Com. v. Kurtz, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSHUA ALLEN KURTZ
Appellant No. 1727 MDA 2014
Appeal from the Judgment of Sentence May 28, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0001034-2013
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 06, 2015
Joshua Allen Kurtz appeals from the judgment of sentence imposed in
the Court of Common Pleas of Lebanon County after he was convicted of one
count of driving under the influence (DUI) - general impairment,1 one count
of DUI - highest rate of alcohol,2 and several summary offenses. Upon
careful review, we affirm.
The trial court has set forth the facts of this matter as follows:
On March 24, 2013, Ronald Ream (herein “Mr. Ream”) called
Pennsylvania State Police (herein “PSP”) to report a possible
accident on West Franklin Avenue, Jackson Township, Lebanon
County, Pennsylvania. Mr. Ream is a resident on West Franklin
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802(a)(1).
2
75 Pa.C.S.A. § 3802(c).
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Avenue and was awakened by what he believed to be the sound
of a car accident outside around two o’clock in the morning. Mr.
Ream looked out his window and saw the aftermath of the
accident. The initial call was placed to PSP at approximately
2:17 a.m.
At approximately 2:19 a.m. Trooper Christopher Graf (herein
“Trooper Graf”) was dispatched to the scene. Trooper Graf
testified that he arrived on the scene at approximately 2:28 a.m.
When he arrived, there were fire and emergency medical
personnel present, but there was no driver present. Trooper
Graf observed a black Pontiac Grand Prix on the wrong side of
the roadway. It appeared that the Pontiac Grand Prix had been
traveling east on West Franklin Avenue, crossed into the
opposing traffic lane and hit a car which was parked on the
opposite side facing west (on the north side of the road). The
parked car was struck with sufficient force to cause it to be
moved from the road up onto the steep, hilly lawn of a
neighboring yard.
Trooper Graf testified that [Kurtz] arrived on the scene with his
parents between 2:33 and 2:38 a.m. When he spoke with
[Kurtz], Trooper Graf smelled a strong odor of alcohol and
observed that [Kurtz’s] speech was slurred, he repeated his
answers, his eyes were bloodshot and glassy, and that he had
difficulty explaining to Trooper Graf what had happened. [Kurtz]
told Trooper Graf that he had been driving the Pontiac Grand
Prix at the time the accident occurred and admitted that he had
been drinking alcohol at a friend’s house that evening prior to
the accident.
Trooper Graf arrested [Kurtz] for suspicion of DUI. [Kurtz] was
transported to Good Samaritan Hospital (herein “GSH”) to have
his blood drawn. Lauren Stroh, a phlebotomist at GSH, drew
[Kurtz’s] blood at 3:50 a.m. [Kurtz’s] BAC was .201%.
Trial Court Opinion, 9/18/14, at 2-3.
On March 25, 2014, following a bench trial, Kurtz was found guilty of
the aforementioned offenses. The court sentenced Kurtz on May 28, 2014 to
six months’ intermediate punishment and a fine of one thousand dollars
($1,000) plus additional fines for the summary offenses. Kurtz filed post-
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sentence motions, which the court denied. He then filed a timely notice of
appeal to this Court, as well as a court-ordered statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Kurtz raises the following issues for our review:
A. Did the trial court err in denying [Kurtz’s] motion for
judgment of acquittal as to count two – DUI: general
impairment 75 Pa.C.S.A. § 3802(a)(1) where the
Commonwealth’s evidence failed to establish that [Kurtz]
was under the influence of alcohol to a degree which
impaired his ability to safely drive, operate, or be in actual
physical control of a vehicle at the time he last did so?
B. Did the trial court err in denying [Kurtz’s] motion for
judgment of acquittal as to count one – DUI: highest rate
of alcohol 75 Pa.C.S.A. § 3802(c) where the
Commonwealth’s evidence failed to establish that [Kurtz]
consumed enough alcohol prior to driving such that his
blood alcohol concentration was 0.16% or higher within
two hours of driving?
Appellant’s Brief, at 6.
We review a sufficiency of the evidence claim under the following
standard:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
that of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
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by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. 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. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)
(brackets omitted).
Kurtz first challenges the sufficiency of the evidence to establish his
general impairment DUI conviction. Kurtz asserts that the Commonwealth
failed to prove that he was incapable of safely driving due to alcohol
intoxication at the time of the accident, as the police found him about thirty
minutes after the accident. Kurtz also claims that the Commonwealth failed
to prove that he did not consume alcohol after the accident.
Pennsylvania’s DUI statute for general impairment provides, in
relevant part, as follows:
§ 3802. Driving under influence of alcohol or controlled
substance
(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.A. § 3802(a)(1).
“The Commonwealth may sustain its burden of proof by wholly
circumstantial evidence.” Commonwealth v. Segida, 985 A.2d 871, 880
(Pa. 2009) (citations omitted).
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The types of evidence that the Commonwealth may proffer in a
[DUI] 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 [DUI] 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. “Furthermore, the accident itself constitutes evidence that [the
defendant] drove when he was incapable of doing so safely.” Id. at 880.
Here, Kurtz admitted to Trooper Graf that he was driving the car that
caused the accident. N.T. Trial, 3/25/14, at 12. Trooper Graf testified that
he smelled a strong alcoholic odor emanating from Kurtz, his eyes were
bloodshot, and he slurred his speech. Id. at 11. As in Segida, the accident
itself also constitutes evidence that Kurtz was incapable of safely driving due
to alcohol intoxication at the time of the accident.
Kurtz attempts to point out a discrepancy in Trooper Graf’s testimony
as to whether Kurtz had told Trooper Graf whether he had consumed any
alcohol after the accident. However, the record reflects that Kurtz told
Trooper Graf that he had not consumed any alcohol from the time of the
accident to the time of his interaction with the police. Id. at 12, 25.
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Moreover, Segida, a factually similar case, held that the Commonwealth
need not “prove that an accused did not drink any alcohol after the
accident.” Segida, 985 A.2d at 884 n. 6. Accordingly, viewing the evidence
in the light most favorable to the Commonwealth as verdict winner, we
agree with the trial court that there was sufficient evidence to support a
guilty verdict for the general impairment DUI offense.
Kurtz next challenges the sufficiency of the evidence to establish his
highest rate of alcohol DUI conviction. The arguments Kurtz makes for this
claim mirror those made in his first challenge above, which have already
been addressed. Additionally, Kurtz asserts that the Commonwealth failed
to prove that Kurtz’s BAC was 0.16% or higher within two hours of having
driven. The only evidence of when Kurtz last drove the car is the testimony
from Mr. Reams that he woke up because of the accident at 2:00 a.m.
Pennsylvania’s DUI statute for highest rate of alcohol provides, in
relevant part, as follows:
§ 3802. Driving under influence of alcohol or controlled
substance
***
(c) Highest rate of alcohol.-- 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.
75 Pa.C.S.A. § 3802(b).
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The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Commonwealth v. Lambert,
795 A.2d 1010, 1013 (Pa. Super. 2002). “Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the evidence is
so weak and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances.” Id.Here, the record shows that Mr. Reams woke up because of the
accident and his wife told him that it was 2:00 a.m. N.T. Trial, 5/25/14, at
32. The record also shows that Kurtz’s blood was drawn at 3:50 a.m. and
his BAC was 0.201%. Id. at 15. This timeline establishes that Kurtz’s BAC
was over the 0.16% limit within two hours after he had last driven his car.
We have concluded above that the evidence was sufficient to prove that
Kurtz was driving while intoxicated and that he did not drink any alcohol
after the crash. Therefore, the evidence was sufficient to allow the fact
finder to convict Kurtz of this offense as well.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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