolet Nova automobile in a northerly direction on Ohio River Boulevard, with her friend Donna Hollis riding as a passenger. Billie proceeded to slow her vehicle and signaled to make a left turn into an Amoco gas station located a short distance south of the intersection of Ohio River Boulevard and Meade Avenue. Prior to starting her turn, Billie waited for oncoming traffic to pass and, when the way was clear, began making the turn. After Billie had started making the turn, her passenger, Donna Hollis, screamed. When Billie looked to her right, she observed appellant's vehicle coming directly at her. Billie attempted to accelerate her vehicle to avoid a collision, but to no avail. Appellant's vehicle struck the passenger side of Billie's vehicle. At the time of impact, Billie had almost completed her turn, for the front end of her vehicle had already entered the ramp to the gas station. The force of the collision pushed Billie's vehicle into a nearby utility pole.

At the scene of the accident, appellant was described by police and civilian witnesses as having an odor of alcohol on his breath, with glassy, bloodshot eyes, slurred speech, and an evident lack of coordination. There was also evidence that appellant had not been wearing eyeglasses at the time of the accident, despite a restriction on his driver's license which required him to wear corrective lenses while operating a vehicle. After appellant had been placed under arrest for drunk driving, he was transported to the hospital for a blood test. This test was performed approximately one hour after the accident and disclosed that appellant's blood alcohol content was .218%.

Both occupants of the Billie vehicle were taken to the hospital for medical treatment. Lorainne Billie suffered injuries, including permanent scarring of her right arm, which required hospitalization for a period of four days. Donna Hollis suffered severe traumatic injuries and died shortly after her arrival at the hospital.

The Commonwealth called Detective Gary Tallent as an expert witness on the reconstruction of traffic accidents. Tallent testified that there had been no adverse weather conditions on the day of the accident and no observable defects to the roadway, which could have contributed to the cause of the accident. He testified further that he was able to identify two successive sets of skid marks from appellant's vehicle in the southbound lane of Ohio River Boulevard, adjacent to the curb. These tire marks were measured to be 85.7 feet in length and led up to the point of impact. Tallent said it appeared that appellant had initially braked his vehicle, after which he briefly took his foot off the brake pedal and then again applied the brakes. Regarding the circumstances surrounding the collision of appellant's vehicle with the vehicle operated by Lorainne Billie, the witness opined as follows:

The front end damage to the Nicotra vehicle indicated that's where his vehicle struck the Nova. The damage to the Nova was significantly along the right side and matched with the damage of the front end of the Nicotra vehicle, so I was able to say, obviously, that the front end of the Nicotra vehicle struck the right side of the Lorainne Billie car at nearly a right angle, or a broadside type situation. Along with those findings I found or located those scuff marks which were in the entrance ramp to the Amoco station. Those scuff marks indicated that the Nova was partially into the gas station at the time of the collision. The front end of that vehicle, the tires and approximately the first third of that vehicle, would have entered onto the ramp of the Amoco station at the time of the collision. What happened at that point was the Nicotra vehicle struck the right side of the Nova and drove the Nova sideways, which created those scuff marks. The Nova was driven basically in a northerly, slightly northwesterly direction. I'm sorry, southwesterly direction. The left rear tire of the Nova then hits a high curb and then proceeded to strike against the steel utility pole, which created additional damage along the left side of the car.

Based upon the position of the skid marks leading to the point of impact and the gouge marks on the roadway at the point of impact, Detective Tallent was able to opine further that at the time of collision, appellant's vehicle had been moving at a high rate of speed.

The Commonwealth also presented the testimony of Dr. Wagdy Wahba, the manager of the Allegheny County Toxicology Laboratory, who testified regarding the effects of alcohol upon the central nervous system. He stated that alcohol acts as a depressant and has an adverse effect upon a person's sensory functions, i.e., hearing and vision. It also affects his or her motor functions and his or her judgment. A person who is under the influence of alcohol, Dr. Wahba testified, would have a slowed reaction time, which would delay the time in which he or she could move his or her foot from the accelerator to the brake of an automobile. Also, Dr. Wahba said, alcohol would affect a person's judgment by decreasing his or her inhibitions, thereby increasing the chances of risk taking. According to Dr. Wahba, a person with a blood alcohol content of .218% would not have the capability to operate a motor vehicle safely.

Appellant concedes that the Commonwealth's evidence established that he had been driving while intoxicated and in excess of the speed limit. He argues, however, that there was no evidence that his intoxication or his speeding had caused the accident in which Lorainne Billie was...