Com. v. Blackie, G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEORGE BEVAN BLACKIE, JR. :
:
Appellant : No. 1486 WDA 2017
Appeal from the Judgment of Sentence September 22, 2017
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0002038-2016
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MAY 01, 2018
George Bevan Blackie, Jr. (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted him of one count of driving
under the influence (DUI), as well as the summary offenses of careless driving,
following too closely, and driving at an unsafe speed (summary offenses).1
Upon review, we affirm.
The trial court made the following detailed findings of fact. See Trial
Court Opinion, 9/12/17, at 2-9. On Wednesday, August 24, 2016, at
approximately 9:15 p.m., Appellant was involved in a two vehicle accident
with Christopher Gallagher (victim) at the intersection of Dunnings Highway
and Bedford Street in Greenfield Township. The victim was stopped at a red
light and, as the light changed, Appellant rear-ended him. Following the
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1 75 Pa.C.S.A. §§ 3802(a)(1)(general impairment), 3714(a), 3310(a), 3361.
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collision, the victim exited his van and asked Appellant to contact the police;
Appellant declined to do so, and the victim called the police himself. During
the exchange, the victim observed that Appellant had slurred speech and was
behaving strangely.
Thereafter, Assistant Police Chief Nathan Claycomb of the Freedom
Township Police Department arrived at the scene and observed damage to
both vehicles. Assistant Chief Claycomb detected that Appellant “smelled a
little bit of alcohol” and noticed unopened alcoholic beverages in Appellant’s
vehicle.2
Officer Tyler Grigg of the Greenfield Township Police Department
responded to the scene next, and opined, based upon his experience and
training, that Appellant had caused the accident by striking the rear of the
victim’s vehicle. Officer Grigg observed signs of impairment: the smell of
alcohol coming from Appellant’s vehicle, that Appellant was slow in getting out
his license, and that Appellant needed to be asked twice to provide his
registration and proof of insurance. Officer Grigg, who was trained and
certified in conducting field sobriety tests, had Appellant perform the “walk
and turn” and the “one-leg stand” tests; Appellant failed both field sobriety
tests. Appellant indicated to Officer Grigg that his prior back surgery and leg
injury would make it difficult for him to perform those tests. Officer Grigg
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2Appellant later testified that he had only consumed approximately half of a
beer that afternoon and that at the time of the accident, he was traveling back
home from Dilly’s Bar, where he had picked up food for his wife and a six-
pack of beer to go.
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provided Appellant with a portable breath test, but Appellant was unsuccessful
in registering a result.
Suspecting that Appellant may have been using drugs or pain
medication, Assistant Chief Claycomb suggested to Officer Grigg that they
conduct a 10-panel drug screen, which would require the chemical testing of
Appellant’s blood. When asked whether he was on medication, Appellant
replied that he had taken a sleep aid approximately one to two hours earlier.
Officer Grigg then read the revised DL-26B form3 regarding Appellant’s rights
relative to blood testing, at which time Appellant acknowledged that he
understood the instructions, signed the form and consented to a chemical test
of his blood. While traveling to the hospital for testing, Appellant made an
unsolicited comment that he was a federal whistleblower and that he had been
set up. After arriving at the hospital, Appellant changed his mind, and
indicated that he would no longer submit to the chemical blood testing and
would simply go to jail. Officer Grigg told Appellant that he was not going to
jail and re-read the DL-26B form to him. Appellant refused consent to the
blood test. Thereafter, Appellant was charged with the aforementioned
offenses.
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3 The Pennsylvania Department of Transportation created Form DL–26B in
response to the United States Supreme Court’s decision in Birchfield v.
North Dakota, 136 S. Ct. 2160 (2016), which held that state laws imposing
criminal penalties on motorists for refusing to submit to a blood test are
unconstitutional.
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Appellant initially filed a habeas petition seeking dismissal of the
charges, which the trial court denied. Appellant proceeded to a non-jury trial
on August 31, 2017, after which the trial court rendered its guilty verdicts.
On September 22, 2017, the trial court sentenced Appellant to the mandatory
minimum sentence of a $300 fine and six months’ probation for DUI, in
addition to $25 fines for each summary offense. On September 29, 2017,
Appellant filed a motion for judgment of acquittal, which the trial court denied
on October 3, 2017. Appellant filed this timely appeal. Both the trial court
and Appellant have complied with Rule 1925(b) of the Pennsylvania Rules of
Appellate Procedure.
Appellant raises the following issue for our review:
I. Whether there was sufficient evidence presented to convict
[Appellant] of 75 Pa.C.S.A. § 3802(a)(1).
Appellant’s Brief at 4.
With a non-jury trial, we review the record to ensure the findings of fact
are supported by competent evidence and that the trial court did not commit
an error of law. See Commonwealth v. Decker, 698 A.2d 99, 100 (Pa.
Super. 1997), appeal denied, 705 A.2d 1304 (Pa. 1998). Our standard of
review for challenges to the sufficiency of the evidence is well-settled:
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
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accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant’s guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Teems, 74 A.3d 142, 144–45 (Pa. Super. 2013), appeal
denied, 79 A.3d 1098 (Pa. 2013) (internal citations omitted).
Section 3802(a)(1) states: “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 driving, operating or being in actual physical control of the movement
of the vehicle.” 75 Pa.C.S.A. § 3802(a)(1). General impairment under this
section is an “at the time of driving” offense, where the Commonwealth must
“prove the following elements: the accused was driving, operating, or in actual
physical control of the movement of a vehicle during the time when he or she
was rendered incapable of safely doing so due to the consumption of alcohol.”
Teems, 74 A.3d at 145 (quoting Commonwealth v. Segida, 985 A.2d 871,
879 (Pa. 2009)). The Commonwealth may satisfy its burden of proof by wholly
circumstantial evidence. Segida, 985 A.2d at 880.
Instantly, Appellant does not dispute that he was driving his vehicle
unsafely. Rather, he argues that while “there was some evidence of
intoxication” there was insufficient evidence to support his DUI conviction
under Section 3802(a)(1) because “there was no evidence of intoxication from
alcohol alone.” Appellant’s Brief at 9. Appellant relies on his admitted use of
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sleeping medication prior to the accident, contending that he “was only
charged with driving under the influence of alcohol not a combination of
alcohol and drugs” and that “[t]he evidence in this case was equally consistent
if not more consistent with the [Appellant] being under a combination of drug
and alcohol not just alcohol.” Id. at 7. We are not persuaded by this
argument.
The trial court stated that it found “the testimony of each
Commonwealth witness . . . to be credible in all respects.” Trial Court
Opinion, 9/12/17, at 12. Further, the trial court cited the following factual
findings in support of Appellant’s conviction:
[Appellant] was clearly at fault for the rear-end collision;
[Appellant] did not call 911 when requested to do so by [the
victim]; [the victim’s] observation that [Appellant] was acting
strangely; the officers smelling the odor of alcohol on [Appellant]
at the scene; [Appellant] appearing to be incoherent and
struggling to retrieve his insurance and registration; [Appellant]
failing the field sobriety tests; Assistant Chief Claycomb’s
suggestion that Officer Grigg obtain a 10-panel screen due to the
suspicion that [Appellant] may be under the influence of some
drug or medication; [Appellant’s] refusal to submit to a blood
draw; and [Appellant’s] unsolicited comment while en route to the
hospital that he is a “federal whistleblower” and that he had “just
been setup[.”]
Id.
When reviewing the evidence in the light most favorable to the
Commonwealth, we conclude that it was sufficient to support the trial court’s
guilty verdict. The testimony adduced at trial demonstrates that Appellant
was operating a vehicle, and his collision with the victim created a reasonable
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inference that he was unable to drive in a safe manner. While Appellant
testified to consuming only half of a beer, the other witness testimony – of
Appellant acting strangely, smelling of alcohol, delaying his production of
driver documentation, failing sobriety tests, and refusing to submit to a blood
test – support the trial court’s finding of impairment as required under Section
3802(a)(1). See, e.g., Commonwealth v. Stanley, 629 A.2d 940, 943 (Pa.
Super. 1993) (“These observations [alcohol on the breath and glassy,
bloodshot eyes], combined with the officer’s testimony that he saw appellant
run a red light, clearly are sufficient to convict on the charge of DUI/incapable
of safe driving.”).
Finding no merit to Appellant’s sufficiency claim, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
P.J.E. Ford Elliott joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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