Commonwealth of Pa. v. Mobley

• Decision Date: 14 January 2011
• Citation: 14 A.3d 887,2011 PA Super 14
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Andre Rene MOBLEY, Appellant.
• Court: Pennsylvania Superior Court

14 A.3d 887

2011 PA Super 14

COMMONWEALTH of Pennsylvania, Appellee

v.Andre Rene MOBLEY, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 1, 2010.Filed Jan. 14, 2011.

Joshua R. Roberts, Public Defender, Suzanne M. Swann, Chief Public Defender, Pittsburgh, for appellant.Michael W. Streily, Deputy District Attorney and Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.BEFORE: BOWES, LAZARUS, and FREEDBERG, JJ.OPINION BY BOWES, J.:

Andre Rene Mobley appeals from the judgment of sentence of six months probation and a concurrent sentence of ten days intermediate punishment imposed by the trial court following his conviction of 75 Pa.C.S. § 3802(a)(1), driving under the influence (“DUI”) general impairment.¹ We affirm.

At approximately 1:00 a.m. on June 1, 2008, Officer Mark Johnson of the Rankin Police Department, while on routine patrol in a marked police cruiser, observed Appellant fail to come to a complete stop at a stop sign. Officer Johnson effectuated a traffic stop and when he approached Appellant's vehicle detected the odor of alcohol emanating from the car. In addition, he observed that Appellant's speech patterns were slow and that he appeared disoriented. Appellant was unable to provide his driver's license and Officer Johnson asked that he alight from the automobile. Upon Appellant's exit, the officer again noticed the smell of alcohol permeating Appellant. Accordingly, Officer Johnson requested a backup officer to conduct field sobriety tests.

Officer Kenneth Nicols responded to the call and arrived at the scene within minutes. He then administered four field sobriety tests: the finger dexterity test, the finger-to-nose test, the nine-step-walk-and-turn test, and the alphabet test. Appellant failed each one, and the officers placed Appellant under arrest and transported him to UPMC Braddock for a blood alcohol test. Officer Nicols administered O'Connell warnings ² to Appellant and instructed him about the ramifications of a blood test refusal. Appellant, nevertheless, refused to submit to the blood test claiming a fear of needles. Subsequently, the trial court concluded that Appellant was guilty of two counts of DUI—general impairment. Appellant filed a post-sentence motion that was denied, and this timely appeal followed.

The trial court directed that Appellant file a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal. Appellant complied and the trial court authored its 1925(a) opinion. He now raises the following issue for our consideration.

I. Was the evidence adduced by the Commonwealth sufficient to prove beyond a reasonable doubt that on the night in question Mr. Mobley was rendered incapable of safely operating a motor vehicle because of alcohol consumption?

Appellant's brief at 4.

Our standard of review for a sufficiency claim is well settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super.2010) (internal quotations and citations omitted).

Appellant concedes that he was in physical control of the vehicle and does not challenge the finding that he drove his car after consuming alcohol; rather, he maintains that the trial court incorrectly concluded that there was sufficient evidence presented to establish that he was incapable of safe driving. In support of that contention, Appellant argues that the Commonwealth's evidence failed to reflect that he operated his vehicle in an unsafe manner. He submits that the evidence indicates that he was not driving erratically or out of control nor was he “belligerent, confused, staggering, swaying or physically incapacitated in any way.” Appellant's brief at 16. Further, he argues that his eyes were not glassy or bloodshot nor was he slurring his speech.

Lastly, Appellant maintains that he did not fail the field sobriety tests due to swaying, staggering, or a loss of coordination. Appellant points out that he failed the walk-and-turn test as the result of having “an unspecified amount of space between his heel and toe.” Id. In addition, Officer Nicols deemed him to have failed the finger-to-nose test because he confused his right and left hands. With respect to the finger-dexterity test, Appellant notes that he failed that test as a result of reciting an incorrect number when touching his thumb to his fingers.

The Commonwealth replies that the circumstantial evidence in the instant case is sufficient to prove that Appellant was incapable of safe driving. In leveling its argument, the Commonwealth points out that Appellant failed to stop at a stop sign despite Officer Johnson's marked police vehicle being in full view as Appellant approached the stop sign. Further, he failed four field sobriety tests, including being unable to recite, rather than sing, the alphabet. According to the Commonwealth, these factors, “coupled with the strong odor of alcohol coming from his person, his disorientation as the officer approached him, his slowed speech and his refusal to submit to a chemical test,” support the trial court's conclusion that Appellant was incapable of safe driving. We agree.

In order to be found guilty of DUI—general impairment, an individual's alcohol consumption must substantially impair his or her ability to safely operate a vehicle. Commonwealth v. Palmer, 751 A.2d 223 (Pa.Super.2000). Evidence of erratic driving is not a necessary precursor to a finding of guilt under the relevant statute. The Commonwealth may prove that a person is incapable of safe driving through the failure of a field sobriety test. Id.; see also Commonwealth v. Smith, 831 A.2d 636 (Pa.Super.2003). Herein, Appellant failed four separate field sobriety tests, smelled of alcohol, and proceeded to coast through a stop sign despite a police officer being in plain view. This evidence viewed in a light most favorable to the Commonwealth cannot be considered so weak and inconclusive that no probability of fact can be drawn from the circumstances. Accordingly, Appellant's sufficiency claim must fail.

We write further, however, to address the fact that the trial court convicted Appellant of two separate counts of DUI—general impairment arising out of the same incident, with one count alleging Appellant refused the breath/blood test.³ The refusal of a blood alcohol content (“BAC”) test is not a separate element under 75 Pa.C.S. § 3802; rather, those who refuse a BAC test must be charged pursuant to 75 Pa.C.S. § 3802(a)(1), general impairment.⁴ Since refusal of a breath/blood test is not an element of the criminal offense that pertains to guilt, the court should not have convicted Appellant of the same criminal offense, DUI—general impairment, arising out of the identical criminal episode.⁵ Instead, Appellant should have been convicted of one count of DUI—general impairment and been subject to the sentencing enhancement provided by statute relative to a blood or breath test refusal. See 75 Pa.C.S. § 3803(b)(2)(4); 75 Pa.C.S. § 3804(c).⁶

It is well established that a breath/blood test refusal is civil in nature and not a criminal offense and does not require Miranda warnings. See Commonwealth v. O'Connell, 521 Pa. 242, 555 A.2d 873, 877 (1989) ( “requests to submit to blood and breath tests are civil proceedings and that the right to consult with an attorney before taking the test is not recognized in Pennsylvania.”). Indeed, O'Connell warnings are given, and not Miranda warnings, precisely because a breath/blood test refusal is not a criminal element or offense. This Court recently expounded upon the distinction between the elements of a crime and the factors related to the grading of an offense.

When the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation, and its overriding purpose must be to ascertain and effectuate the legislative intent underlying the statute.” Commonwealth v. Booth, 564 Pa. 228, 233, 766 A.2d 843, 846 (2001); see also Section 1921(a) of the Statutory Construction Act of 1972(Act), 1 Pa.C.S. § 1921(a) (providing in relevant part: “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.”). Generally, the clearest indication of legislative intent is the plain language of the statute itself. Commonwealth v. Davidson, 595 Pa. 1, 32, 938 A.2d 198, 216 (2007). As we have stated:

To determine the meaning of a statute, a court must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. It is only when the words of the statute are not explicit on the point at issue that resort to statutory construction is appropriate. However, basic principles of statutory construction demand that when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of...