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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM NEIL KITHCART,
Appellant
No. 430 MDA 2013
Appeal from the Judgment of Sentence February 6, 2013
in the Court of Common Pleas of Wyoming County
Criminal Division at No.: CP-66-CR-0000343-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.
FILED NOVEMBER 06, 2013
Appellant, William Neil Kithcart, appeals from the judgment of
sentence entered after his convictions of two counts of driving under the
influence of alcohol (DUI).1 We affirm.
We provide the following recitation of facts from the trial court’s
October 10, 2012 opinion:
On August 6, 2011 at approximately 1:00 am, Chief J.E.
Krieg of the Meshoppen Police Department, while patrolling in an
unmarked police cruiser, observed [Appellant] swerve into a
yard and pull out at a high rate of speed. More specifically, Chief
Krieg testified that he was patrolling on Hunter Road, a dirt road,
when he noticed [Appellant’s] vehicle travelling towards him.
[The road was wide enough for both vehicles to pass each other
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*
Retired Senior Judge assigned to the Superior Court.
1
See 75 Pa.C.S.A. §§ 3802(a)(1) and (b).
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without one having to drive off the road]. [Appellant’s] vehicle
then swerved into someone’s lawn, the vehicle jerked back and
swerved back onto the dirt road. At that point, [Appellant]
proceeded down the dirt road at a high rate of speed. A short
pursuit ensued and Chief Krieg pulled over [Appellant’s] vehicle.
Upon pulling [Appellant] over, Chief Krieg observed
[Appellant] to have blood shot eyes, the scent of alcohol coming
from the vehicle and [Appellant] suffering from slurred speech.
[Appellant stated that he had just left the Trail Inn, a local bar.]
Chief Krieg questioned [Appellant] as to why he sped away after
swerving into someone’s yard and [Appellant] responded that he
thought Chief Krieg was a friend chasing him. Chief Krieg then
asked [Appellant] to participate in a field sobriety test, which
included a one leg stand test and a breathalyzer. While taking
the one leg test, [Appellant] swayed his arms attempting to gain
balance.
He eventually lost balance.
[Appellant] then
participated in a [preliminary breath] test that indicated his
blood alcohol level was greater than 0.08 percent, more
specifically 0.119 percent.
[Appellant] was then placed under arrest and charged with
[DUI], 75 [Pa.C.S.A. § 3802(a)(1) and (b)] and Careless Driving,
75 [Pa.C.S.A. § 3714(a)]. [The results of Appellant’s blood
alcohol test revealed his blood alcohol content to be 0.123
percent.] Thereafter, on February 13, 2012[,] [Appellant] filed
[a] Motion to Suppress and an Amended Motion to Suppress on
July 10, 2012. A hearing was held on [Appellant’s] Motions[,
which the trial court denied on October 10, 2012].
(Trial Court Opinion, 10/10/12, at unnumbered pages 1-2).
The case
proceeded to a non-jury trial and, on December 19, 2012, the court
convicted him of two counts of DUI, and acquitted him of careless driving.
(See Verdict, 12/19/12, at 1). On February 6, 2013,2 the court sentenced
Appellant to not less than forty-eight hours nor more than six months’
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2
The sentence was docketed on February 7, 2013.
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imprisonment, plus fines and costs.
Appellant filed post-sentence motions
that the court denied. Appellant timely appealed.3
Appellant raises four issues for our review:
I.
Whether the trial court erred when it concluded the
arresting officer had reasonable suspicion to conduct a traffic
stop of [A]ppellant when the evidence showed that the police
officer was the proximate cause of the alleged traffic violation?
II.
Whether the trial court erred when it determined that the
arresting officer had probable cause to arrest [A]ppellant for
suspicion of DUI after the traffic stop was made?
III. Whether the trial court erred in its verdict because the
evidence presented at trial, even if viewed in a light most
favorable to the Commonwealth as the verdict winner, was
insufficient to sustain a conviction of DUI in that the
Commonwealth failed to prove beyond a reasonable doubt that
[A]ppellant was under the influence of alcohol to such an extent
that it rendered him incapable of driving the vehicle?
IV.
Whether the trial court erred in its verdict because the
evidence presented at trial, even if viewed in a light most
favorable to the Commonwealth as the verdict winner, was
insufficient to sustain a conviction of DUI in that the
Commonwealth failed to prove beyond a reasonable doubt that
the blood being tested was Appellant’s blood?
(Appellant’s Brief, at 5).
In Appellant’s first two issues, he challenges the trial court’s denial of
his motion to suppress. (See id.). Our standard of review of such claims is
well-settled:
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3
Appellant filed a timely statement of errors on March 14, 2013, and the
court filed a Rule 1925(a) order on April 11, 2013, in which it relied on its
October 10, 2012 opinion. See Pa.R.A.P. 1925.
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[W]e may consider only the Commonwealth’s
evidence and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the record
supports the factual findings of the trial court, we are
bound by those facts and may reverse only if the
legal conclusions drawn therefrom are in error.
An appellate court, of course, is not bound by the suppression
court’s conclusions of law.
However, [i]t is within the
suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given their
testimony.
Commonwealth v. Anthony, 977 A.2d 1182, 1185 (Pa. Super. 2009)
(citations and quotation marks omitted).
Here, in his first issue, Appellant argues that Chief Krieg lacked
reasonable suspicion to execute a traffic stop because “the police officer was
the proximate cause of” Appellant’s “swerve” off the road.
(Appellant’s
Brief, at 9). This issue does not merit relief.
Section 6308 of the Vehicle Code provides, in pertinent part, that:
Whenever a police officer . . . has a reasonable suspicion that a
violation of this title is occurring or has occurred, he may stop a
vehicle, upon request or signal, for the purpose of checking the
vehicle’s registration, proof of financial responsibility, vehicle
identification number or engine number or the driver's license, or
to secure such other information as the officer may reasonably
believe to be necessary to enforce the provisions of this title.
75 Pa.C.S.A. § 6308(b); see also Commonwealth v. Chase, 960 A.2d
108, 112 (Pa. 2008) (same).
Reasonable suspicion sufficient to stop a
motorist must be “viewed from the standpoint of an objectively reasonable
police officer.”
Ornelas v. U.S., 517 U.S. 690, 696 (1996).
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Finally, “if
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police can articulate a reasonable suspicion of a Vehicle Code violation, a
constitutional inquiry into the officer’s motive for stopping the vehicle is
unnecessary.” Chase, supra at 120.
Here, at approximately one o’clock on the morning, Chief Krieg
observed Appellant “swerve[] into someone’s lawn, . . . jerk[] back and
swerve[] back onto the dirt road.” (Trial Ct. Op., 10/10/12, at unnumbered
page 1; see also N.T. Suppression Hearing, 9/07/12, at 9-10). The officer
was on his side of the road, which was sufficiently wide for both vehicles to
pass each other without having to drive off of it.
(See N.T. Suppression
Hearing, 9/07/12, at 9). Appellant swerved back onto the road and drove
off at a high rate of speed. (See id. at 9-10). The officer turned around
and pursued Appellant before stopping him shortly thereafter. (See id. at
10).
Therefore, we conclude that the trial court properly found that Chief
Krieg had an objectively reasonable suspicion that a violation of the Vehicle
Code had occurred to justify his traffic stop of Appellant. See 75 Pa.C.S.A. §
6308(b); Ornelas, supra at 696; Chase, supra at 112; Anthony, supra
at 1185. Hence, the argument that the court erred in denying Appellant’s
motion to suppress would lack merit.4
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4
We also conclude that Appellant’s attempt to distinguish the cases of
Chase, supra and Commonwealth v. Sands, 887 A.2d 261 (Pa. Super.
2005), to be legally unpersuasive. Although Appellant is correct that both
(Footnote Continued Next Page)
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In his second issue, Appellant claims that the court erred in denying
his motion to suppress because Officer Krieg lacked probable cause to arrest
him for suspicion of DUI. (See Appellant’s Brief, at 15-19). We disagree.
It is well-settled that:
[a]n officer has probable cause to make a warrantless arrest
when the facts and circumstances within the police officer’s
knowledge and of which the officer has reasonably trustworthy
information are sufficient in themselves to warrant a person of
reasonable caution in the belief that an offense has been
committed by the person to be arrested.
Probable cause
justifying a warrantless arrest is determined by the totality of
the circumstances. . . . Furthermore, probable cause does not
involve certainties, but rather the factual and practical
considerations of everyday life on which reasonable and prudent
persons act.
Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (citations
and quotation marks omitted).
In the instant case, Officer Krieg testified first about his extensive
experience investigating DUIs and his observations of people under the
influence of alcohol. (See N.T. Suppression Hearing, 9/07/12, at 6-7, 1416).
Also, when the officer approached Appellant’s vehicle, he smelled
alcohol and he observed that Appellant had blood shot eyes and slurred
speech. (See id. at 10-11). Further, Appellant told Chief Krieg that he had
been drinking that night and was on his way from the Trail Inn, a local bar.
(Footnote Continued)
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cases contained facts that were different than those presented in this case,
(see Appellant’s Brief, at 9, 14), they stood for the proposition that a traffic
stop only requires reasonable suspicion. See Chase, supra at 111; Sands,
supra at 265.
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(See id. at 11, 37). Appellant lost his balance while taking the one leg test
and took a preliminary breathalyzer that revealed a blood alcohol content of
0.119 percent. (See id. at 11-12).
Based on the foregoing, and our independent review of the record, we
conclude that the trial court properly found that Chief Krieg had probable
cause to arrest Appellant and denied his suppression motion. See Simmen,
supra at 817; Anthony, supra at 1185.
Appellant’s second issue lacks
merit.5
In Appellant’s third issue, he claims that the evidence was insufficient
to support his conviction of DUI under 75 Pa.C.S.A. § 3802(a)(1).
(See
Appellant’s Brief, at 20-21). This argument is waived and would not merit
relief.
Our standard of review for a sufficiency of the evidence challenge 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
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5
Moreover, we are not legally persuaded by Appellant’s argument that Chief
Krieg lacked probable cause to arrest him because he failed to administer
the field sobriety tests in accordance with the National Highway Traffic
Safety Administration (NHTSA) guidelines and to perform a second
breathalyzer test. Appellant provides absolutely no citation to authority in
support of these allegations. (See Appellant’s Brief, at 18-19); see also
Pa.R.A.P. 2119(a)-(b). Accordingly, this argument is waived.
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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. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation
omitted).
First, we observe that Appellant provides absolutely no pertinent
citation to support his claim that “[t]he sole evidence presented by the
Commonwealth[,] . . . that Appellant ‘went off the roadway’, [and] then
‘took off at a high rate of speed’ . . . is insufficient evidence to prove beyond
a reasonable doubt that [he] was incapable of safely driving the vehicle[.]”
(Appellant’s Brief, at 20); see also Pa.R.A.P. 2119(a), (b). Therefore, this
issue is waived. Moreover, it would not merit relief.
In this issue, Appellant only challenges his conviction under section
3802(a)(1) of the Vehicle Code. (See Appellant’s Brief, at 20-21). Section
3802(a)(1) provides: “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
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driving, operating or being in actual physical control of the movement of the
vehicle.” 75 Pa.C.S.A. § 3802(a)(1).
Our Supreme Court has ruled that the Commonwealth can use
circumstantial evidence to prove a defendant was incapable of safely driving
due to intoxication.
See Commonwealth v. Segida, 985 A.2d 871, 880
(Pa. 2009) (concluding circumstantial evidence that appellant’s vehicle was
off side of road, he smelled of alcohol, failed field sobriety tests, and had
illegal blood alcohol content sufficient to prove DUI).
Here, the Commonwealth established that, at 1:00 A.M., Chief Krieg
observed Appellant swerve his vehicle onto a lawn and then “[take] off at a
high rate of speed.” (N.T. Trial, 12/13/12, at 21; see id. at 20-21). The
road was wide enough for two vehicles to pass each other and there were no
adverse conditions.
(See id. at 21).
The officer approached Appellant’s
vehicle, where he smelled alcohol, saw Appellant’s bloodshot eyes, and
heard his slurred speech. (See id. at 22, 24). Appellant admitted he had
been at a bar. (See id. at 24). Also, he failed a field sobriety test and a
blood alcohol test revealed that his blood alcohol content was 0.123 percent.
(See id. at 25-27, 57).
Based on these facts, we conclude that the court properly found that
the evidence was sufficient to prove that Appellant violated section
3802(a)(1) of the Vehicle Code.
See Segida, supra at 880; Tarrach,
supra at 345. This issue would not merit relief.
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In his fourth issue, Appellant claims that the evidence to support his
conviction under section 3802(b) of the Vehicle Code was insufficient
because “the Commonwealth failed to prove beyond a reasonable doubt that
the blood being tested was Appellant’s blood.”
(Appellant’s Brief, at 21).
This issue lacks merit.
Preliminarily, we note that Appellant improperly phrases his issue as a
sufficiency challenge. We have long-held that:
While the Commonwealth bears the burden of
demonstrating some reasonable connection between the
proferred exhibits and the true evidence, it need not establish
the sanctity of its exhibits beyond a moral certainty.
The
Commonwealth need not produce every individual who came into
contact with an item of evidence, nor must it eliminate every
hypothetical possibility of tampering.
A complete chain of
custody is not required so long as the Commonwealth’s
evidence, direct and circumstantial, establishes a reasonable
inference that the identity and condition of the exhibits have
remained the same from the time they were first received until
the time of trial. Any gaps in testimony regarding the chain
of custody go to the weight to be given the testimony[.]
Commonwealth v. Cugnini, 452 A.2d 1064, 1065 (Pa. Super. 1982)
(citations omitted and emphasis added).
Therefore, this issue is waived.
See Pa.R.A.P. 2116(a).
Moreover, as acknowledged by Appellant, even if properly phrased as
a weight of the evidence challenge, the claim would not merit relief. 6 (See
Appellant’s Brief, at 23 (noting that the trial court’s verdict “was probably
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6
Appellant properly preserved this issue by raising it with the trial court in
his post-sentence motions. (See Post[-]Sentence Motions, 2/19/13, at 3-4).
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not so contrary to the evidence as to shock one’s sense of justice.
Additionally, Appellant is constrained to acknowledge that the trial court
probably did not abuse its discretion by ruling on the weight claim.”)). We
would agree.
Our standard of review of a challenge to the weight of the evidence is
well-settled:
[T]he weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence and
to determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Moreno, 14 A.3d 133, 135 (Pa. Super. 2011), appeal
denied, 44 A.3d 1161 (Pa. 2012) (citation omitted).
Here, Karen Sherman, the medical technician who withdrew the blood,
testified regarding the standard procedures for a blood withdrawal, including
checking the identity of the person giving it and marking the blood tubes
with the individual’s name, and the technician’s initials.
12/13/12, at 7-8, 11).
(See N.T. Trial,
Chief Krieg testified that he took custody of the
blood samples and brought them back to the station where they remained
sealed, logged into evidence, and placed in a refrigerator until they were
sent to a laboratory for testing.
(See id. at 29-30).
The Commonwealth
then moved to admit the property record of this sample as Exhibit 2. (See
id. at 30).
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Forensic scientist, William Kupstas, tested the blood in the lab and
testified regarding the security procedures undertaken to ensure the identity
of the sample. (See id. at 53). He also stated that Appellant’s sample was
sealed properly.
(See id. at 54).
Mr. Kruptas received them from the
evidence technician in a sealed box as identified by Chief Krieg and they had
the same incident number and Appellant’s name. (See id. at 29-30, 55-56,
58).
Based on the foregoing, we conclude that the trial court properly found
that the Commonwealth established that the blood taken from Appellant was
the same sample tested by the lab. See Moreno, supra at 135. Hence,
Appellant’s issue, even if he had framed it properly in his statement of
questions, would have lacked merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2013
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