Com. v. Thur
| Decision Date | 04 August 2006 |
| Citation | 906 A.2d 552 |
| Court | Pennsylvania Superior Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. George A. THUR, Appellant. |
Walter Lucas, Cleveland, OH, for appellant.
Michael Handler, Asst. Dist. Atty., Indiana, for Com., appellee.
BEFORE: DEL SOLE, P.J.E., ORIE MELVIN and COLVILLE*, JJ.
Introduction
OPINION BY COLVILLE, J.:
¶ 1 George Thur appeals the judgment of sentence imposed after his conviction for involuntary manslaughter, homicide by vehicle while driving under the influence, homicide by vehicle (non-DUI related), driving under the influence, and numerous summary traffic violations. His brief raises eight issues which we have separated and reordered as follows:
(1) whether the driving under the influence statute at 75 Pa.C.S.A. § 3802(c) violates the federal and state guarantees of due process;
(2) whether the driving under the influence statute at 75 Pa.C.S.A. § 3802(a)(1) violates those same due process provisions;
(3) whether the statute proscribing homicide by vehicle while driving under the influence violates due process;
(4) whether the trial court should have suppressed the chemical test results;
(5) whether the trial court's jury instructions on driving under the influence allowed the jurors to speculate impermissibly as to what Appellant's blood alcohol content was at the time of driving, and whether this speculation deprived Appellant of his due process right to demand that the Commonwealth prove all elements of the DUI offense;
(6) whether the trial court's jury instructions on homicide by vehicle while DUI allowed the jurors to speculate impermissibly as to what Appellant's blood alcohol content was at the time of driving, and whether this speculation deprived him of his due process right to demand that the Commonwealth prove all the elements of the homicide offense;
(7) whether there was sufficient evidence to sustain the conviction for homicide by vehicle while driving under the influence; and
(8) whether the conviction for DUI merged with the conviction for homicide by vehicle while DUI, thus making it illegal for the sentencing court to impose penalties on both counts.
¶ 2 We affirm with respect to Appellant's first seven claims. Regarding his eighth issue, we vacate the judgment of sentence on the DUI counts.
Facts
¶ 3 The trial evidence revealed the following facts. On June 13, 2004, between 5:00 and 5:15 p.m., Sandra Ohler was driving her car west on U.S. Route 422. Ahead of her on the road, traveling in the same direction, Appellant was driving his truck. Ohler followed the truck for roughly one mile, noticing no erratic driving or other indications that Appellant was having any trouble operating his vehicle. As Appellant rounded a curve, Ohler watched his vehicle move into the oncoming lane and collide head-on with an S-10 truck.
¶ 4 Stopping her car, Ohler went to Appellant's truck and saw that he was the sole occupant. She noticed beer cans scattered around the outside of the vehicle and she smelled alcohol. Appellant had a bloody nose and was somewhat belligerent with Ohler. The two occupants of the oncoming S-10 died from the blunt force trauma of the crash.
¶ 5 State Police arrived at the scene. One trooper, Douglas Berezansky, saw five unopened beer cans on the road berm just outside Appellant's truck. He also saw five cans inside the truck, one of which was open and empty. All of the cans were cold. There was also a cooler in the truck. Berezansky smelled beer and saw that Appellant's air bag had been deployed.
¶ 6 A second trooper, Ralph Greene, approached Appellant as he sat in an ambulance. The trooper noticed that Appellant had red, bloodshot eyes and smelled moderately of alcohol. Greene also observed that Appellant's speech was, at times, slow and labored.
¶ 7 Appellant was taken to the hospital. While there, Trooper Greene arrested Appellant for DUI and then obtained his written consent for a blood test. The blood sample, drawn at 6:50 p.m., showed a blood alcohol content (BAC) of 0.19%.
¶ 8 Trooper Michael Schmidt, a collision specialist, reconstructed the accident. He determined that Appellant's vehicle crossed the center line and caused the collision. According to Schmidt, neither vehicle was traveling at an excessive speed, and there was no evidence of mechanical failure in either truck.
¶ 9 The Commonwealth charged Appellant with the previously mentioned crimes. He proceeded to a jury trial and lost.
¶ 10 The sentencing court imposed the following penalties:
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Offense Sentence
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Homicide by Vehicle Not less than 3½ nor more than
While DUI 10 years, consecutive at each
(2 Counts) count
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Involuntary Manslaughter Not less than 1 nor more than 2½
(2 Counts) years, consecutive at each count
and consecutive to the homicide
by vehicle while DUI counts
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Homicide by Vehicle No further penalty
Non-DUI (2 Counts)
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DUI (BAC ≥ 0.16%) Not less than 72 hours nor more
(1 Count) than 6 months, concurrent with
all other sentences
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DUI General Impairment No further penalty
(1 Count)
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Summary Traffic Fines
Offenses
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Total Incarceration Not less than 9 nor more than
25 years
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¶ 11 At the homicide, manslaughter, and DUI counts, the court also imposed restitution and various fines, along with the alcohol evaluations and safe driving classes required because of the DUI convictions.
Statutes in Question
¶ 12 While Appellant raises eight issues, they all relate to one or more of the following three statutes.
75 Pa.C.S.A. § 3802. Driving under the influence of alcohol or controlled substance
(a) General Impairment —
(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.
* * * * * *
(c) Highest rate of alcohol. — An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is 0.16% or higher within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.
* * * * * *
75 Pa.C.S.A. § 3735. Homicide by vehicle while driving under the influence
(a) Offense defined. — Any person who unintentionally causes the death of another person as the result of a violation of section 3802 () and who is convicted of violating section 3802 is guilty of a felony of the second degree when the violation is the cause of death ....
* * * * * *
75 Pa.C.S.A. § 1547. Chemical testing to determine amount of alcohol or controlled substance
(a) General rule. — Any person who drives ... a vehicle in this Commonwealth shall be deemed to have given consent to [a chemical test of blood] ... for the purpose of determining the alcoholic content of blood ... if a police officer has reasonable grounds to believe the person to have been driving ...:
(1) in violation of section ... 3802 (relating to driving under influence of alcohol) ...
* * * * * *
(c) Test results admissible in evidence. — In any ... criminal proceeding in which the defendant is charged with a violation of section 3802 ... the amount of alcohol ... in the defendant's blood, as shown by chemical testing ... shall be admissible in evidence.
* * * * * *
Whether the driving under the influence statute at 75 Pa.C.S.A. § 3802(c) violates the federal and state guarantees of due process.
¶ 13 Appellant first challenges the constitutionality of the driving under the influence statute at 75 Pa.C.S.A. § 3802(c). He contends that this subsection violates the due process provisions under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. More particularly, he argues that Subsection 3802(c): (1) is void for vagueness; (2) is overly broad; (3) relieves the Commonwealth of its burden to prove that the accused had a certain BAC at the time of driving; and (4) creates an irrebuttable presumption that a BAC at the time of testing necessarily means that the accused had that BAC at the time he drove. We start by reviewing the general principles applicable to each of these four arguments.
Principles of Due Process Analysis
¶ 14 Due process demands that a statute not be vague. Commonwealth v. Mayfield, 574 Pa. 460, 832 A.2d 418, 422 (2003); Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162, 165 (1996). A statute is vague if it fails to give people of ordinary intelligence fair notice as to what conduct is forbidden, or if they cannot gauge their future, contemplated conduct, or if it encourages arbitrary or discriminatory enforcement. Commonwealth v. McCoy, 895 A.2d 18, 30 (Pa.Super.2006). A vague law is one whose terms necessarily require people to guess at its meaning. Mayfield, 832 A.2d at 422. If a law is deficient — vague — in any of these ways,...
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