Com. v. Olszewski, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JEFFREY OLSZEWSKI
Appellant No. 1416 MDA 2014
Appeal from the Judgment of Sentence of June 3, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0003040-2011
BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED JUNE 15, 2015
Jeffrey Olszewski appeals his June 3, 2014 judgment of sentence,
which was imposed after a panel of this Court vacated one of Olszewski’s
convictions for driving under the influence of alcohol (“DUI”) and remanded
this case to the trial court for resentencing on a remaining DUI count. See
Commonwealth v. Olszewski, No. 802 MDA 2012, slip op. at 1-2, 7 (Pa.
Super. Dec. 20, 2012). After Olszewski was resentenced, he filed timely
post-sentence motions, in which he challenged, inter alia, the sufficiency of
the evidence to prove him guilty of the remaining DUI count. The learned
trial court concluded that this issue already had been resolved in Olszewski’s
first appeal, and declined to review it a second time. For the reasons stated
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*
Retired Senior Judge assigned to the Superior Court.
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herein, we disagree with the trial court. Nonetheless, because a challenge to
the sufficiency of the evidence is a question of law, we review Olszewski’s
sufficiency claim. Finding that claim to be unsuccessful, we affirm.
In Olszewski’s initial appeal to this Court, we quoted the trial court’s
verbal recitation of the court’s finding of facts as follows:
On July 2nd, 2011, shortly after midnight, Officer Michael
Marshall was dispatched to an accident scene involving a
motorcycle which was being operated by [Olszewski]. The
officer came about the scene, noticed injuries to [Olszewski] and
advised [Olszewski] that an ambulance was on its way.
[Olszewski] said he would refuse medical treatment. The officer
cancelled the ambulance. Thereafter, the officer noticed the
more severe injuries to [Olszewski] and reordered the
ambulance to take [Olszewski] from the scene for medical
treatment. The delay in the arrival of the ambulance was caused
by the initial refusal of [Olszewski] to accept medical treatment.
The officer noted a strong odor of intoxicating beverage on
[Olszewski’s] breath, [] and disoriented and confused behavior.
[Olszewski] was transported to the Geisinger Wyoming Valley
Hospital. The officer remained at the scene to clear the accident
scene. [T]here were other officers available to the officer to
assist in clearing the accident scene, however, the amount of
time the officer spent at the accident scene was reasonable
under the circumstances.
The officer proceeded to Geisinger Wyoming Valley Hospital and
requested that [Olszewski] submit to a blood alcohol test and
[Olszewski] agreed. The officer read Mr. Olszewski the so-called
O’Connell Warnings and determined that Mr. Olszewski was
unable to execute the form and indicated that the form could not
be completed for that reason. The officer was reasonable in this
regard given the medical treatment. The officer immediately
requested that the blood be drawn for Mr. Olszewski, that the
request was within the two hours required and [] within a
reasonable time when which to have his request complied with –
with the two hours. However, the necessity of medical
treatment and the availability of a phlebotomist, which are not
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within the control of the officer, delayed the test beyond the two
hour time limit.
Id. at 3-4. The prior panel noted that Olszewski’s blood eventually was
drawn two hours and forty minutes after he operated the motorcycle. Id. at
4. Olszewski’s blood alcohol content was reported as .198. Id. at 6.
Olszewski was charged with two counts of DUI: (1) DUI—highest rate
of alcohol (75 Pa.C.S. § 3802(c)), and (2) DUI—general impairment (75
Pa.C.S. § 3802(a)). Olszewski also was charged with careless driving (75
Pa.C.S. § 3714) and driving without a valid motorcycle license (75 Pa.C.S. §
1512). Prior to trial, Olszewski filed a motion to suppress the results of the
blood test, in which he argued that the results were inadmissible because
the test was taken over two hours after he drove the motorcycle and
because the Commonwealth could not demonstrate good cause for the
delay. See 75 Pa.C.S. § 3802(g)(1).1 The trial court denied the motion.
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1
Section 3802(g) provides, in pertinent part, as follows:
Notwithstanding the provisions of subsection (a), (b), (c), (e), or
(f), where alcohol or controlled substance concentration in an
individual’s blood or breath is an element of the offense,
evidence of such alcohol or controlled substance concentration
more than two hours after the individual has driven, operated or
been in actual physical control of the movement of the vehicle is
sufficient to establish that the element of the offense under the
following circumstances:
(1) where the Commonwealth shows good cause explaining
why the chemical test sample could not be obtained within
two hours.
75 Pa.C.S. § 3802(g)(1).
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Olszewski proceeded to a stipulated bench trial, after which the trial court
found Olszewski guilty on both DUI counts and also on the count for driving
without a valid motorcycle license. The trial court acquitted Olszewski of
careless driving.
Olszewski was sentenced to twelve months’ intermediate punishment,
including ninety days of house arrest. Olszewski also was assessed fines
and court costs. Olszewski then filed an appeal with this Court. In that
appeal, Olszewski argued that the trial court erred in denying his
suppression motion, and that the blood alcohol content evidence should
have been ruled inadmissible. We agreed with him. Concluding that the
blood draw occurred after two hours had elapsed from when he drove the
motorcycle and that the Commonwealth could not demonstrate good cause
for the delay, we vacated his DUI—highest rate of alcohol conviction, and
remanded for resentencing on the DUI—general impairment and driving
without a valid motorcycle license counts. Olszewski, supra, at 4-7.2
On June 3, 2014, the trial court resentenced Olszewski on the DUI—
general impairment count to six months’ intermediate punishment, thirty
days of which were ordered to be served as house arrest. Olszewski also
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2
The Commonwealth filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania. On March 5, 2014, that Court denied the
petition. Commonwealth v. Olszewski, No. 591 MAL 2013 (Pa. March 5,
2014) (per curiam).
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was ordered to pay fines and costs for the DUI—general impairment and
driving without a valid motorcycle license convictions.
On June 13, 2014, Olszewski filed a post-sentence motion in which he
argued that, without the blood alcohol content evidence that was suppressed
by this Court, the evidence also was insufficient to convict him of DUI—
general impairment. Olszewski maintained, inter alia, that the trial court, at
least in part, relied upon the inadmissible evidence in rendering its verdict
for DUI—general impairment. On July 23, 2014, the trial court denied the
post-sentence motion. The court held that the arguments raised by
Olszewski in his post-sentence motion were decided in his first appeal by this
Court, or otherwise were waived because Olszewski did not raise those
issues in his first appeal. See Memorandum and Order, 7/23/2014, at 1.
On August 21, 2014, Olszewski filed a notice of appeal. The trial court
did not order, and Olszewski did not file, a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Moreover, the trial
court did not file an opinion pursuant to Pa.R.A.P. 1925(a).
Olszewski raises two questions for our consideration:
1. Whether, following the suppression of his blood alcohol test
by the Superior Court, [Olszewski] was entitled to review by
the trial court of the sufficiency of the remaining evidence to
support his conviction for violating 75 Pa.C.S. § 3802(a)(1),
and whether it was a violation of his due process rights for
the trial court to fail to conduct such a review in denying his
post-sentence motion?
2. Whether, following the suppression of his blood alcohol test
by the Superior Court, sufficient other evidence remained in
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the record to support [Olszewski’s] conviction for violating 75
Pa.C.S. § 3802(a)(1) beyond a reasonable doubt?
Brief for Olszewski at 2.
As is evident from Olszewski’s first stated issue, the initial inquiry that
we must confront is whether the trial court erred in concluding that we had
already resolved the issue. That is to say, was the issue Olszewski raised in
his post-sentence motion addressed in his first appeal? Did Olszewski waive
the issue by failing to raise it in the first appeal?
We agree with Olszewski, and we hold that the trial court erred in both
instances. First, we decline to accept the trial court’s assertion that
Olszewski’s sufficiency of the evidence challenge was decided by this Court
in Olszewski’s first appeal. We have reviewed our prior memorandum
decision thoroughly.3 Nowhere in that decision did the prior panel address
the sufficiency of the evidence regarding the DUI—general impairment
conviction, with or without the inadmissible evidence. The panel addressed
only Olszewski’s claim that the blood alcohol evidence was inadmissible.
Second, the trial court also incorrectly found that Olszewski did not
raise the issue in the first appeal. As a general matter, after a remand from
this Court, if a later appeal ensues, “[o]n that appeal, the party may also
raise any issues presented but undecided in the instant appeal.”
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3
A copy of the memorandum is in the certified record. Thus, we have
no trouble concluding that the trial court had a copy of that memorandum
when it concluded that this Court had ruled upon Olszewski’s claim.
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Commonwealth v. Moyer, 447 A.2d 1034, 1037 (Pa. Super. 1982) (citing
Commonwealth v. Twiggs, 331 A.2d 440 (Pa. 1975)). The
Commonwealth concedes that Olszewski raised his sufficiency claim in the
initial appeal. See Brief for Commonwealth at 6. Thus, the claim was
presented.4 We simply did not rule upon that claim.
Nonetheless, even though we agree with Olszewski that the trial court
erred, he is not entitled to any form of relief for those errors. Challenges to
the sufficiency of the evidence are questions of law, subject to plenary
review. Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super.
2014), appeal denied, 109 A.3d 678 (Pa. 2015) (citing Commonwealth v.
Perreault, 930 A.2d 553, 558 (Pa. Super. 2007)). As such, even though
the trial court did not address the issue, our standard of review permits us
to review the claim, especially because both parties have addressed the
merits of the issue.
When reviewing a sufficiency challenge:
we must determine whether, viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, together
with all reasonable inferences therefrom, the trier of fact could
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4
The Commonwealth contends that, because Olszewski’s argument in
the first appeal was short and unsupported by applicable case law, it should
be deemed waived, and, therefore, not actually presented for purposes of
this appeal. See Brief for Commonwealth at 6-8. We disagree. The above
stated standard only requires that the argument be presented in the prior
appeal. In this case, it was. That it may have been inadequately supported
at that time does not change the fact that it was, in fact, presented in that
appeal.
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have found that each and every element of the crimes charged
was established beyond a reasonable doubt. We may not weigh
the evidence and substitute our judgment for the fact-finder. To
sustain a conviction, however, the facts and circumstances which
the Commonwealth must prove must be such that every
essential element of the crime is established beyond a
reasonable doubt. Lastly, the finder of fact may believe all,
some or none of a witness’s testimony.
Commonwealth v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011) (citations
omitted).
Olszewski was convicted of DUI—general impairment pursuant to 75
Pa.C.S. § 3802(a)(1), which provides as follows:
(a) General impairment.—
(1) 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. § 3802(a)(1). “[S]ubsection 3802(a)(1) is an ‘at the time of
driving’ offense, requiring that the Commonwealth 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.”
Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009). In Segida, the
Pennsylvania Supreme Court explained the types of evidence that may be
offered by the Commonwealth to prove a person guilty under subsection
3802(a)(1):
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Section 3802(a)(1), like its predecessor [statute], is a general
provision and provides no specific restraint upon the
Commonwealth in the manner in which it may prove that an
accused operated a vehicle under the influence of alcohol to a
degree which rendered him incapable of safe driving. . . . The
types of evidence that the Commonwealth may proffer in a
subsection 3802(a)(1) prosecution include but are not limited to,
the following: the offender’s actions and behavior, including
manner of driving and ability to pass field sobriety tests;
demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs
of intoxication; odor of alcohol, and slurred speech. Blood
alcohol level may be added to this list, although it is not
necessary and the two hour time limit for measuring blood
alcohol level does not apply. Blood alcohol level is admissible in
a subsection 3801(a)(1) case only insofar as it is relevant to and
probative of the accused’s ability to drive safely at the time he or
she was driving. The weight to be assigned these various types
of evidence presents a question for the fact-finder, who may rely
on his or her experience, common sense, and/or expert
testimony. Regardless of the type of evidence that the
Commonwealth proffers to support its case, the focus of
subsection 3802(a)(1) remains on the inability of the individual
to drive safely due to consumption of alcohol-not on a particular
blood alcohol level.
Id. at 879.
Instantly, we must consider whether the evidence could enable the
fact finder to convict Olszewski of DUI—general impairment. Olszewski’s
principal argument is that the evidence for DUI—general impairment is
insufficient without the blood alcohol content evidence. Olszewski
apparently believes that our holding in the prior appeal extended to his
conviction for DUI—general impairment. However, as our Supreme Court
noted in Segida, “the two hour time limit for measuring blood alcohol level
does not apply” to DUI—general impairment cases. Id. In other words, the
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two-hour time limit that we found to have been violated in Olszewski’s prior
appeal only applied to his DUI—highest rate of alcohol conviction. Thus,
Olszewski’s belief that the evidence should be evaluated for sufficiency
purposes as to his DUI—general impairment conviction without the blood
alcohol evidence is incorrect.
Even though we are not required to ignore the blood alcohol content
evidence, we nonetheless conclude that the evidence was sufficient to
sustain his DUI—general impairment conviction even without that evidence.
The remaining evidence, viewed in the light most favorable to the
Commonwealth, is as follows. On July 2, 2011, at approximately 12:07
a.m., Officer Marshall responded to a motorcycle accident on Crestwood
Road in Luzerne County. When he arrived, he observed Olszewski standing
near a rolled over motorcycle. Olszewski had one shoe on and one shoe off
at the time, and was bleeding from his nose. Olszewski admitted to driving
the motorcycle at the time of the accident. Olszewski stated that, while
driving, he had veered off the road for some unknown reason. While Officer
Marshall was talking to Olszewski, he noticed blood draining from
Olszewski’s leg and saturating his sock.
While talking to Olszewski, Officer Marshall detected a strong odor of
alcohol coming from Olszewski. The officer also noted that Olszewski had
glassy eyes and acted very confused about what had occurred. Officer
Marshall declined to subject Olszewski to field sobriety tests due to the
injury to his leg and the confusion Olszewski was exhibiting. Having made
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over two hundred DUI arrests in his career, Officer Marshall opined that
Olszewski was unable to safely operate a motor vehicle.
Olszewski focuses his argument upon the facts that Officer Marshall
did not testify that Olszewski was unsteady or unstable on his feet, and that
Officer Marshall did not observe Olszewski slurring his speech in any way.
These facts, in addition to the absence of field sobriety tests, demonstrate
the insufficiency of the evidence, according to Olszewski. We readily
acknowledge that the evidence in this case is not overwhelming. Olszewski
correctly points out that some of the traditional elements of a DUI
prosecution, i.e. slurred speech and field sobriety tests, are absent in this
case. However, as alluded to in Segida, there is no checklist of facts that
the Commonwealth must complete to prove someone guilty of DUI—general
impairment. Rather, we must assess the totality of the circumstances, and
the various points of proof that were in fact offered by the Commonwealth,
and view that quantum of evidence in the light most favorable to the
Commonwealth. Having done so, and even if we give no attention
whatsoever to the blood alcohol content evidence, we conclude that the
evidence was sufficient to enable a fact finder to convict Olszewski of DUI—
general impairment. The evidence demonstrates that, after having
consumed an alcoholic beverage, Olszewski drove the motorcycle. He
admitted not only to driving the motorcycle, but also to driving it off the
road, although he could not state that what caused him to drive off the road.
These facts, combined with his glassy eyes and confusion, were sufficient to
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enable a fact finder to conclude that Olszewski drove the motorcycle after
imbibing alcohol and that the consumption of alcohol rendered him incapable
of safely operating the motorcycle. Consequently, the evidence was
sufficient to prove him guilty of DUI—general impairment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/15/2015
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