Com. v. Oliver

• Decision Date: 07 May 1997
• Citation: 693 A.2d 1342
• Parties: COMMONWEALTH of Pennsylvania, v. Kenneth F. OLIVER, Appellant.
• Court: Pennsylvania Superior Court

Page 1342

693 A.2d 1342

COMMONWEALTH of Pennsylvania, v. Kenneth F. OLIVER, Appellant.

Superior Court of Pennsylvania.

Submitted March 6, 1997.

Filed May 7, 1997.

David Crowley, Public Defender, Bellefonte, for appellant.

J. Karen Arnold, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

Before CIRILLO, President Judge Emeritus, POPOVICH and HESTER, JJ.

HESTER, Judge.

This direct appeal by appellant, Kenneth Oliver, is from the judgment of sentence of two to four years imprisonment entered following his conviction by a jury of three counts of furnishing alcohol to minors and two counts of corruption of the morals of minors. We affirm.

Appellant was charged with furnishing alcohol to minors Wes Dietrich, Amber Day, Lemuel Crater, and Marcia Bressler on May 21, 1994, and corrupting the morals of Amber Day and Lemuel Crater. In the early morning hours of May 22, 1994, a vehicle driven by Wes Dietrich collided with a vehicle driven by Adam Nichols. Amber Day, a passenger in the Nichols vehicle, died as a result of injuries suffered in the crash. The drivers of both vehicles faced criminal charges resulting from that accident in Howard, Pennsylvania. Those charges are not involved herein.

Appellant raises the following issues for our review:

Whether the sentencing court abused its discretion in imposing an excessive sentence?

Whether the evidence was insufficient to establish the crimes for which the defendant was convicted?

Whether trial counsel was ineffective for failing to seek a cautionary instruction that the jury was not to use a police officer's recollection of a statement by a Commonwealth witness as substantive proof of that statement?

Whether the inconsistencies in the verdicts require arrest of judgment?

Appellant's brief at 9.

We begin by addressing the sufficiency of the evidence. Appellant notes that the only evidence offered by the Commonwealth that the beverages provided to the minors were alcoholic beverages was the testimony of Lemuel Crater and Marcia Bressler. Under Commonwealth v. Erney, 212 Pa.Super. 174, 239 A.2d 818 (1968), "a minor's testimony and observations of taste and smell are insufficient to prove the alcohol content of the beverage in question." Appellant's brief at 24. Thus, appellant contends the evidence was not sufficient to support his convictions.

Our standard for reviewing the sufficiency of the evidence is well-settled.

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the fact-finder could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988); see also Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993); Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778 (1992); Commonwealth v. Scott, 376 Pa.Super. 416, 546 A.2d 96 (1988). In applying this test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. See Commonwealth v. Blystone, supra. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. See Commonwealth v. Nicotra, 425 Pa.Super. 600, 625 A.2d 1259 (1993). Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Id.

Commonwealth v. Cassidy, 447 Pa.Super. 192, 194-95, 668 A.2d 1143, 1144 (1995).

Selling or furnishing liquor or malt or brewed beverages to minors, 18 Pa.C.S. § 6310.1 provides, in pertinent part:

[A] person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.

The Crimes Code defines liquor as

any alcoholic, spirituous, vinous, fermented or other alcoholic beverage ... which contain[s] more than 1.50% of alcohol by volume....

18 Pa.C.S. § 6310.6. Malt or brewed beverages are defined as:

Any beer, lager beer, ale porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.

Id.

Commonwealth v. Erney, supra, and Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 609 A.2d 791 (1992), suggest that the Commonwealth was required to provide chemical testing of the beverages appellant provided to the minors herein. However, following our Supreme Court's decision in Tau Kappa Epsilon, the Pennsylvania Legislature enacted a statute which eliminates any such requirement. That statute, 75 Pa.C.S. § 6312, which is applicable to titles 75, 18, and 42, see 75 Pa.C.S. § 6312(a), provides, in pertinent part:

In an action or proceeding ... in which a material element of the offense is that a substance is liquor or a malt or brewed beverage, all of the following apply:

(1) Chemical analysis is not required to prove that the substance is liquor or a malt or brewed beverage.

(2) Circumstantial evidence is sufficient to prove that the substance is liquor or a malt or brewed beverage.

With the above statutes in mind, we examine the evidence.

Lemuel Crater testified that he stopped at appellant's residence about 7:30 or 8:00 on the evening of May 21, 1994, when he observed appellant, appellant's wife, Barbara, Amber Day, and Wes Dietrich sitting on appellant's porch. Amber Day was drinking a wine cooler, which she described as such in Crater's presence, and Crater testified that he had a sip of it. Notes of Testimony (N.T.), 3/20/95, ¹ at 23, 29. Lem Crater also testified that appellant and Wes Dietrich were drinking beer which came from a keg sitting on the deck of the upstairs apartment and that Dietrich also had a wine cooler. Id. at 26, 29. Appellant told Crater to help himself from the keg, which he did. Id. at 27-28.

Jesse Grieb, appellant's upstairs tenant, testified that he and members of his baseball team were at his apartment on May 21, 1994, beginning at about 3:30 p.m., and they ate and drank while planning strategy for an upcoming tournament. Id. at 81, 95-96. Grieb also testified that his friend, Kip Wolf, brought a keg of beer to his apartment about 5:00 p.m. that day. Wolf testified that he left the partially-filled keg on the outside deck, which was accessible from the outside of the house, when he left Grieb's apartment around 7:00 or 7:30 that evening. Id. at 101, 103.

Curt Heverly, a teacher at the local high school, testified that he went to Grieb's apartment about 3:30 p.m. on May 21, 1994, where he had a couple of hamburgers and a few beers. Id. at 80-82. Mr. Heverly testified that he observed appellant's wife and Amber Day that afternoon carrying groceries into appellant's house, including four-packs of wine coolers. Id. at 83-84.

Randall Leathers testified that he was at Grieb's apartment on the afternoon of May 21, 1994. At first, the group drank cans of beer, but when Kip Wolf arrived with a partially-filled keg, they drank from it. Id. at 108. Mr. Leathers also observed Amber Day with appellant and his wife. Id. at 109.

Jerrod Longo was at a bachelor party later that evening which many of the above-named witnesses also attended, and appellant admitted that he attended the party with Amber Day and Wes Dietrich. Id. at 123, A.T.. 3/20/95, at 20, 22. Mr. Longo testified that when appellant, Wes Dietrich, and Amber Day arrived at the party, Amber was drinking a wine cooler and "acted about half smashed." N.T., 3/20/95, at 125. Longo further stated that when he later saw appellant driving Wes Dietrich's car after having attended the bachelor party, appellant told him "that [Wes Dietrich, Adam Nichols, and Amber Day] were too drunk to drive so he drove them home." N.T., 3/20/95, at 126.

Finally, Marcia Bressler testified that she was walking past appellant's house about 1:15 a.m. on May 22, 1994, when she observed Amber Day leaving with Amber's boyfriend, Adam Nichols, who had been present at the bachelor party. Id. at 63. Appellant, who stood talking to Wes Dietrich, gave Bressler a beer. Id. at 60-65.

We believe that the convictions are amply supported by direct and circumstantial evidence, consistency of the testimony of both minors and adults, and we conclude that appellant's argument concerning the sufficiency of the evidence must fail.

Appellant, with new counsel, argues that trial counsel was ineffective for failing to request a cautionary instruction concerning the jury's consideration of Corporal Frederick Caldwell's testimony, offered over the defense's hearsay objection, that at the time of the incident, Marcia Bressler told Corporal Caldwell that the bottle of beer given to her by appellant had a Michelob label on it. At trial, Bressler could not remember what kind of beer it was.

In order to demonstrate ineffective assistance of counsel, an appellant must show: "1) that the underlying claim is of arguable merit; 2) that counsel's performance was unreasonable; and 3) that counsel's ineffectiveness prejudiced defendant." Commonwealth v. Peterkin, 538 Pa. 455, 460, 649 A.2d 121, 123 (1994).

Commonwealth v. Robinson, 452 Pa.Super. 606, 611-13, 682 A.2d 831, 834 (1996). Trial counsel is presumed to be effective,...