Com. v. Tomsic, P.

J-S23040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
PHILLIP DANIEL TOMSIC :
:
Appellant :
: No. 2061 EDA 2015
Appeal from the Judgment of Sentence October 10, 2013
in the Court of Common Pleas of Chester County Criminal Division
at No(s): CP-15-CR-0004357-2012
BEFORE: PANELLA, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED April 21, 2016.
Appellant, Phillip Daniel Tomsic, appeals from the judgment of
sentence imposed in the Chester County Court of Common Pleas following
his convictions for driving under the influence1 (“DUI”), homicide by vehicle
while DUI,2 homicide by vehicle,3 aggravated assault by vehicle while DUI,4
involuntary manslaughter,5 recklessly endangering another person,6 and
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(a)(1)-(2).
2
75 Pa.C.S. § 3735.
3
75 Pa.C.S. § 3732.
4
75 Pa.C.S. § 3735.1.
5
18 Pa.C.S. § 2504.
J-S23040-16
three traffic offenses. Appellant challenges the sufficiency of the evidence
supporting his convictions for DUI, homicide by vehicle while DUI, and
aggravated assault by vehicle while DUI. We affirm.
A non-jury trial was held on August 12, 13, and 22, 2013. We
summarize the relevant testimony as follows. Ariel Steele testified that on
the evening of November 4, 2011, she went to Anthony Washington and
Kadeem Fulmore’s suite on the campus of Lincoln University in Chester
County at approximately 7:00 p.m., and each was drinking either gin or
vodka mixed with juice. N.T., 8/12/13 (“Vol. I”), at 21-23. Appellant
arrived around 7:30 p.m. with a red “Solo” cup from which he was drinking a
purple “concoction” Steele assumed to be alcohol. Id. at 24, 34. Steele
observed Appellant drink two more mixed drinks7 in her presence from a
tumbler glass “about the height of a twenty-ounce Solo” cup. Id. at 25-26.
The cup was filled to the top each time. Id. at 26. Appellant was acting
“silly” and “a little bit more playful” than Steele recalled him acting when he
was not consuming alcohol. Id. at 29-31.
Appellant volunteered to drive to a Chinese restaurant, approximately
a ten-minute drive from campus, to pick up food for the group. Id. at 27.
6
18 Pa.C.S. § 2705.
7
Steele testified she could not recall which of the two liquors Appellant was
drinking, but testified it was either gin or vodka. N.T. Vol. I at 32.
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Appellant left the suite and returned with keys, and he, Washington, and
Fulmore left to pick up the food shortly after 8:00 p.m. Id. at 34.
At approximately 9:15 p.m. that evening, Corporal David Williams of
the Lincoln University Police Department received a call from dispatch about
a car accident. Id. at 78. He arrived at the scene and encountered “a
vehicle imbedded into a tree, smoking on a hill, [at] about a forty-five
degree angle.” Id. at 79. Corporal Williams observed Washington, the
front-seat passenger, halfway outside the vehicle, and discovered
Washington did not have a pulse. Id. at 80-82. He could hear another
voice screaming for help and observed Appellant in the driver’s seat. Id. at
81, 83. The car caught fire, and Corporal Williams was unable to extinguish
it. Id. at 85. He then observed Appellant climb over Washington to exit
the car. Id. at 86. Appellant’s waist and legs were on fire, and Corporal
Williams and his partner pulled him from the vehicle and extinguished the
flames with their hands. Id. The fire department responded and put out
the vehicle fire, and the emergency responders pulled Fulmore out from the
back of the car. Id. at 87-88. On cross-examination, Corporal Williams
agreed with Appellant’s counsel that the road where the accident occurred
was “a dark, winding country-type of road” and conceded that he did not
detect any indicia of intoxication from Appellant at the time. Id. at 92, 96.
On redirect examination, he clarified that his focus at that point was safety,
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and he was not attempting to assess Appellant’s level of intoxication. Id. at
104.
At approximately 10:00 p.m. that evening, Trooper Jose Lebron of the
Pennsylvania State Police responded to Crozer-Chester Medical Center,
where Appellant and Fulmore were airlifted,8 to investigate the accident. Id.
at 107. Steele informed Trooper Lebron that Appellant and his friends had
been drinking alcohol prior to driving. Id. at 109. At 12:15 a.m. on
November 5, 2011,9 Appellant’s blood was drawn and provided to Trooper
Lebron. Id. at 110-11. The parties stipulated that the blood was properly
handled and analyzed “using standard, accurate and reliable methodology
and testing equipment” and had a blood alcohol concentration (“BAC”) of
.089 percent. Id. at 197. The parties also stipulated that as a result of the
accident, Washington died and Fulmore sustained a traumatic brain injury,
amputations of the right leg below the knee and the left leg above the knee,
complete loss of the use of his left hand and arm, among other injuries. Id.
at 194-95.
Corporal Louis Robinson, of the Pennsylvania State Police, testified as
an expert in accident reconstruction. He testified that the data from the air
8
Washington was pronounced dead at the scene of the accident and was
transported to a different location. Id. at 112.
9
Trooper Lebron testified this was the first opportunity to draw blood from
Appellant, as there had been a shooting that evening and the scene at the
hospital was “hectic.” Id. at 110-11.
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bag control module revealed that “[t]he vehicle’s peak speed five seconds
before impact was eighty-seven miles an hour,” and that speed was
maintained for two seconds before the vehicle began decelerating. Id. at
149-50. He utilized two methods in determining the speed at which the
vehicle struck the tree. Id. at 159. The speed was estimated at either
49.64 miles per hour or approximately fifty-two miles per hour. Id. at 159-
60. The speed limit on that road was thirty-five miles per hour. Id. at 162.
The Commonwealth asked for Corporal Robinson’s opinion on the cause of
the accident:
Q. What is your opinion as to how this accident
occurred and what factors, speed or any other input,
you heard testimony about alcohol consumption,
speed, driver’s input. Taking all those things into
consideration, what is your opinion as to how this
accident occurred on this night?
A. My opinion is that the operator of this vehicle, for
reasons which have been demonstrated outside of
my reconstruction, introduced excessive steering
input to the vehicle, which is consistent with an
intoxicated operator. There was no reasonable
explanation as to why the vehicle was steered to the
left after having successfully negotiated the curve [in
the road], and that the vehicle was continuing to
decelerate] to a speed which should have been
manageable for it to continue its negotiation on the
roadway. Also, the function that speed played in
that crash is very simply that the amount of ground
that was being traversed while the operator of this
vehicle was attempting to operate it passed more
quickly and that the collision was more catastrophic.
Id. at 158-59.
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Dr. Richard Cohn testified on behalf of the Commonwealth as an
expert in forensic toxicology.10 Dr. Cohn performed a retrograde or “back”
calculation to determine Appellant’s BAC at the time of the crash. Id. at
204. He testified to a reasonable degree of scientific certainty “that at or
around the time of the incident, [Appellant’s] circulating blood alcohol
concentration was 0.12 percent.” Id. at 207; see also id. at 213, 218. He
further opined as to the effect of that level of alcohol on a person’s
cognition:
Certainly every individual at and above the .08
percent has measurable impairment. You couple
that with the fact that this is a .089 to .12 percent
[BAC], then it’s an absolute scientific certainty
that this individual was unfit to perform a
safety sensitive task. A person doesn’t have to be
falling over drunk, sitting on the sidewalk slumped
over to be impaired to perform driving tasks. Just
because somebody may not have exhibited outward
signs that a layperson would have recognized doesn’t
mean he’s not impaired.
Id. at 214 (emphasis added).
Dr. Cohn opined specifically regarding Appellant’s BAC in relation to
the car accident, based on his review of all the reports of the accident,
witness statements, and independent calculations:
Considering all those facets that [the
Commonwealth] indicated, it’s my expert forensic
toxicological opinion that alcohol was at least
10
Dr. Cohn testified Drugscan, Inc., his employer, is a Commonwealth
certified and federally certified toxicology laboratory. Id. at 198.
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causally related to the accident. And in the absence
of any demonstrable documentation as to roadway
conditions or other vehicle problems associated with
this event, then that alcohol was directly causally
related to the accident. That concentration of
alcohol is impairing. And together with the
chronology of events, the actions that were
attributed to this individual prior to the driving of the
vehicle and the concentration of alcohol found about
two hours and forty minutes or so following the
incident, following the collision, then this is an
alcohol-related incident, at least, and could be totally
related to the alcohol.
Id. at 222.
Dr. Lawrence J. Guzzardi testified on Appellant’s behalf as an expert in
medical toxicology and emergency medicine. In his opinion, Appellant’s BAC
at the time of the accident is indeterminable. N.T., 8/13/13 (“Vol. II”), at
273. He agreed with Dr. Cohn’s calculation of Appellant’s BAC assuming
there was little or no alcohol absorbed subsequent to the accident, but he
disagreed that the assumption was warranted in this case. Id. He
summarized his disagreement with Dr. Cohn’s analysis: “In short, you need
to know the time of the drinking relative to the time of the incident before
you can estimate, before you can do reliable extrapolation testimony.” Id.
at 275.
Corporal Robinson was called as a witness for Appellant and testified
he could not say if there were any distractions just before Appellant crashed
or whether or not Appellant was using a cell phone. N.T., 8/22/15 (“Vol.
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III”), at 317-18. Following, Corporal Robinson’s testimony, the defense
rested.
On August 28, 2013, the trial court convicted Appellant of the
aforementioned crimes. On October 10, 2013, the trial court sentenced
Appellant to an aggregate term of five to ten years’ imprisonment plus fines.
Appellant did not file post-sentence motions or a timely direct appeal.
On November 10, 2014, Appellant filed a timely, pro se petition
pursuant to the Post Conviction Relief Act11 (“PCRA”). Counsel was
appointed and filed an amended petition seeking reinstatement of
Appellant’s direct appeal rights nunc pro tunc, based on prior counsel’s
failure to file a requested direct appeal. On June 10, 2015, the PCRA court
reinstated Appellant’s direct appeal rights nunc pro tunc. Appellant filed a
notice of appeal on July 8, 2015 and a court-ordered Pa.R.A.P. 1925(b)
statement on July 31, 2015. The trial court filed a responsive opinion.
Appellant raises the following claims of error:
I. The trial court erred in finding sufficient evidence
for a conviction on the charge of [DUI] of Alcohol
pursuant to 75 Pa.C.S.[] § 3802(a)(1) and 75
Pa.C.S.[] § 3802(a)(2).
11
42 Pa.C.S §§ 9541-9546.
We note the 30th day from Appellant’s judgment of sentence was
Saturday, November 9, 2013, and the Court was closed on Monday,
November 11, 2013 in observation of Veterans Day. Therefore, Appellant’s
judgment of sentence became final on November 12, 2013. See 42 Pa.C.S.
§ 9545(b)(3); 1 Pa.C.S. § 1908; Pa.R.A.P. 903.
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II. The trial court erred in finding sufficient evidence
for convictions, specifically in terms of causation, on
the charges of Homicide by Vehicle While [DUI]
pursuant to 75 Pa.C.S.[] § 3735 and Aggravated
Assault by Vehicle While [DUI] pursuant to 75
Pa.C.S.[] § 3735.1.
Appellant’s Brief at 18.12
Appellant first challenges his convictions for DUI. Specifically,
Appellant contends Dr. Cohn’s “unproven assumptions,” on which he
premised his expert opinion, render the evidence insufficient to prove
Appellant committed DUI. See id. at 25-34. For Appellant’s second issue,
he “concedes that he unintentionally caused the death of Anthony
Washington and that he negligently caused serious bodily injury to Kadeem
Fulmore.” Id. at 19. However, he argues the Commonwealth failed to
sufficiently prove that Appellant’s violation of Section 3802 was the cause of
Washington’s death and Fulmore’s injuries. See id. at 19-25. He argues
the trial testimony indicated that the cause of the accident “could very
rationally be road conditions, driver inexperience and speed[,]” and he
challenges the expert opinion of Dr. Cohn. Id. at 20-25. For the following
reasons, we hold Appellant is not entitled to relief.
Our standard of review is well settled:
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
12
We have reordered Appellant’s issues for ease of discussion.
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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 the fact-finder. In addition, we
note 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 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 finder 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. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted). We further consider all reasonable inferences derived
from the evidence in the light most favorable to the Commonwealth.
Commonwealth v. Cruz, 71 A.3d 998, 1009 (Pa. Super.), appeal denied,
81 A.3d 75 (Pa. 2013). The fact-finder determines the relevancy and weight
to assign to expert testimony. Id. Moreover, sufficiency of evidence
analyses do not require a reviewing court to ask whether it believes the
evidence; rather, we determine whether the evidence presented, if believed
by the fact-finder, was sufficient to support the verdict. Commonwealth v.
Ratsamy, 934 A.2d 1233, 1235-36 (Pa. 2007).
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The trial court convicted Appellant of DUI under Subsections
3802(a)(1) and (2), which provide:
(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.
(2) 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 at least 0.08% but
less than 0.10% 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. § 3802(a)(1)-(2).
Homicide by vehicle while DUI is codified, in relevant part, as follows:
(a) Offense defined.—Any person who
unintentionally causes the death of another person
as the result of a violation of section 3802 (relating
to driving under the influence of alcohol or controlled
substance) and who is convicted of violating section
3802 is guilty of a felony of the second degree when
the violation is the cause of death . . . .
Id. § 3735(a).
Finally, aggravated assault by vehicle while DUI provides:
(a) Offense defined.—Any person who negligently
causes serious bodily injury to another person as the
result of a violation of Section 3802 . . . and who is
convicted of violating section 3802 commits a felony
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of the second degree when the violation is the cause
of the injury.
Id. § 3735.1(a).
Instantly, the Commonwealth presented the testimony of Ariel Steele
who personally observed Appellant drinking liquor mixed with soft drinks
beginning approximately one-half hour before Appellant left campus to pick
up food. N.T. Vol. I at 25-26, 34. It is undisputed that Appellant was the
driver of the vehicle and that the one-vehicle crash into a tree resulted in
Washington’s death and Fulmore’s serious bodily injury. Id. at 194-95. It is
further undisputed that when Appellant’s blood was drawn, approximately
three hours after Corporal Williams received a dispatch about the accident,
Appellant had a BAC of .089 percent. Id. at 197. Corporal Roinson opined
that “there was no reasonable explanation as to why the vehicle was steered
to the left” after it had successfully maneuvered a curve in the roadway, and
the operation of the vehicle was consistent with an intoxicated driver. Id. at
158-59. Dr. Cohn testified to a reasonable degree of medical certainty that
Appellant’s BAC was .12 percent at the time of the incident and alcohol was
a causal factor in the crash. Id. at 207, 222. He further opined, to “an
absolute scientific certainty,” that a person with a BAC between .089 percent
and .12 percent is “unfit to perform a safety sensitive task.” Id. at 214.
Appellant’s attempts to discredit Dr. Cohn’s opinion challenge the weight of
that evidence not its sufficiency. See Cruz, 71 A.3d at 1008. We further
note, “Pennsylvania’s DUI law does not require relation-back evidence as a
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matter of law, nor does it specify the manner by which the Commonwealth
must prove that the accused operated a vehicle while having a BAC over
0.08%.” Id.
Viewing all the evidence in the light most favorable to the
Commonwealth, we conclude there was sufficient evidence to prove
Appellant operated a vehicle after imbibing a sufficient amount of alcohol to
render him incapable of safely operating the vehicle and that his BAC was at
least .08 percent within two hours of his operation of the vehicle. See 75
Pa.C.S. § 3802(a)(1), (2); Talbert, 129 A.3d at 542. The trial court was
free to assess and weight the expert testimony of Corporal Robinson and Dr.
Cohn and conclude Appellant was impaired when operating his vehicle. See
Talbert, 129 A.3d at 543; Cruz, 71 A.3d at 1009. Moreover, viewing all the
evidence and reasonable inferences derived therefrom in the light most
favorable to the Commonwealth, we conclude there was sufficient evidence
to prove Appellant’s violation of Section 3802 was the cause of Washington’s
death and Fulmore’s serious bodily injury. See 75 Pa.C.S. § 3735; id.
§ 3735.1; Talbert, 129 A.3d at 543; Cruz, 71 A.3d at 1009. While
Appellant suggests driver inexperience, speed, or road conditions “could”
have caused the accident, it was the within the purview of the trial court to
resolve any doubts as to Appellant’s guilt. See Talbert, 129 A.2d at 543.
Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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