Com. v. Joseph, A. ( 2014 )

J-A19006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY R. JOSEPH,
Appellant No. 1438 WDA 2013
Appeal from the Judgment of Sentence Entered August 2, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000958-2013
BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 5, 2014
Appellant, Anthony R. Joseph, appeals from the judgment of sentence
of 3-6 days’ incarceration and 6 months’ non-reporting probation, imposed
following his conviction for driving under the influence of a controlled
substance pursuant to 75 Pa.C.S. § 3802(d)(2). Appellant contends that the
trial court erred when it assessed the credibility of a witness who did not
testify after invoking her privilege against self-incrimination. After careful
review, we affirm.
The trial court summarized the facts adduced at trial as follows:
In the early afternoon, on September 26, 2012, Jenna Carter
had exited her parked vehicle and was on the steps to her home
when she heard a loud bang and turned to see the [Appellant’s]
car hit her vehicle. [Appellant’s] vehicle did not stop and
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*
Former Justice specially assigned to the Superior Court.
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continued down the hill. She called out [for him] to stop and
[Appellant] backed up to Ms. Carter, almost hitting her vehicle
again. He exited the vehicle and appeared to be under the
influence. His speech was slurred and he stumbled, almost
falling, when he tried to walk up the steps to her home. He
inquired whether Ms. Carter was okay and appeared to be
unaware that she was not in the vehicle at the time of impact.
[Appellant] apologized and exchanged insurance information
with her.
Officer Horak of the Ross Township Police was the first to
arrive on the scene of the accident at approximately 12:35 p.m.
Ms. Carter explained to Officer Horak that [Appellant’s] vehicle
had hit her car. Officer Horak approached [Appellant] as he
leaned against his car. [Appellant] tried to stand up and
stumbled, catching himself against the car. He explained to
Officer Horak that he had a minor accident by hitting Ms.
Carter’s car and nobody was injured. Officer Horak believed
[Appellant] was under the influence of some type of substance.
Officer Horak observed that [Appellant’s] eyes were glassy and
bloodshot, his speech was very slow and slurred. Officer Horak
also noted that [Appellant] was very sleepy and could not keep
his balance, continually falling over and raising himself on the
car. [Officer Horak] asked [Appellant] if he had anything to
drink today, to which he replied no. [Appellant] stated that he
was sick and took Motrin and cough syrup.
Officer Sean Stafiej arrived on the scene from Ross
Township Police about five (5) minutes later. Officer Stafiej was
informed by Officer Horak that he believed that [Appellant] was
under the influence of drugs or alcohol. Officer Stafiej testified
that [Appellant’s] clothes were mussed, he smelled of vomit, and
he was nodding off unable to keep his eyes open. [Appellant]
denied any alcohol consumption and told the officer that he had
taken a lot of cold medicine because he was sick. [Appellant]
appeared sleepy and sluggish and kept closing his eyes and
nodding off. [Appellant] agreed to perform field sobriety tests
and the tests were demonstrated by Officer Stafiej. During the
walk-and-turn test, [Appellant] did not touch heel to toe on any
of the steps, [he] used his arms to maintain his balance[,] and
[he] did an improper turn. On the one leg stand test [Appellant]
put his foot down in six seconds, hopped on one foot to maintain
his balance, and used his arms to maintain his balance.
[Appellant] failed the field-sobriety tests. Based on his
observations Officer Stafiej formed the opinion that [Appellant]
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was under the influence of a controlled substance and was
unable to operate a motor vehicle safely.
[Appellant] was transported to Passavant Hospital and
agreed to provide a blood sample. During this transportation,
[Appellant] was having extreme difficulty staying awake.
Jennifer Janssen, Assistant Chief Toxicologist [at the]
Allegheny County Office of the Medical Examiner, Forensic
Science Laboratory Division[,] testified as an expert in Forensic
Toxicology. … [She testified regarding] the crime lab report[,]
[which indicated the presence of] Zolpidem in the blood at a
level of 67 nanograms per m[L] …. The level detected in
[Appellant’s] blood … was within the therapeutic range.
Zolpidem is better known as Ambien and is used to promote
sleep and is prescribed for the treatment of insomnia. Its
desired effect is drowsiness and sedation. Other side effects
associated with the use of Ambien [are] slurred speech, slowed
reflexes, disorientation, fatigue and lethargy. She further
testified that the manufacturer indicates that this drug should
not be used prior to driving. Zolpidem (Ambien) is a schedule IV
drug and has a relatively short half[-]life, in the range of 1.4 to
4.5 hours with an average of 2.5 hours.
Also present in the blood sample was Dextromethorphan[,]
an antitussive-type medication that is found in many over-the-
counter preparations, such as Robitussin. The level that was
detected in this case was 62 nanograms per mL. The level that
has been associated with impaired driving is greater than 100
nanograms per mL.
Ms. Janssen testified that she would be unable to separate
the side effects of the drugs and that the presence of Ambien by
itself would be impairing. In fact, the drowsiness aspect of the
two drugs would be additive. It was her opinion[,] to a scientific
degree of certainty[, that Appellant] would have been impaired.
Trial Court Opinion (TCO), 12/13/13, at 2-5 (internal citations and footnotes
omitted).
The Commonwealth charged Appellant by criminal information with
two counts of driving under the influence of a controlled substance, 75
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Pa.C.S. § 3802(d)(1) (Count 1) and 75 Pa.C.S. § 3802(d)(2) (Count 2).
Appellant’s non-jury trial was held on August 2, 2013. During the course of
the trial, Count 1 was withdrawn. At its conclusion, Appellant was found
guilty of Count 2 (hereinafter, “DUI offense”). He was sentenced the same
day as noted above. He did not file a post-sentence motion.
Appellant filed a timely notice of appeal on September 3, 2013.1
Appellant complied when instructed to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal, and the trial court issued its Rule 1925(a)
opinion on December 13, 2013. He now presents the following question for
our review:
Whether the trial court committed error necessitating a new trial
by adjudging [Appellant] guilty after an on the record recitation
that his defense was not credible, when his defense’s credibility
could not be weighed without hearing the testimony of Alice
Petrovich, who invoked her privilege against self-incrimination,
and refused to testify, which testimony was excluded by the trial
judge[?]
Appellant’s Brief at 2.
As a threshold matter, we must determine the nature of Appellant’s
claim in order to assess whether it was preserved below and, if so, the
appropriate standard of review to apply. The Commonwealth asserts that
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1
September 2, 2013, a Monday, fell on a public holiday (Labor Day). Thus,
although Appellant filed his notice of appeal on September 3, 2013, 32 days
after the trial court sentence him, it was still timely. See 1 Pa.C.S. § 1908
(stating that when computing statutory time periods where the last day of
the time period being calculated falls “on Saturday or Sunday, or on any day
made a legal holiday …, such day shall be omitted from the computation”).
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Appellant is presenting a challenge to the weight of the evidence, and the
trial court addressed Appellant’s issue as such in its Rule 1925(a) opinion.
Appellant disagrees with this characterization, and instead articulates his
claim as trial court error. We need not resolve this dispute because, under
either view, we conclude that Appellant failed to adequately preserve the
claim for our review.
Appellant attempted to establish the affirmative defense of involuntary
intoxication during his trial. “To that end, he sought to call his
girlfriend/former girlfriend Alice Petrovich to the stand to inquire whether
she had ‘spiked’ [his] tea with Ambien.” TCO, at 5. However, “Ms.
Petrovich, present with counsel, asserted her right against self[-
]incrimination.” Id. Subsequently, Appellant testified that “[h]e had been
suffering from a flu[-]like illness and Ms. Petrovich was ‘taking care’ of him
and was giving him chicken soup, hot totties (tea with whiskey) and orange
juice. He testified that he has never willingly taken any Ambien or any
sleeping pill.” Id. at 7-8. The defense then introduced voicemails left by
Petrovich on Appellant’s phone in the weeks following his arrest to support
his affirmative defense theory of involuntary intoxication. The messages
were summarized by the trial court as follows:
The defendant identified the caller as Ms. Petrovich and the
dates of the messages were October 10, 2012 and October 17,
2012. Message 1 — “I hope they don't detect any kind of
sleeping pills in your bloodstream or anything other than what
you had taken. Bye.” Message 2 — “Just thought you might be
interested in what I gave you that night. If not, let me know.
Bye.” Message 3 – “Do you want your police report, copy of
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your police report? I can give it to you in your mailbox. Please
let me know if you want the name of the drug let me know.
Bye.” Message 4 — “If you want, I'd like to tell you the name of
the pills that I gave you. You ought to know them. You should
want to know them. Anyway let me know. Bye.”
Id. at 7.
Appellant now disputes “the trial court’s discounting his defense of
involuntary intoxication because the trial court – after permitting Petrovich’s
blanket invocation of the Fifth Amendment – finds no credibility in the three
messages left by Petrovich on [Appellant’s] telephone.” Appellant’s Brief at
8. Appellant cites the following statements by the trial court to support his
claim that the trial court had improperly considered the credibility of
Petrovich:
What’s inconsistent to me is you have somebody who,
while admittedly they have a very rough relationship, she’s
caring for him, no concerns. There seems to be no motive.
Other than a while later, a number of weeks later, she calls. She
doesn’t reference the night of the 26th. She says [“]that
night.[”] I don’t know.
The combination with that, along with the testimony from
Ms. Janssen regarding the level of the Ambien with – in
combination with the – what would be the breakdown or the
half-life, the dosage, even if I would go out to that night, I don’t
know that that amount would be left in his system at that time.
So, frankly, I mean, to sum it up, I don’t find that
particular defense credible. I have nothing on which to base that
as a credible claim. And given that the other facts really aren’t
in dispute, I would have to find him guilty on that charge.
Appellant’s Brief, at 8-9 (quoting N.T., 8/2/13, 70-71).
If we assume, as Appellant suggests, that the nature of his claim is
grounded in trial court error, then Appellant was required to preserve such a
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claim with a contemporaneous objection. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal”); see also Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.
Super. 2008) (recognizing that “[e]ven issues of constitutional dimension
cannot be raised for the first time on appeal”). Here, we discern no
objection made by Appellant in the record to the trial court’s credibility
assessment of Petrovich, the voicemails she left on Appellant’s phone, nor
regarding Appellant’s involuntary intoxication defense. Furthermore,
Appellant does not direct our attention to any part of the record wherein
such an objection was lodged. Accordingly, under Appellant’s own theory
regarding the nature of his claim, it has clearly been waived.
Alternatively, both the Commonwealth and the trial court characterize
Appellant’s claim as a challenge to the weight of the evidence.
[A] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
properly preserve the claim will result in waiver, even if the trial
court addresses the issue in its opinion. Commonwealth v.
Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012). Here
Appellant did not file any post-sentence motions, did not file any post-
verdict motions, and did not orally raise a weight of the evidence claim at
sentencing. Accordingly, even if treated as a weight of the evidence claim,
this issue has been waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2014
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