Commonwealth v. McKellick

24 A.3d 982, 2011 Pa. Super. 127, 2011 Pa. Super. LEXIS 1088

Opinions

OPINION BY

STEVENS, J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Monroe County on March 4, 2010, at which time Appellant Michael Timothy McKellick (hereinafter “Appellant”) was sentenced to seventy-two (72) hours to six (6) months in prison, fines and costs, a license suspension for a period of one year and a requirement to complete the Alcohol Highway Safety Program. Upon a review of the record, we affirm the judgment of sentence.

In her Opinion in Support of Order Pursuant to Pa.R.A.P. 1925(a), the learned trial judge Margherita Patti Worthington aptly set forth the relevant facts and procedural history of the within matter as follows:

This matter is before us on [Appellant’s] appeal of his conviction for Driving Under the Influence of Alcohol-Highest Rate of Alcohol, 75 Pa.C.S.A. § 3802(c). On November 25, 2008, a Criminal Complaint was filed charging [Appellant] with one count each of the following crimes: Driving Under the Influence of Alcohol-General Impairment (75 Pa.C.S.A. § 3802(a)(1)); Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)); Driving Without Valid License (75 Pa. C.S.A. § 1501(a)); Failure to Drive Within Single Lane of Traffic (75 Pa. C.S.A. § 3309(1)); Failure to Use Vehicle Restraint System (75 Pa.C.S.A. § 4581(a)(2)).

[Appellant] waived his preliminary hearing on April 8, 2009[,] and the charges were bound over to this [c]ourt. On June 2, 2009, [Appellant] waived formal arraignment, and a Criminal Information was filed on June 8, 2009[,] charging [Appellant] with Driving Under the Influence of Alcohol-General Impairment (75 Pa.C.S.A. § 3802(a)(1)), and Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa. C.S.A. § 3802(c)). [Appellant] filed a timely Petition for Habeas Corpus Relief which was denied by this Court on December 14, 2009.

Footnotes

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After a bench trial held on February 8, 2010, [Appellant] was found guilty of Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)) and not guilty of Driving Under the Influence of Alchohol-General Impairment (75 Pa.C.S.A. § 3802(a)(1)). [Appellant] was sentenced on March 4, 2010, to a period of 72 hours to six months!’] incarceration, a $1250.00 fine, and costs. Additionally, [Appellant] was sentenced to complete the Alcohol Highway Safety Program and undergo a license suspension for a period of one year.

[Appellant] filed a timely appeal on April 1, 2010, and a 1925(b) Statement on April 27, 2010. [Appellant] contends that this [c]ourt erred in convicting him without allowing him the opportunity to confront the affiant and arresting officer, in violation of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 [158 L.Ed.2d 177] (2004); that the evidence presented was not sufficient to sustain a conviction of Driving Under the Influence; and that the recording on the dash-cam was not sufficient to identify [Appellant] for purposes of conviction. The facts in this case are as follows:

At approximately 1:12 A.M., on or about November 12, 2008, Pennsylvania State Trooper Joshua Miller was travel ing south in a marked patrol vehicle on SR209. [Affidavit, 11/25/08]². Trooper Miller observed a white Chevrolet Sil-verado in front' of him sway slightly to the right side of the road, its passenger side tires crossing the white fog line. Id. Trooper Miller alleges that the Sil-verado then swerved sharply onto the right shoulder and came to a stop without using its turn signal. Id. When Trooper Miller approached the vehicle, he asked the driver, [Appellant] why he had swerved off the road. Id. [Appellant] replied that the truck had “stalled out.” Id. [Appellant] produced a photo identification card, but was unable to provide Trooper Miller with the vehicle’s registration and proof of financial responsibility, stating that the truck belonged to a friend. Id.

Trooper Miller alleged that he detected a strong odor of alcoholic beverage emanating from [Appellant] and noted that [Appellant’s] eyes were “blood shot and glassy.” Id. Trooper Miller asked [Appellant] how much he had to drink and [Appellant] replied that he had consumed two beers. Id. In response to a request by Trooper Miller, [Appellant] exited the vehicle, stumbling as he did so. Id. Trooper Miller then proceeded to conduct Standardized Field Sobriety Tests on [Appellant], to which he exhibited signs of intoxication. Id. A preliminary breathalyzer test indicated that [Appellant] had a blood alcohol content of 0.19% Id. Trooper Miller then placed [Appellant] under arrest and transported him to Pocono Medical Center where blood was drawn at 1:58 A.M. Id. A report received from Pocono Medical Center on November 17, 2008[,] indicated that [Appellant's] blood alcohol content at the time of testing was 0.23%. Id.

Following [Appellant’s] arrest but pri- or to this matter proceeding to trial, Trooper Miller was tragically killed in the line of duty.³ There are no surviving witnesses to the encounter between Trooper Miller and [Appellant] other than [Appellant] himself. However, Trooper Miller’s patrol car was equipped with a dashboard-mounted video camera that activated when he turned on his emergency lights. Thus, the encounter between [Appellant] and Trooper Miller was visually recorded from the patrol vehicle’s dashboard. The video depicts [Appellant] performing the field sobriety tests, but does not include audio. [Commonwealth’s Exhibit 2].

Trial Court Opinion, filed June 11, 2010, at 1-3.

In his brief,¹ Appellant presents the following Statement of Questions Presented:

A. Whether the trial court erred and abused its discretion in denying the Appellant the right to confront his accuser?

B. Whether the trial court erred and abused its discretion in that the evidence presented against him was not sufficient to sustain a conviction of driving under the influence?

C. Whether the trial court erred and abused its discretion in that the identification of [Appellant] was not sufficient to definitely ascertain his identity on the dash-cam of the state police vehicle for the purposes of conviction and all other evidence concerning his identity was hearsay which should not have been considered by the court?

Brief for Appellant at 14. We will consider these issues in turn.

Admission of evidence is within the sound discretion of the trial court, and this Court will find the trial court abused its discretion only where it is revealed in the record that the court did not apply the law in reaching its judgment or exercised manifestly unreasonable judgment or judgment that is the result of partiality, prejudice, bias, or ill will. In addition, it is the exclusive province of the finder of fact to determine the weight of relevant evidence. Commonwealth v. Mitchell, 883 A.2d 1096, 1110-1111 (Pa.Super.2005) (citation omitted), appeal denied, 587 Pa. 688, 897 A.2d 454 (2006).

Whether a defendant has been denied his right to confront a witness is a question of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Atkinson, 987 A.2d 743 (Pa.Super.2009). In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that the right of confrontation, when the government attempts to introduce testimonial hearsay, requires that the witness who made the statement be unavailable for trial and that the defendant had a prior opportunity to cross-examine that witness. Crawford,, supra. Statements made during police interrogations are testimonial. Id. at 68, 124 S.Ct. 1354. In addition, a “prior opportunity to cross-examine” may be satisfied if there is an opportunity to cross-examine the witness at trial. See Commonwealth v. Charlton, 902 A.2d 554, 560 (Pa.Super.2006).

Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa.Super.2010), appeal denied, — Pa. -, 14 A.3d 826 (Pa. Feb 2, 2011) (emphasis added).

There are three basic types of evidence that are admitted into court: (1) testimonial evidence; (2) documentary evidence; and (3) demonstrative evidence. 2 McCormick on Evidence § 212 (5th ed.1999). Presently, at issue is demonstrative evidence, which is “tendered for the purpose of rendering other evidence more comprehensible to the trier of fact.” Id. As in the admission of any other evidence, a trial court may admit demonstrative evidence whose relevance outweighs any potential prejudicial effect. Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 552 (2002), cert. denied, 540 U.S. 850, 124 S.Ct. 131, 157 L.Ed.2d 92 (2003). The offering party must authenticate such evidence. “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa. R.E. 901(a). Demonstrative evidence may be authenticated by testimony from a witness who has knowledge “that a matter is what it is claimed to be.” Pa. R.E. 901(b)(1). Demonstrative evidence such as photographs, motion pictures, diagrams, and models have long been permitted to be entered into evidence provided that the demonstrative evidence fairly and accurately represents that which it purports to depict. See Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530, 532 (1956).

The overriding principle in determining if any evidence, including demonstrative, should be admitted involves a weighing of the probative value versus prejudicial effect. We have held that the trial court must decide first if the evidence is relevant and, if so, whether its probative value outweighs its prejudicial effect. Commonwealth v. Hawk, 551 Pa. 71, 709 A.2d 373, 376 (1998). This Commonwealth defines relevant evidence as “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa. R.E. 401. Relevant evidence may nevertheless be excluded “if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.

Commonwealth v. Serge, 586 Pa. 671, 682-683, 896 A.2d 1170, 1177 (2006), certiorari denied, 549 U.S. 920, 127 S.Ct. 275, 166 L.Ed.2d 211 (2006).

In a case wherein only the audio portion of the videotape had been challenged, a panel of this Court determined that the verbalizations thereon were testimonial and compelled, thus violating the appellant’s Fifth Amendment rights. Importantly, the panel did note that:

[t]he privilege against self-incrimination ordinarily presents no barrier to admission of demonstrative or physical evidence such as a video tape. A visual recording of a suspect’s legally compelled actions, though perhaps highly incriminating, would not, in general, constitute communicative or testimonial evidence. It therefore would not be protected by the privilege against self-incrimination. See Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966) (courts have usually held that the protection of the privilege does not extend to compulsory fingerprinting, photographs, measurements, writing or speaking for identification, appearing in court, assuming a particular stance, walking or making a particular gesture because the privilege is not violated by compulsion which makes a suspect the source of physical evidence).

Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541, 544 n. 3 (1987), appeal denied, 520 Pa. 581, 549 A.2d 914 (1988) (italics in original).

Citing the Sixth Amendment of the United States Constitution and Article I § 9 of the Pennsylvania Constitution, along with cases interpreting the Sixth Amendment, and denying that he was, in fact, the individual depicted on the video tape, Appellant avers that had the videotape not been admitted into evidence, there would have been no admissible blood evidence, and, therefore, no conviction. Brief for Appellant at 23. Appellant reasons that as Trooper Miller obviously did not appear at trial or testify during the pendency of the case about the events of November 12, 2008, Appellant never had an opportunity to cross-examine him regarding those events. Appellant further asserts the testimony of Corporal Thomas Hothouse, who testified regarding the contents of the video, “demonstrates the need for witness confrontation and the damage that was done to the Appellant by its denial to him” because the Corporal was not present at the scene and merely opines what he believes happened at that time. Id. at 24-25. Appellant also avers the videotape should not have been admitted into evidence at trial pursuant to Pa.R.E. 901.²

Appellant also relies upon Melendez-Diaz v. Massachusetts, — U.S.-, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) in support of his arguments. Therein, the Supreme Court held that the admission of certificates of analysis, which the prosecution had offered in a drug trial and indicated that the material seized by police and connected to the defendant was a quantity of cocaine, violated the defendant’s Sixth Amendment right to confront the witnesses against him. Specifically, the Court found that the certificates of analysis were “quite plainly” affidavits and thus fell within the “core class of testimonial statements” covered by the Confrontation Clause. Melendez-Diaz, 129 S.Ct. at 2532 (internal citation omitted). The Court further found that, under Crawford v. Washington, supra, the analysts’ affidavits were testimonial; thus, the analysts were witnesses for the purposes of the Sixth Amendment. Melendez-Diaz, 129 S.Ct. at 2532. Therefore, unless the analysts were unavailable to testify at trial and the defendant had been afforded a prior opportunity to cross-examine them, the Confrontation Clause required that he “be confronted with” the analysts at trial. Id. Indeed, the Court specifically stated that it “[did] not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Melendez-Diaz, 129 S.Ct. at 2532 n. 1. See also U.S. v. Forstell, 656 F.Supp.2d 578, 581 (E.D.Va.2009) citing Larkin v. Yates, 2009 WL 2049991, n. 2 (C.D.Cal.2009) (noting that Melendez-Diaz “explicitly rejected the suggestion that the Confrontation Clause required that every person whose testimony might be relevant to the authenticity of sample or accuracy of a testing device appear in person as part of the prosecution’s case”).

In the instant matter, Appellant acknowledges the videotape had no audio; thus, in light of Serge, and Conway, supra, it falls within the category of the non-testimonial exception carved out by the Supreme Court in Crawford v. Washington, supra, and, therefore, the Commonwealth was not required to present the testimony of Trooper Miller at trial in order for it to be admissible. Rather, demonstrative evidence may be authenticated by evidence sufficient to show that it is a fair and accurate representation of what it is purported to depict which includes “testimony from a witness who has knowledge ‘that a matter is what it is claimed to be.’ ” Serge, supra, 896 A.2d at 1177 citing Pa.R.E 901(a) and Pa.R.E. 901(b)(1).

At trial, the Commonwealth called Corporal Donald Riehl of the Pennsylvania State Police to testify. Corporal Riehl explained that one of his duties was to act as the mobile video recording officer responsible for downloading videos from the video recording equipment in police vehicles onto disks when a trooper requests the video as a result of a traffic stop. N.T., 1/29/10, at 4-5. Corporal Riehl detailed the manner in which dash cams cap ture footage and the way in which the standard mobile video recording download request form is filled out and utilized. Id. at 5-10. After Corporal Riehl prepared a video, his practice was to have the requesting trooper actually observe the prepared video prior to his securing it in the receiving locker in the evidence room. After the requesting trooper reviewed the disk for accuracy, Corporal Riehl would have him or her sign it in the section that he prepared, and then Corporal Riehl would add his signature underneath the trooper’s. Id. at 12.

The videodisk shown at trial listed an incident number and Trooper Joshua Miller’s name, indicated it was a DUI, and specified the location as State Route 209, north of State Route 402 and the date as November 12, 2008, at 0112 hours. Id. at 11. Corporal Riehl also noted that dash cams are set to automatically begin recording when the emergency lights are activated. Id. at 14.

Corporal Hothouse further testified that as a thirteen-year veteran of the Pennsylvania State Police he participated in more than 400 DUI arrests and served as a Pennsylvania State Police field sobriety test instructor; Appellant had no objection to his qualifications as an expert in this field. Id. at 15, 19. Corporal Hothouse explained that a camera had been mounted in Trooper Miller’s vehicle, as is customary, and that the video introduced by the Commonwealth at trial had been taken on November 12, 2008, at 0157 hours. Id. at 19-20. Over Appellant’s objection, Corporal Hothouse testified as to the contents of the video.³ Specifically, Corporal Hothouse explained the video showed Trooper Miller pulling over behind a white Chevy Silverado with Pa. Registration plate “YPD7567” after which Appellant stepped out and into traffic. Id. at 25, 30. Though he admitted the person on the video resembled him, Appellant objected to Corporal Hothouse’s identification of the individual on the video as Appellant. Id. at 26. Over Appellant’s objection, Corporal Hothouse also described the various field sobriety tests Officer Miller had Appellant perform and the instructions the Officer was likely giving Appellant at the time. Id. at 27-29. The video played while the Corporal narrated which enabled the trial court to observe Appellant’s performance on each of the field sobriety tests and to determine the accuracy of the Corporal’s interpretation of the events unfolding on it.

In light of the aforementioned testimony, we find that the Commonwealth sufficiently authenticated the videotape. Corporals Riehl and Hothouse demonstrated they were persons with knowledge of what the evidence was proclaimed to be, Appellant’s traffic stop, and the trial court, as the finder of fact, was free to believe or disbelieve Corporal Hothouse’s depiction of the events thereon and whether the videotape accurately and fairly represented Trooper Miller’s contact with Appellant on November 12, 2008. Furthermore, no where does Appellant allege that the tape had been fabricated, altered or manipulated in any way. As such, we find the trial court did not err when relying upon Conway, supra, to determine that the videotape in this case did not implicate Crawford v. Washington, supra, and, therefore, that the introduction of the video at trial did not violate Appellant’s confrontation rights. Trial Court Opinion, filed June 11, 2010, at 9.

Appellant next contends the evidence presented against him was not sufficient to sustain a conviction of Driving Under the Influence.

As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.

Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence. Significantly, we may not substitute our judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed. So long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant’s crimes beyond a reasonable doubt, his convictions will be upheld. 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. DiPanfilo, 993 A.2d 1262, 1264 (Pa.Super.2010).

Under 75 Pa.C.S.A. § 3802(c), “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.”

In his Petition for Writ of Habeas Corpus, Appellant asserted that the Commonwealth had failed to establish a prima facie case for the DUI crimes with which he had been charged. Following a hearing, the suppression court, in an Opinion filed on December 14, 2009, determined that the Commonwealth had presented sufficient evidence to establish a prima facie case of Driving Under the Influence of Alcohol-Highest Rate of Alcohol 75 Pa. C.S.A. § 3802(c). Thus, Appellant’s argument the trial court erred and abused its discretion in convicting him is moot in light of the fact that the existence of probable cause was established during Appellant’s habeas corpus challenge.

Notwithstanding, we note that the trial court had the opportunity to view Appellant’s behavior on the video tape during trial, and in his Affidavit of Probable Cause Trooper Miller indicated the events leading up to his stopping of Appellant and that Appellant’s preliminary breathalyzer test (“PBT”) indicated he had a blood alcohol content of 0.19%.⁴ Furthermore, the Commonwealth introduced the testimony of Ms. Ildiko Sowinski, the phlebotomist who drew Appellant’s blood at Pocono Medical Center. Ms. Sowinski testified regarding the chain of custody of the blood that she drew from Appellant at 1:58 a.m. on November 12, 2008, less than one hour after Appellant last operated his vehicle. She also explained that she had obtained Appellant’s name, address and driver’s license number from his driver’s license. The blood alcohol content laboratory test performed at the Pocono Medical Center indicated his blood alcohol level was 0.28%. N.T. 1/29/10, at 44-46.

The Commonwealth also presented the testimony of Mr. Jason Perry, the chemist employed as the chemistry/ immunology supervisor at Pocono Medical Center to oversee the entire operation of chemistry and immunology at the hospital, which includes ethanol analysis. Id. at 48-49. Mr. Perry, who tested Appellant’s blood sample, detailed the process he typically utilized in testing blood for the presence of alcohol and explained that he prepared documents to submit to the law enforcement agency in the within matter. Id. at 50-51. His testing revealed Appellant’s blood alcohol content to be .23 percent. Id. at 52.

After viewing the video tape and listening to the testimony of officers and medical personnel, the trial court determined sufficient evidence had been presented to convict Appellant of 75 Pa.C.S.A. § 3802(c). Specifically, in its Opinion, the trial court stated the following:

When the videotape is considered in conjunction with the other evidence presented by the Commonwealth, the evidence is enough to convict [Appellant] of Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)). When viewed together, the testimony of Corporal Hothouse, Ms. Sowinski, and Mr. Perry, along with [Appellant’s] blood alcohol, toxicology, and chemical laboratory report, demonstrates that [Appellant]: (1) consumed alcohol shortly before driving; (2) drove his truck on a public road; and (3) had a blood alcohol content of .23 percent within two hours of driving. The tape is therefore not the only evidence against [Appellant].

We find that the contents of the videotape of the encounter between Trooper Miller and [Appellant] coupled with the results of the laboratory blood test provide ample evidence to support a conviction. We also find that the videotape of the incident was properly authenticated, and was properly introduced as evidence that established [Appellant’s] identity.

Trial Court Opinion filed June 11, 2010, at 12-13. We find the trial court did not abuse its discretion making this finding, and therefore, this argument is without merit.

Lastly, Appellant asserts the evidence presented at trial was insufficient to establish his identity. In support of this claim he argues Corporal Hothouse had no foundation in personal knowledge or experience from which to identify Appellant in court as the individual on the videotape obtained from Trooper Miller’s dash cam and that he would have identified “[a]ny similar looking person sitting in [Appellant’s] chair ... based merely on his presence in the courtroom, because this was the only foundation that the Corporal had for making such identification.” Brief for Appellant at 36. Appellant also asserts the Commonwealth’s admission into evidence under the business record exception to the hearsay rule of a processing photo taken by Trooper Miller on the night of the arrest was also in error. Appellant opines a business record is not admissible as a hearsay exception in a criminal matter where it is used to prove an element of the offense and that it was not authenticated as per Pa.R.E. 901. Brief for Appellant at 36.

Appellant fails to mention in his brief that Ms. Sowinski testified that she obtained Appellant’s name, address and license number from his driver’s license, and that prior to drawing the blood from any individual she identifies the individual from his or her driver’s license, the police officer and also asks the individual his or her name. N.T., 1/29/10, at 46. In addition, the trial court had the opportunity to discern the individual on the video and Appellant. As we discussed, supra, the finder of fact properly weighs and determines the credibility of witnesses. We find that considered in its totality, the evidence presented by the Commonwealth was sufficient for the trial court to identify Appellant.

Judgment of sentence affirmed.

DONOHUE, J. files a dissenting opinion.

1 In the Omnibus Pretrial Hearing, President Judge Ronald E. Vican held that the Commonwealth had sufficiently authenticated the videotape through the testimony of Corporal Hothouse, and that the Commonwealth had presented enough evidence to establish a prima facie case of Driving Under the Influence of Alcohol-General Impairment (75 Pa.C.S.A. § 3802(a)(1)), and Driving Under the Influence of Alcohol-Highest Rate of Alcohol (75 Pa.C.S.A. § 3802(c)). In addition to the reasoning set forth in this Opinion, we incorporate President Judge Vican’s holding and rationale.