Com. v. Zugay

• Decision Date: 19 January 2000
• Citation: 745 A.2d 639,2000 PA Super 15
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David J. ZUGAY, Appellant.
• Court: Pennsylvania Superior Court

745 A.2d 639

2000 PA Super 15

COMMONWEALTH of Pennsylvania, Appellee, v. David J. ZUGAY, Appellant.

Superior Court of Pennsylvania.

Submitted November 8, 1999.

Filed January 19, 2000.

Kevin Prosser, Duncannon, for appellant.

R. Scott Cramer, District Attorney, Duncannon, for Commonwealth, appellee.

Before FORD ELLIOTT and HESTER, JJ., and CIRILLO, President Judge Emeritus. CIRILLO, President Judge Emeritus.

¶ 1 David Zugay appeals from his December 17, 1998 sentence of imprisonment for seven days to 18 months, plus a $500.00 fine, imposed following his jury trial and conviction for driving under the influence of alcohol (DUI) under both 75 Pa.C.S. § 3731(a)(1) and § 3731(a)(4).¹

¶ 2 The trial court has not filed an opinion,² and the Commonwealth has not included a statement of facts in its brief. The following recitation of facts is gleaned directly from the record certified on appeal.

¶ 3 On January 10, 1998, at 2:00 a.m., Trooper Michael Paul Hogan, a State Police Trooper in Perry County with 14 years of experience including approximately 75 DUI arrests, and his partner, Trooper Todd Graybill, received a call to proceed to the scene of an accident involving a truck. Because the Troopers were so busy responding to accidents that night, Trooper Hogan testified that he and his partner had called a tow truck driver and had authorized the driver to pull the vehicle back on to the road before they arrived on the scene. When they arrived at 2:21 a.m., the driver of the vehicle was not present, but the tow truck operator had pulled the truck back on to the road as requested. The officers observed evidence that the truck had gone down a slight embankment, and they could see the tire tracks in the grass and debris there. In the direction of the vehicle's travel, the road curves to the left, while the vehicle had gone straight and down the embankment. There was no snow or ice on the road that night, and it was not raining or snowing; the Trooper testified that the road conditions were normal and not adverse. There were no skid marks on the road. At 2:27 a.m., Zugay arrived, having been driven to the scene by Marilyn Miller, his girlfriend. He got out of the vehicle and walked toward the officers, and in doing so, he staggered.

¶ 4 Trooper Hogan testified that, in response to the officers' question, Zugay told them that he had been the driver of the truck. Zugay did not appear to be injured, but Trooper Hogan noticed that although Zugay faced him with his body, he kept his head turned unusually far to his left as he conversed with him. The Trooper asked Zugay for his driver's license, and he handed Trooper Hogan his military identification card. The Trooper returned it and asked again for his driver's license, which Zugay then gave him. Trooper Hogan asked Zugay why he had his head turned so far to his left, but Zugay did not respond; the Trooper asked him to turn his head and face him.

¶ 5 Trooper Hogan testified that Zugay's eyes were bloodshot, that he smelled of alcohol, that his speech was slurred and very slow, and that he was swaying back and forth.

¶ 6 At this point, Trooper Hogan read Zugay his Miranda³ rights. Zugay, in response to the Trooper's questions, then admitted again that he had been the driver of the truck, that he had been alone, and that he had consumed no alcohol between the time of the incident and the present conversation. He also stated that he had been drinking in Harrisburg, approximately ten miles from the accident location, where he had consumed approximately six beers. He explained that someone had picked him up at the scene and had taken him home, but that he could not recall who had done so, because he might have blacked out. He did not explain how the accident happened, but he stated that it had occurred at midnight.

¶ 7 Trooper Hogan testified that he then performed field sobriety tests and noted that Zugay's responses were unusually slow and that he appeared confused and incoherent. It was Trooper Hogan's opinion that Zugay was intoxicated. Trooper Hogan then arrested him for DUI. Due to his statement about blacking out, together with the fact that Miller had expressed concern that he might be injured, Zugay was transported to a hospital, rather than to the state police barracks, so that a blood sample might be obtained for later testing. The blood was drawn at 3:57 a.m., 90 minutes after Zugay had arrived on the scene, and the Trooper retained the sealed sample. It was later transported to a State Police laboratory in Harrisburg. Although Zugay had refused to sign admissions forms, he was then taken for examination within the emergency area of the hospital. At that point, the Troopers left the hospital, but when Trooper Hogan telephoned the hospital at 7:00 a.m., a doctor told him that Zugay and Miller had left the emergency room area before Zugay had been examined.

¶ 8 Trooper Hogan's opinion was that Zugay had been operating his vehicle under the influence of alcohol and that he had been incapable of driving safely due to his intoxicated state.

¶ 9 The medical laboratory technician testified as to her procedures in drawing the blood. A forensic scientist with the State Police Crime Lab in Harrisburg testified to receiving the sealed blood and performing a Blood-Alcohol Content (BAC) test on it, which indicated a BAC level of 0.192%. The Commonwealth presented no evidence to relate this back to the time of driving.

¶ 10 Zugay presented the testimony of Marilyn Miller, his paramour. She testified that he had arrived home that evening at approximately 11:00 p.m., while the news was on. Zugay immediately went to the refrigerator and got a beer, and he sat down and watched television with her. She testified that he exhibited no signs of intoxication when he arrived at home, and that she heard someone's vehicle pulling away just before he walked in. When she asked him where his truck was, he answered that it was down the road and that he had wrecked it. She testified that she was concerned about the expensive tools in it being stolen, and that she wanted to go and see if they might be able to get it home themselves, but that he thought that would be impossible. Though it took her some time to convince him, she eventually did, and she drove them there. Although it was not raining, she testified that the road surface was wet. She there observed that the truck was on its side and down an embankment. They returned home, but Zugay did not want to do anything, and he continued drinking. Miller testified that she called a tow truck and that the person who answered told her that the truck operator was out and would call her back. She received a call back some time after 1:00 a.m. from the driver, whom she agreed to meet at the scene. Zugay stayed at their house, drinking. Miller went out to meet the driver, who told her at the scene that he would have to report the accident to the police. After he did, he told Miller to bring Zugay back to the scene so that he could be questioned by the police. She did so.

¶ 11 Trooper Todd A. Graybill, Trooper Hogan's partner that night, testified in rebuttal for the Commonwealth. He testified that he spoke primarily with Miller on the scene. She told him that Zugay arrived home that night at 1:00 a.m., lay down on the couch, and immediately fell asleep. She told the Trooper she had difficulty waking Zugay up, but that when she did, he told her his truck was down the road. In response to his question, Miller specifically told the Trooper that Zugay had not had anything to drink since he had come home.

¶ 12 Miller was convicted of DUI under both section 3731(a)(1) and section 3731(a)(4) of the Vehicle Code and was later sentenced. Post-sentence motions were filed, answered, and denied. This timely appeal followed. Requesting a new trial or re-sentencing, Zugay presents the following three issues for our resolution:

1. Is it reversible error to allow the admission of evidence concerning a defendant's blood[-]alcohol content when the last time the defendant could have driven was at least three (3) hours before the blood[-]alcohol [test] was taken, the defendant's blood[-]alcohol content was .192[%] at the time of the test, the defendant submits evidence that he drank alcohol between the time of driving and the time of the test, and the Commonwealth fails to introduce an expert to relate the BAC at the time of the test back to the time of driving?

2. Is it a violation of the corpus delicti rule and reversible error to allow a jury to hear a defendant's admissions in a driving under the influence case, when no evidence is presented to show that the defendant was driving the vehicle prior to the admission being introduced?

3. Is it a manifest abuse of discretion to use an independent witness's testimony as an aggravating factor in fashioning a sentence for a defendant that did not testify, such that the defendant's sentence should be suspended and the defendant's case should be remanded for resentencing?

¶ 13 Immediately prior to trial, Zugay filed a motion in limine seeking to exclude the BAC result due to the Commonwealth's stated intent not to present expert testimony to relate the BAC result back to the time of driving; his motion was denied. Zugay's first issue is, in part, a challenge to the propriety of the denial of his motion. "A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered." Commonwealth v. Johnson, 399 Pa.Super. 266, 268-70, 582 A.2d 336, 337 (1990),aff'd,534 Pa. 51, 626 A.2d 514 (1993). Such a ruling is similar to that upon a motion to suppress evidence. Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d 866, 868 (1996). However, we apply an evidentiary abuse of discretion standard to the denial of a motion in limine. Commonwealth v. Chmiel, 558 Pa. 478, 493-94, 738 A.2d 406, 414 (1999)

(petition for cert. filed Nov. 11,...