Commonwealth v. DiPanfilo, -- A.2d --, No. 2180 EDA 2009

A Superior Court panel held that expert testimony is not necessary to sustain a conviction under 75 Pa.C.S. 3802(d)(2), where a hospital urine screen revealed the presence of cocaine metabolites and opiates.  A citizen called police after hearing a crash outside of his residence at approximately 5: 30 a.m.  When police arrived, the driver, later identified by the citizen, had walked away.  The citizen gave a description of the driver and explained to the responding officer that the driver had appeared "disoriented."  When the responding officer encountered an individual meeting the description she had been given, the individual fled and was apprehended after falling down some stairs.  At this point the officer, Adrienne Duffy of the Lansdale Police Department, noted that Dipanfilo appeared to be under the influence of a controlled substance to the extent that his ability to operate a motor vehicle was impaired.  Because of injuries sustained during the fall, field sobriety tests were not performed.  An ambulance was called, and Dipanfilo was taken to a hospital for treatment of his injuries.

At the hospital, DiPanfilo was asked to submit a blood test, but he refused.  As part of routine treatment, however, the urine screen was performed.  Pipanfilo was convicted by a jury of violating Section 3802(d)(2), and he appealed.  On appeal, he challenged the sufficiency of the Commonwealth's evidence, and cited the recent Superior Court holding in Commonwealth v. Griffith, 985 A.2d 230 (Pa. Super. 2009), for the proposition that expert testimony was required to link the presence of drugs with any impairment observed by the Commonwealth's witnesses.  In distinguishing Griffith, the panel found that its holding applies only to prescription drugs, and also found that DiPanfilo's refusal to submit to testing must be taken into account.  Essentially, the panel refused to reward a driver for refusing blood testing after having taken illegal controlled substances.  The conviction was affirmed.
Here is the link:   http://www.aopc.org/OpPosting/Superior/out/A05018_10.pdf 

Commonwealth v. Muhammed, -- A.2d -- 2010 WL 1039448 (Pa. Super. 2010)

A Superior Court panel held that a police officer who observed an inoperable center-mounted brake light had reasonable suspicion to suspect a violation of the Vehicle Code, and thus effect a traffic stop.  Officer James Koenig was on patrol in with his partner Lawrence Tevelson in Philadelphia when they observed a Chevrolet Caprice driven by Kareem Muhammed.  The Caprice's side brake lights illuminated in the officers' view, and the center window-mounted light remained dark.  Based solely upon this observation, they initiated a traffic stop.  Upon their approach, the officers observed an open bag containing 200 CDs and DVDs, which they recognized as contraband because of the number of duplicate discs contained within the bag. 

Muhammed was charged under 18 Pa.C.S. 4116 (Copying; recording devices) and 18 Pa.C.S. 4119 (Trademark counterfeiting).  He filed a motion to suppress the evidence obtained during the traffic stop, claiming that the officers had no reasonable suspicion to stop the Caprice.  The motion was denied, and at bench trial he was convicted of both charges.  On appeal, he again challenged the legality of the traffic stop.  The panel analyzed the Vehicle Code and the PA Code's regulations, before concluding that, under 67 Pa.Code175.80(9), "A center-mounted brake light is not required equipment under the MVC and regulations but, if it is originally equipped or installed, then it must operate properly and safely."  (slip op. p. 9)  Consequently, the panel found that when the officers observed what they believed to be an originally-equipped center-mounted brake light malfunctioning, they had reasonable suspicion that the car was in violation of 75 Pa.C.S. 4303 (General lighting requirements).  The trial court's denial of Muhammed's suppression motion was affirmed.

Nevertheless, because of the recent Pennsylvania Supreme Court decision in Commonwealth v. Omar, 981 A.2d 179 (Pa. 2009), the panel remanded Muhammed's case for resentencing.  In Omar, which was decided during the pendency of this appeal, the Supreme Court found 18 Pa.C.S. 4119 to be unconstitutional.  As such, Muhammed's conviction on that count was vacated.
Here's the link: http://www.aopc.org/OpPosting/Superior/out/A32029_09.pdf

Commonwealth v. Dagutis, PICS Case No. 10-1608 (C.P. Bucks March 22, 2010) Waite, J., (14 pages).

COURTS OF COMMON PLEAS

MOTOR VEHICLES

Driving Under the Influence - Blood Alcohol Content - Expert Testimony - Sixth Amendment

Defendant was convicted of driving under the influence (DUI). At trial, the commonwealth offered testimony from a consultant toxicologist for a private, for-profit testing laboratory. The toxicologist was not the analyst who performed the testing that originally led to the charges against defendant.

Defendant filed post-trial motions. The trial court granted those motions, and the commonwealth appealed.

The court recommended that its decision be affirmed. While the trial court was considering those motions, the U.S. Supreme Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The Melendez court determined that the prosecution may not introduce certificates such as affidavits of laboratory analysts that provide that materials seized by police were controlled substances without calling the analyst who conducted the analytical procedures. Doing otherwise would violate the defendant's Sixth Amendment right to confrontation, the court concluded.

"The Supreme Court in Melendez now holds that the Sixth Amendment is not activated merely by the nature of it being testimonial or not but whether the witness is one who is testifying 'against' the defendant's interest even if the witness is not 'hostile' in the general sense to the defendant," the court observed.

The expert presented by the commonwealth regarding defendant's blood alcohol content had reviewed data regarding defendant; he was not the analyst who performed the original testing that led to the charges against defendant, the court observed.

The court concluded that, without the consultant's testimony, the remaining evidence was inconclusive and did not have the reliability needed to establish the elements of DUI. Accordingly, the court determined that the commonwealth did not sustain its burden of proof beyond a reasonable doubt and the court reversed defendant's conviction.

Commonwealth v. Moury, PICS Case No. 10-1545 (Pa. Super. Mar. 24, 2010) Gantman, J. (28 pages).

SUPERIOR COURT

CRIMINAL LAW

Firearm Offenses - D.U.I. - Sentencing - Post-Arrest Silence - Accomplice Liability

Finding no merit in defendant-appellant's objections, the court affirmed the judgment of sentence entered following defendant-appellant's jury trial convictions for inter alia, firearm offenses - including discharge of a firearm into an occupied structure - DUI, and reckless endangerment charges.

The charges all stemmed from a nighttime shooting spree wherein appellant and an accomplice drunkenly drove the roads of Chester County, firing guns out of their vehicle into road signs and homes. The co-defendant accomplice pled guilty and was sentenced pursuant to a negotiated plea agreement. Appellant was offered the same plea deal, but rejected it in favor of a jury trial.

Appellant argued first that the court was biased and expressed ill-will toward him through the harsh sentence, because he had exercised his right to a jury trial. He claimed that he deserved a lighter sentence than his co-defendant because he was the accomplice in their crimes, had no prior record, and showed genuine remorse. Because the co-defendant accepted the plea deal, appellant felt that the court was angry at him for making the court proceed to trial.

Appellant conceded that his minimum sentence was within the standard range of the sentencing guidelines. Nevertheless, he claimed that his crime should not have been assigned a gravity score of 10 because he did not intentionally fire a gun into an occupied structure. He argued that he was no more than reckless, and not a violent offender. He also objected to the court's imposition of consecutive sentences for each count of discharge of a firearm into an occupied structure.

An appellant challenging the discretionary aspects of sentencing is not entitled to review as of right. He must invoke the court's jurisdiction by satisfying a four-part test, as set forth in Commonwealth v. Evans. Addressing the most relevant factors here, the court first noted that appellant did not object at sentencing or in his post-sentence motion to the court's alleged reliance on appellant's decision to stand trial rather than accept a plea deal. Therefore, the court deemed waived appellant's challenge to his sentence on that basis.

Moreover, nothing in the sentencing hearing transcript indicated that the court improperly relied upon defendant's decision to stand trial. The court relied only on permissible factors in sentencing appellant: the evidence adduced at trial, testimony during the sentencing hearing and the PSI. Therefore, the court did not penalize appellant for exercising his right to stand trial.

Additionally, appellant provided no relevant legal citations to support his claim that the Sentencing Commission planned or meant for courts to mitigate the sentence of an individual convicted of discharging a firearm into an occupied structure based on the level of the defendant's mens rea. Appellant was actually sentenced at the low end of the standard range of the guidelines, and gave the court no legitimate reason to call that sentence into question.

Finally, as presented, the court found that the judge's alleged failure to consider mitigating factors in the decision to impose consecutive sentences did not raise a substantial question.

The court next addressed and rejected appellant's argument that the district attorney called the police officer as a witness solely to elicit testimony regarding appellant's decision to exercise his right to counsel immediately after his arrest, which prejudiced the jury against him. He added that such prejudice was not cured by the judge's attempt to cure through cautionary instructions, and the only appropriate remedy was a mistrial.

The court noted that the police officer, in answer to a question from the commonwealth, had testified that appellant invoked his post-arrest right to remain silent. However, the commonwealth did not seek to exploit the reference; nor did it appear that the question was asked for any improper purpose. The judge immediately gave curative instructions to the jury, and the court concluded that they were sufficient to cure any prejudice. Finally, the court noted that, at trial, uncontroverted and properly-admitted evidence of defendant's guilt was adduced, such that a single reference to his post-arrest silence constituted harmless error. Therefore, a mistrial was unnecessary.

Lastly, the court addressed and rejected appellant's contention that the judge placed too much emphasis on accomplice liability in the jury instructions and incorrectly summarized and defined the term. Because appellant did not object when the court charged the jury or when the court responded to the jury's question about accomplice liability, this contention was deemed waived.

Department of Transportation v. Roop, PICS Case No. 10-1530 (C.P. Montgomery March 22, 2010), Rossanese, J., (4 pages).

COURTS OF COMMON PLEAS

MOTOR VEHICLES

Licensing - Revocation - Driver's License Compact

Pennsylvania's Department of Transportation had the discretion to render defendant ineligible for a driver's license where his operating privileges were permanently revoked in another state. Affirmed.

The state Department of Transportation (DOT) revoked defendant's operating privileges in 1992 for three convictions for driving under the influence (DUI) and two driving under suspension violations. Defendant moved to Florida and was licensed there, but his operating privileges were permanently revoked in that state.

Defendant returned to Pennsylvania, and DOT issued him a preliminary license in 2003. Defendant reapplied for a learner's permit in 2008, but DOT later notified him that he was not eligible for a Pennsylvania license.

The court denied defendant's appeal of DOT's decision. Under 75 Pa.C.S. § 1503(a)(1), DOT shall not issue or renew a driver's license for any person whose operating privilege is suspended or revoked in Pennsylvania or any other state.

The court rejected defendant's argument that the Driver's License Compact created an exception to § 1503's absolute prohibition on licensing. To the contrary, the compact gives DOT the discretion to issue a license if it is otherwise permitted by law to do so. "Pennsylvania has simply chosen not to grant the discretion allowed by the Driver's License Compact," the court concluded.

IN ADDITION:

Last week, the Commonwealth Court published an opinion dealing with the question of reasonable grounds to request chemical testing under 75 Pa.C.S. 1547, where prescription drugs may be the cause of intoxication.  In Marone v. PA DOT, Bureau of Driver Licensing, --A.2d--, 2010 WL 724858, (Pa. Cmwlth. 2010), a previously unpublished decision, the court found that an officer did have reasonable grounds to request testing where a driver was passed out in the driver's seat of a running car with its lights on in a McDonald's parking lot.  The driver (who the same officer had encountered earlier while responding to a complaint of disorderly conduct at a Walgreen's pharmacy) was slumped over the center console with his face inside a bag of food.  Three prescription pill bottles containing unidentified pills were also in the front of the car.  Upon contact with the driver, the officer observed, "no odor of alcohol...but as (the driver) was revived, he became very belligerent, drifted in and out of consciousness, had trouble standing, had bloodshot eyes and very slurred speech, and was spitting out half-eaten food from his mouth."

Eventually the driver was placed under arrest for suspected Drug DUI, and taken to a hospital where he refused to submit to a blood test.  He appealed the resulting license suspension, claiming the police did not have reasonable grounds to request testing.  The trial court agreed, finding that the driver had not appeared intoxicated during the earlier encounter with police, and that it was equally likely that the driver became intoxicated after parking his car and taking the pills.  PennDOT appealed this decision to the Commonwealth Court.

In reversing the trial court, the Commonwealth Court noted that "the existence of another reasonable explanation does not vitiate an officer's reasonable grounds."  The Commonwealth Court also pointed out that the officer had observed the driver at another location an hour and a half before seeing him passed out in the McDonald's lot.  In a final passage, the Court stated that "it is irrelevant

that Licensee's intoxication may have been caused in whole or in part by prescription medication rather than by alcohol or an illegal substance, as driving under the influence may be found when the intoxication is caused by prescription medication."  

Editor's Note: This license suspension case may be helpful to prosecutors who deal with Drug DUI.  While we should encourage officers to contact a DRE (Drug Recognition Expert)whenever possible in these situations, this case appears to support the proposition that an officer without specialized training may nonetheless request chemical testing where prescription drug DUI is suspected.  Interestingly, the Court cites Commonwealth v. Griffith, 985 A.2d 230, (Pa. Super. 2009) when stating that intoxication by prescription medication may support a drug DUI charge.  Griffith (petition for review pending in the Pa. Supreme Court) held that expert testimony was necessary to prove prescription drug DUI.
Here is the link:  http://www.aopc.org/OpPosting/Cwealth/out/826CD09_3-3-10.pdf