Com. v. Heaney, J.

J-A15014-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN P. HEANEY III
Appellant No. 1419 EDA 2013
Appeal from the Judgment of Sentence January 14, 2013
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002982-2011
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 20, 2014
Appellant, John P. Heaney III, appeals from the judgment of sentence
entered on January 14, 2013, by the Honorable Paula A. Roscioli, Court of
Common Pleas of Northampton County. After careful review, we affirm
hearing.
On July 1, 2011, while driving on Route 512 in Bangor, Pennsylvania,
motorcyclists, killing two instantly and injuring four others. See N.T., Trial,
12/3/12, at 35, 40; N.T., Trial, 12/4/12, at 10-11, 16, 22, 28, 45.
Earlier that day, Heaney went fishing with a friend and had lunch at a
local grill, where he had a few beers. See N.T., Trial, 12/5/12, at 5-6, 25-
26. After leaving his friend, Heaney went to the Jacksonian Democratic Club,
J-A15014-14
where he had a few vodka tonics. See N.T., Trial, 12/5/12, at 7-8; N.T.,
Trial, 12/4/12, at 170-71, 190-92. The bartenders at the club did not notice
Heaney exhibit any signs of intoxication. See N.T., Trial, 12/4/12, at 173,
sick, but not intoxicated. See N.T., Trial 12/5/12, at 12. When questioned by
the police about his activities that day, Heaney stated that he had gone
fishing with a friend and had a beer at lunch afterwards. See N.T., Trial,
12/4/12, at 126. However, he failed to tell the police about his time at the
Jacksonian Club. See id.
At the scene of the accident, some of the officers did not notice any
signs of intoxication or unusual behavior when observing Heaney. See id.,
at 111-14, 149-50. However, several other officers did note an odor of
alcohol on Heaney and observed bloodshot, glassy eyes. See id., at 124,
161; N.T., Trial, 12/5/12, at 45, 91; N.T., Trial, 12/6/12, at 6. Officer Jones
administered field sobriety tests to Heaney at the scene. See N.T., Trial
12/5/12, at 50-52. Heaney failed all the tests, and therefore, Officer Jones
placed him under arrest for suspicion of driving under the influence. See id.
Officer Hughes later processed Heaney at the DUI center, where he
noticed bloodshot, glassy eyes and an odor of alcohol. See N.T., Trial,
12/5/12, at 91. Furthermore, Heaney refused to give a blood sample for
testing. See id., at 87. Heaney maintained that he was not intoxicated at
the time of the accident. See N.T., Trial, 12/7/12, at 76. Rather, Heaney
-2-
J-A15014-14
claimed that due to his prior gastric bypass surgery, his consumption of a
substantial amount of Gatorade on the day of the accident sent him into an
episode of hypoglycemia, which impaired his abilities and caused the
accident. See id., at 8-9, 134-37; N.T., Trial, 12/6/12, at 158.
Following a seven day trial, a jury convicted Heaney of one count of
driving under the influence general impairment/incapable of safe driving;1
two counts of involuntary manslaughter;2 four counts of recklessly
endangering another person;3 one count of reckless driving;4 one count of
careless driving5; and one count of driving on roadways laned for traffic
single lane.6
At sentencing, Heaney received 30 days to six months of incarceration,
50 hours of community service, one year license suspension, and a $300
fine for driving under the influence; 16 months to 32 months of incarceration
for each count of involuntary manslaughter; one month to 12 months of
incarceration for each count of recklessly endangering another person; a
$300 fine for reckless driving; a $200 fine for careless driving; and a $300
fine for driving on roadways laned for traffic. The trial court imposed the
above sentences consecutively, for an aggregate imprisonment term of 37
____________________________________________
1
75 Pa.C.S.A. § 3802(a)(1)
2
18 Pa.C.S.A. § 2504(b)
3
18 Pa.C.S.A. § 2705
4
75 PA.C.S.A. § 3736
5
75 Pa.C.S.A. § 3714
6
75 Pa.C.S.A. § 3309
-3-
J-A15014-14
months to 118 months. Additionally, the trial court ordered Heaney to pay
restitution of $194,226.59.
Heaney then filed post sentence motions, which the court granted in
part and denied in part. The trial court amended its sentence to remove the
costs and fines imposed for reckless driving and careless driving, as the two
merge together under the offense of recklessly endangering another person.
Additionally, the trial court reduced the fine of driving on roadways laned for
traffic from $200 to $25, as dictated per statute. In all other respects, it
denied the post-sentence motions. This timely appeal follows.
On appeal, Heaney first claims the evidence was insufficient to support
his convictions.
evidence admitted at trial, and all reasonable inferences derived therefrom,
when viewed in the light most favorable to the Commonwealth as verdict
winner, supports all of the elements of the offense beyond a reasonable
Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007) (citation
omitted). This burden of proof may be satisfied through both direct and
circumstantial evidence, but circumstantial evidence alone is sufficient. See
id. In making this determination, the court may not substitute its own
judgment for that of the j
evidence, determine credibility, and believe all, part, or none of the
evidence. See id.
-4-
J-A15014-14
Heaney next claims the verdict was against the weight of the evidence.
Our standard of review for a challenge to the weight of the evidence is well
settled. We may not substitute our judgment for that of the fact finder, who
is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. See Commonwealth v. Diggs, 949 A.2d 873,
879 (2008). The trial court may only award a new trial where the verdict is
See id.
rendition, causes the trial judge to lose his breath, temporarily, and causes
him to almost fall from the bench, then it is truly shocking to the judicial
Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa. Super.
2007) (citation omitted). Our review is thus limited to whether the trial court
properly exercised its discretion, and relief is only granted where the facts
and inferences of record disclose a palpable abuse of discretion. See Diggs,
949 A.2d at 879.
Heaney next challenges the discretionary aspects of his sentence.
Specifically, he characterizes the sentence as unreasonable and excessive,
and further claims the trial court failed to consider various mitigating factors,
considered improper factors, and imposed consecutive rather than
concurrent sentences. Our standard of review of a sentence is well settled.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
-5-
J-A15014-14
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
sentence is not
Id., at 1274 (citation omitted). Therefore,
discretionary aspects of the sentence imposed, an appellant must present a
Id. See
also Pa.R.A.P. 2119(f). Specifically, an appellant must articulate the manner
in which the sentence is inconsistent with a provision of the sentencing code
or is contrary to a fundamental norm of the sentencing process. See
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
to impose its sentence concurrently or consecutively to other sentences
Id.
(citation omitted). General
Commonwealth
v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citations omitted).
the factors proffered in 42 Pa.C.S. § 9721 does present a substantial
question whereas a statement that the court failed to consider facts of
-6-
J-A15014-14
record, though necessarily encompassing the factors of § 9721, has been
Commonwealth v. Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super.
2013). Additionally, where the court had the benefit of a pre-sentence
investigation report there is a presumption that the court was aware of
information along with the mitigating statutory factors. See
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super. 2005);
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004), aff'd,
891 A.2d 1265 (Pa. 2006).
Heaney next argues the trial court erred in denying his motion for a
mistrial when the jury indicated it was unable to reach a unanimous verdict.
-read the criminal charges on
numerous occasions demonstrates
Allen charge further confused the jury.
[w]hen an event
prejudicial to the defendant occurs during trial only the defendant may move
for a mistrial; the motion shall be made when the event is disclosed.
Otherwise, the trial judge may declare a mistrial only for reasons of manifest
Manifest necessity is a vague concept and
the determination of its existence must turn on the facts of the case. See
Commonwealth v. Walker, 954 A.2d 1249, 1257 (Pa. Super. 2008); see
also Commonwealth v. Balog, 576 A.2d 1092, 1095 (Pa. Super. 1990).
-7-
J-A15014-14
the inability of the jury to agree on a verdict such that the jury is hopelessly
Id
that a deadlocked jury exists, then manifest necessity for a mistrial is not
Id.
Our standard of review for jury charges, including supplemental jury
charges, is whether there is an abuse of discretion. See Commonwealth v.
Greer
e decision will
not be disturbed unless there is a showing that the court abused its
Id. (citation omitted).
Heaney next claims the trial court erred by denying his motion in
limine
Specifically, Heaney argues Dr. Roslin did not express his opinions to a
reasonable degree of medical certainty. Thus, by permitting Dr. Roslin to
testify, the trial court allowed the jury to render a speculative decision
Our standard of review for a motion in limine is to apply the scope of
review appropriate to the particular evidentiary matter. See
Commonwealth v. Williams, 91 A.3d 240, 248 (Pa. Super. 2014). Our
standard of review of a challenge to the admissibility of evidence is whether
-8-
J-A15014-14
the trial court abused its discretion or committed an error of law. See id.
Pennsylvania, expert testimony is sufficient to support a finding when given
Commonwealth v. Davido,
868 A.2d 431, 441 (Pa. 2005) (citation omitted). An expert witness must
testify that
in his professional opinion the result in question came from the
cause alleged. A less direct expression of opinion falls below the
required standard of proof and does not constitute legally
the substance of their testimony to
determination that a witness is qualified to testify as an expert
unless we find an abuse of discretion.
Id (citations omitted).
As to the foregoing issues, with the above standards of review in mind,
trial court opinions, and we find the trial court has thoroughly addressed
those issues. See Opinion of the Court, 4/16/13, at 1-35; Rule 1925(a)
Opinion, 8/6/13, at 1-39. We adopt that reasoning as our own and affirm on
the basis of that opinion.
Lastly, Heaney challenges the restitution imposed and claims he was
denied a restitution hearing.
Commonwealth v. Atanasio, 997
A.2d 1181, 1182-83 (Pa. Super. 2010) (citation omitted). The imposition of
restitution is within the sound discretion of the sentencing court and must be
-9-
J-A15014-14
supported by the record. See Commonwealth v. Solomon, 25 A.3d 380,
389 (Pa. Super. 2011). A claim that a restitution order is unsupported by the
record is a challenge to the legality of the sentence. See Atanasio, 997
A.2d at 1183. As such, it is a question of law, for which our standard of
review is plenary. See id.
We are constrained to vacate the award of restitution. In its opinion
filed on April 16, 2013, following the disposition of the post-sentence
motions, the trial court, in explaining the award of restitution, noted the
following:
In addition, while counsel for Defendant objected at the time of
the sentencing to the manner of the presentation of evidence on
restitution, as he had not come prepared to cross examine the
victim witness on this issue, the [c]ourt made it clear that it
would hold a later evidentiary hearing at the request of
Defendant so that Defendant could have an opportunity to cross
examine them; to date, Defendant has yet to request a
restitution hearing.
Opinion of the Court, 4/16/13, at 33 (emphasis added). At the time that the
trial court wrote that Heaney had not requested a hearing he, in fact, had.
See Rule 1925(a) Opinion, 8/6/13, at 40 n.18
-sentence motions, we did not recognize his request for a
restitution hearing contained in paragraph 45 of the post-sentence
entitled to a h
Id.
- 10 -
J-A15014-14
Heaney is entitled to a hearing. Accordingly, we vacate the award of
restitution and remand for a hearing.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
- 11 -
rculate
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA :
No. CP-48-CR-2982-2011
JOHN P. HEANEY/ 111, c::
Defendant. .•
Cr::5i
70;', — •
STATEMENT PURSUANT TO r
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 6 112
AND NOVI, this 6th day of August 2013, this Court having received
Defendant's tirnely Notice of Appeal to the Superior Court of Pennsylvania from
our Judgment of Sentence entered on January 14, 2013, made final by the
denial of Defendant's post-sentence motions on April 16, 2013, we hereby issue
the following statement pursuant to PennsYlvania Rule of AppeHate Procedure
1925(a):
On July 13, 2011, the Bangor Borough Police Department charged
Defendant with (1) two counts of Homicide by Vehicle While Driving Under the
Influence (75 Pa.C.S. § 3735(a)), (2) two counts of Homicide by Vehicle (75
Pa.C.S. § 3732(a)), (3) four counts of Aggravated Assault by Vehicle While
Driving Under the Influence (75 Pa.C.S. § 3735.1(a)), (4) four counts of
Aggravated Assault by Vehicle (75 Pa,C.S. § 3732.1(a)), (5) two counts of
Involuntary Manslaughter (18 Pa.C.S. § 2504(b)), (6) four counts of Recklessly
Endangering Another Person (18 Pa.C.S. § 2705), (7) one count of Driving
Under the Influence — General Impairment/Incapable of Safe Driving (75
Pa.C.S. § 3802(a)(1)), (8) one count of Reckless Driving (75 Pa.C.S. § 3736),
Page 1 of 41
(9) six counts of Careless Driving (75 Pa.C.S. g 3714), (10) one count of
Driving on Roadways Laned for Traffic — Single Lane (75 Pa.C.S. § 3309), and
(11) one count of Driving Vehicle at Safe Speed (75 Pa.C.S. § 3361).
Magisterial District 3udge Todd M. Strohe held a preliminary hearing on
September 23, 2011, after which he bound over all of the charges for trial, The
Commonwealth filed the Criminal Inforrnation in this matter on November 7,
2011, and Defendant was formally arraigned on November 10, 2011.
The Honorable F.P. Kimberly McFadden assigned this case to the
undersigned on November 30, 2011. On December 12, 2011, Defendant filed
an Omnibus Pre-Trial Motion, which included a Motion to Suppress Evidence.
This Court held an evidentiary hearing on the motion on February 3, 2012, after
which the parties had the opportunity to file briefs in support of their respective
positions. The Commonwealth filed a brief in opposition to the suppression
motion on February 24, 2012, and Defendant filed a brief In support of the
suppression motion on March 2, 2012. On March 14, 2012, this Court entered
an Opinion of the Court and Order denying the Motion to Suppress Evidence.
On November 16, 2012, Defendant filed a Motion in Lirnine seeking to,
Inter alia, preclude a potential Commonwealth witness, Mitchell S. Roslin, M.D.,
FACS, from testifying at trial.1 On the same date, the Commonwealth filed a
Motion in Limine.
In the motion, Defendant also sought to preclude the Commonwealth from introducing a
DVD containing an alleged commercial advertisement advising gastric bypass patents not to
drive a hlotor vehicle after consuming alcohol. (Defendant's Motion in Limine at vp 44-47.)
Defendant withdrew this part of the motion prior to trial. (Transcript of Proceedings, 11-16-
12, at
Page 2 of 41
ulated 0 014 03:10 PM
This COurt held a jury trial in this case from December 3, 2012 until
December 11, 2012. During the trial, the Commonwealth presented evidence
showing that, Inter alia, on July 1, 2011, at approximately 4:48 p.m., Defendant
was involved in a motor vehicle accident on State Road 512 In the Borough of
Bath, Northampton County, Pennsylvania. The accident occurred between
Defendant, who was driving a Dodge Rarn pickup truck, and a group of seven
motorcyclists at a curve in the road. Defendant's truck was entirely in the
motorcyclists lane of travel at the time of the collision. Because of the nature
of the curve in the road, the motorcyclists were unable to see the truck until It
was upon them, leaving them unable to avoid the collision, Two of the
motorcyclists were killed imrnediately at the scene of the crash, four were
seriously injured, and only the rear-most motorcyclist in the group avoided
sustaining any injury. The Commonwealth contended that Defendant was under
the influence of alcohol at the time of the accident, and that the resultant
impairment of Defendants ability to drive safely was the cause of the accident.
Defendant maintained his innocence and asserted that a sudden hypoglycemic
Regarding the part of the motion seeking to preclude the testimony of Dr. Rosiin,
Defendant argued that(1) Dr. Roslin failed to express certain opinions in his report to the
requisite degree of reasonable medical certainty, (2) even if Dr. Roslin's testimony was
relevant, its "limited probative value is outvveighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay and
vvaste of time,"(3) Dr. Roslin impermissibly referenced and relied upon the inadmissible
results of a portable breath test performed by Defendant,(4) Dr. Roslin Improperly and
impermissibly used "inexact, unfairly prejudicial terminology" in the form of the word,
"buzz," to create the impression that Defendant vvas intoxicated at the time of the accident
even though Dr. Roslin did not render an opinion in that regard to a reasonable degree of
medical certainty, and (5) some of Dr. Roslin's opinions constituted inadmissible legal
opinions. (Motion in Limine at IA 4-9, 22-43.) Defendant also requested a Frye hearing to
address whether the scientific evidence forming the basis of Dr. Roslin's opinions had
achieved general acceptance in the pertinent scientific community. (Id. at ¶1 10-21.)
Page 3 of 41
Circulated 07/22/2014 03:10 PM
event caused him to black out and drive into the wrong lane of travel
immediately before the accident.
On December 11, 201.2, the jury found Defendant guilty of one count of
Driving Under the Influence - General Impairment/Incapable of Safe Driving,
two counts of Involuntary Manslaughter, and four counts of ReckleSsly
Endangering Another Person.2 On January 1.1, 2013, Defendant filed a Motion
for a New Trial Pursuant to Rule 607(A)(2) of the Pennsylvania Rules of Criminal
Procedure and for Bail After Sentencing Pursuant to Rule 521(B) of the
Pennsylvania Rules of Criminal Procedure.
This Court convened for a sentencing hearing on January 1.4, 2013. Prior
to sentencing, we denied Defendant's motion for a new trial after hearing
argument from the parties. (Transcript of Proceedings, 1-14-13 ("Sentencing
Tr."), at 2-14.) We then held a sentencing bearing, after which we imposed
sentences of state incarceration of (1) a minimum of 16 months to a maximum
of 32 rnonths for each of the two counts of Involuntary Manslaughter, (2) a
minimum of 1 month to a maximum of 12 months for each of the four counts of
Recklessly Endangering Another Person, and (3) a minimum of 30 days to a
maximum of 6 months for the offense of Driving Under the Influence - General
Impairment/Incapable of Safe Driving. We imposed all of the sentences
2 The jury acquitted Defendant of the other charges filed against him, Including two counts
of Homicide by Vehicle While Driving Under the Influence, two counts of Homicide by
Vehicle, four counts of Aggravated Assault by Vehicle While Driving Under the Influence,
and four counts of Aggravated Assault by Vehicle. Regarding the summary offenses, we
found Defendant guilty of one count of Reckless Driving, one count of Careless Driving, and
one count of Driving on Roadways Laned for Traffic - Single Lane. We acquitted Defendant
of the offense of Driving Vehicle at Safe Speed.
Page 4 of 41
Circulated 07/22/2014 03:10 PM
consecutively, resulting in an aggregate sentence of a minimum of 37 months
to a maximum of 118 months in a state correctional institution.
Defendant timely filed post-sentence motions on January 24, 2013,3 The
Commonwealth filed an answer to the post-sentence motions on March 19,
2013. On April 16, 2013, we filed an Opinion of the Court and Order in which
we (1) amended our sentence of January 14, 2013 by (a) deleting the costs and
fines imposed on the charges of Reckless Driving and Careless Driving, and (b)
changing the $200.00 fine imposed on the charge of Driving on Roadways
Laned for Traffic — Single Lane to a fine of $25.00, and (2) denied the
remainder of the post-sentence motions.
On May 15, 2013, this Court received notice of Defendant's timely Notice
of Appeal to the SuperiorCourt of Pennsylvania from our Judgment of Sentence
entered on January 14, 2013. On that same date, we issued an Order pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b), directing Defendant to file
of record and serve upon the undersigned a concise statement of the errors
complained of on appeal, no later than 21 days from the date of that Order.
Defendant filed a timely, 21-page concise statement on June 5, 2013. Due to
the length of the "concise" statement and its incorporation of arguments raised
in previous motions, we have rephrased the issues as follows:
1. The Commonwealth failed to present sufficient evidence to sustain
the conviction for Driving Under the Influence — General Impairment/Incapable
3 The post-sentence motions included a motion for judgment of acquittal, a motion in arrest
of judgment, and a motion for reconsideration of his sentence. (Defendant's Post-Sentence
Motion Pursuant to Rule 720(B)(1)(a) of the Pennsylvania Rules of Criminal Procedure at
28-45.)
Page 5 of 41
Circulated 07/22/2014 03:10 PM
of Safe Driving because the Commonwealth failed to introduce sufficient
evidence proving that he was under the influence of alcohol or substantially
impaired to a degree that he could not safely operate a motor vehicle at the
time of the accident. The Commonwealth also failed to present sufficient
evidence to sustain the convictions for Involuntary Manslaughter, Recklessly
Endangering Another Person, Reckless Driving, Careless Driving, or Driving on
Roadways Laned for Traffic — Single Lane because the Commonwealth did not
prove that he acted intentionally or recklessly, or that his conduct was grossly
negligent exhibiting a disregard of human life or indifference to the
consequences of his actions. (Defendant's Statement of Matters Complained of
on Appeal Pursuant to Pa,R,A,P. 1925(b) at 1-2, 20-21.)
2. The trial court erred or committed an abuse of discretion by
denying Defendant's Motion for a New Trial pursuant to Rule 607(A)(2) of the
Pennsylvania Rules of Criminal Procedure because the verdict at trial was
against the weight of the evidence. (Id. at 2-3.)
3. The trial court erred or committed an abuse of discretion in
imposing seven consecutive sentences resulting in a state prison sentence for a
minimum of 37 rnonths to a maximum of 118 months, (Id. at 3-4, 7-20.)
4. The trial court erred by denying Defendant's motion for a mistrial
after the jury foreperson indicated that the jury was unable to reach
unanimous verdict. (Id. at 4-5.)
Page 6 of 41
Circulated 07/22/2014 03:10 PM
5. The trial court erred by denying Defendant's Motion in Limine to
preclude the testimony of the Commonwealth's expert, Mitchell Roslin, M.D.
(Id. at 5.)
6. The trial court erred by imposing restitution in the amount of
$194,226.59 and erred by asserting that Defendant failed to request a
restitution hearing, • (Id. at 576,)
7. The trial court erred by denying Count IV of Defendant's Omnibus
Pretrial Motion for Relief seeking suppression of Defendant's statements at the
accident scene and at the Borough of Bangor police station. (Id. at 6-7.)
I. The Court Properly Denied Defendant's Motion for Judgment of
Acquittal and Motion in Arrest of Judgment Because the
Commonwealth Presented Sufficient Evidence to Satisfy
Defendant's Convictions
In his first matter complained of, Defendant contends that we erred in
denying his oral motion for judgment of acquittal raised after all of the evidence
was presented in accordance with Rule 606(A)(2) of the Pennsylvania Rules of
Criminal Procedure (Pa.R.Crim.P."), see Transcript of Proceedings, Day VI, 12-
10-12 CDay VI Tr."), at 4-6, and his written motions in arrest of judgment and
for judgment of acquittal that were included in his written post-sentence
motions in accordance with Rule 720(B)(1)(a) of the Pennsylvania Rules of
Criminal Procedure. More specifically, Defendant argues that the
Commonwealth failed to present sufficient evidence to convict him of Driving
Under the Influence — General Impairment/Incapable of Safe Driving,
Involuntary Manslaughter, Recklessly Endangering Another Person, Reckless
Driving, Careless Driving, or Driving on Roadways Laned for Traffic — Single
Page 7 of 41
Circulated 07/22/2014 03:10 PM
Lane. Concerning the offense of Driving Under the Influence — General
Impairment/Incapable of Safe Driving, Defendant asserts that the
Commonwealth failed to introduce sufficient evidence proving that he was under
the influence of alcohol or substantially impaired to a degree that he could riot
safely operate a motor vehicle at the time of the accident. In regard to the
othei- offenses, Defendant claims that the Commonwealth faHed to show that he
acted intentionally or recklessly, or that his conduct was grossly negligent
exhibiting a disregard of human life or indifference to the consequences of his
actions.
In his ninth matter complained of, Defendant repeats his assertion that
the convictions were not supported by sufficient evidence, and he claims that
the convictions were the result of the jury's confusion about the elements of
these offenses, sympathy for the victims and their families, and the jurors'
attempt to compromise to avoid a hung jury.
We respectfully • submit that Defendant's contentions relating to the
sufficiency of the evidence presented at trial lack merit. We thoroughly and
properly addressed Defendant's claims regarding the sufficiency of the evidence
presented to support the convictions in this case in pages 3 through 19 of our
April 16, 2013 Opinion• of the Court and Order, which resolved Defendant's post-
sentence motions. As such, the April 16, 2013 Opinion of the Court and Order
is the place in the record where the appellate court may review our reasons for
denying Defendant's motion for judgment of acquittal and motion in arrest of
judgment.
Page 8 of 41
Circulated 07/22/2014 03:10 PM
We also note that there is no evidence in the record to support his claim
that the jury reached a verdict in this case merely due to sympathy for the
victims. As for Defendant's assertions that the jury was confused about the
elements of the offenses or that they somehow reached a compromise verdict
after the Court's Allen charge, we have addressed Defendant's claims relating to
the jury's deliberations in Part IV of this opinion. Based on our discussion
therein, we submit that verdict in this case was not due to jury confusion or the
desire to reach a compromise verdict, especially considering that the
Commonwealth produced sufficient evidence to sustain the convictions.
IL The Court Properly Denied Defendants Motion for a Nevv Trial
Because the Verdict Was Not Against the Weight of the Evidence
In his second matter complained of, Defendant asserts that the Court
erred in denying his Motion for a New Trial Pursuant to Rule 607(A)(2) of the•
Pennsylvania Rules of Criminal Procedure because the verdict at trial was
against the weight of the evidence. In general, Defendant argues that the
overwhelming majority of the credible evidence presented at trial demonstrated
that he was not intoxicated, substantially impaired, or otherwise incapable of
safe driving at the time of the accident. In addition, Defendant contends that
the Court erred by denying the motion for a new trial and allegedly relying
solely on the opinion of Officer Kevin Jones that Defendant appeared to be
intoxicated. As discussed below, we did not abuse our discretion in denying
Defendant's motion for a new trial.
Page 9 of 41
Circulated 07/22/2014 03:10 PM
Regarding weight of the evidence claims, the scope of review for the
appellate court in evaluating the weight of the evidence is well established:
[O]ur scope of review for such a claim is very narrow. The
determination of whether to grant a new trial because the verdict is
against the weight of the evidence rests within the discretion of the
trial court, and we will not disturb that decision absent an abuse of
discretion. Where issues of credibility and weight of the evidence
are concerned, it is not the function of the appellate court to
substitute its judgment based on a cold record for that of the trial
court. The weight to be accorded conflicting evidence is exclusively
for the fact finder, whose findings will not be disturbed on appeal if
they are supported by the record. A claim that the evidence
presented at trial was contradictory and unable to support the
verdict requires the grant of a new trial only when the verdict is so
contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Lyons, 833 A.2c1 245, 259 (Pa. Super. 2003) (citation
omitted).
Where evidence conflicts, it is the sole province of the fact-finder to
determine credibility and to believe all, part or none of the evidence.
Commonwealth v. 1-Ilatky, 626 A.2d 575, 580 (Pa. Super. 1993. Moreover,
)
[a] motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the weight
of the evidence is addressed to the sound discretion of the trial
court. A new trial should not be granted because of a rnere conflict
in the testimony or because the judge on the same facts would
have arrived at a different conclusion. A trial judge must do more
than reassess the credibility of the witnesses and allege that he
would not have assented to the verdict if he were a juror. Trial
judges, in reviewing a claim that the verdict is against the weight of
the evidence do not sit as the thirteenth juror. Rather, the role of
the trial judge Is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them or
to give them equal weight with all the facts is to deny justice.
Page 10 of 41.
Circulated 07/22/2014 03:10 PM
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations and
quotations omitted).
Contrary to Defendant's contention, the verdict at trial was not against
the weight of the evidence. In the first instance, although Defendant
emphasizes the number of witnesses that allegedly failed to testify that he was
intoxicated at the time of the accident, he ignores that a number of witnesses
testified that at least a slight odor ernanated from his breath. Those witnesses,
included, but were riot lirnited to, (1) Christopher Finan, Jr. ("EMT Finan"), the
emergency medical technician that evaluated Defendant at the accident scene,
(2) James Hughes, the processor at the Northampton County DUI Processing
Center, (3) Officer Timothy Cooper of the City of Bethlehem Police Department,
the individual that completed the DUI Influence Report, and (4) Officer Michael
Flaherty of multiple police departments, including the East Bangor Police
Department, who observed Defendant and spoke to him at the accident scene.
(Transcript of Proceedings, Day II, 12-4-12 ("Day II Tr."), at 145, 156, 160-61;
Transcript of Proceedings, Day III, 12-5-12 CDay III Tr."), at 82, 91; Transcript
of Proceedings, Day IV, 12-6-12 ("Day IV Tr."), at 6.)4 In addition, Mr. Hughes
and Officer Cooper testified that Defendant had bloodshot and glassy eyes.
(Day III Tr. at 91; Day IV Tr. at 6.) Thus, although none of these witnesses
opined that Defendant was visibly intoxicated or unable to safely drive a vehicle,
they did testify that Defendant exhibited signs of intoxication. Furthermore, in
his argument Defendant omits any reference to the consciousness of guilt
4 Officer Paherty also noticed a combination of an odor of alcohol with an odor of gurn or
candy. (Day I Tr. at 124.)
Page 11 of 41
Circulated 07/22/2014 03:10 PM
demonstrated by his refusal to submit to a blood draw to determine his blood
alcohol content and his failure to tell the police that he was at the Jacksonian
Democratic Club drinking alcohol just prior to the accidents
Defendant also ignores the testimony relating to the manner in which he
was driving his truck immediately prior to the accident; although, we
understand that Defendant atternpts to excuse his erratic driving by blaming it
on a sudden hypoglycemic attack. Defendants vehicle was entirely over the
double yellow line and in • the wrong lane of travel when he struck the
motorcycle group, (Transcript of Proceedings, Day 1, 12-3-12 CDay 1 Tr.'), at
35, 40-42.) Also, Defendants vehicle was fishtailing just prior to the collision.
(Id. at 40, 51; Day II Tr. at 9.) The erratic manner of Defendant's driving was
an imPortant consideration in evaluating whether he was incapable of safely
driving his vehicle due to intoxication. See Commonwealth v. Montini, 712 A.2d
761, 768 (Pa. Super. 1998)(indicating that observations of defendant operating
vehicle in erratic manner can be considered in analyzing whether defendant was
incapable of safe driving).
As for the testimony of Officer Kevin Jones, Defendant attacks his
testimony because, inter alia, he (1) did not know about Defendant's medical
history, (2) allegedly relied upon inaccurate information about how much
alcohol Defendant consumed prior to the accident, (3) could not differentiate
between the symptoms of a hypoglycemic attack from the symptoms of alcohol
intoxication, (4) did not recognize or appreciate the effects that the shock and
5 EMT Finan also testified that Defendant commenced a finger-to-nose field sobriety test in
front of him without being prompted to do so. (Day II Tr. at 160.)
Page 12 of 41
Circulated 07/22/2014 03:10 PM
trauma of the accident had upon Defendant,(5) erroneously believed there was
a correlation between the strength of an odor of alcohol upon an individual with
that individual's blood alcohol content, and (6) altered his testimony from the
preliminary hearing about Defendant's performance during the field sobriety
tests. We respectfully submit that Defendant's attacks on the weight
attributable to Officer Jones testimony are misplaced and, contrary to
Defendant's contention, Officer Jones' testimony was entitled to significant
weight in this case,
Concerning Officer Jones' testimony itself, he testified that he had
previously arrested approximately 30 to 40 individuals for driving under the
influence of alcohol. (Day III Tr. at 41-42.) He also attended training on
conducting field sobriety tests provided by the National Highway Safety
Commission and, approximately one month prior to trial, he was recertified on
conducting those tests. (Id, at 42, 43.)
Officer Jones testified that upon his arrival at the scene, he was
responsible for speaking to Defendant. (Id. at 44-45.) During his initial
interaction with Defendant, Officer Jones• observed that Defendant had glassy,
bloodshot eyes and had an odor of alcoholic beverage emanating from his
breath. (Id, at 45, 70-71, 75.) Based on these observations, Officer Jones
asked Defendant if he would perform field sobriety tests and Defendant
consented to perform the tests, (Id. at 45-46.)
Once Defendant consented, Officer Jones had Defendant perform the
finger-to-nose, walk-and-turn, and one-legged-stand tests along the roadway of
Page 13 of 41
Circulated 07/22/2014 03:10 PM
Route 512. (Id. at 46, 48.)6 During the walk-and-turn test, Officer Jones
observed that Defendant was raising his arms, Missed two heel-to-toe steps,
and was not able to stand on the line during his first step. (Id. at 50, 51.) As
for the one-legged-stand test, Officer Jones indicated that Defendant raised his
arms further than six inches from his body and was only able to stand for 15
seconds instead of the fun 30 seconds. (Id. at 51-) Based on, Inter alia, his
observations of Defendant and Defendant's performance during the field
sobriety tests, Officer Jones opined that Defendant was under the influence of'
alcohol and incapable of safely driving an automobile, (Id. at 54.)
While Defendant goes to great lengths in attempting to discredit Officer
Jones and references the testimony of other witnesses indicating that Defendant
was not visibly intoxicated, Defendant ignores the fact that Officer Jones was
the only officer specifically designated at the accident scene to assess whether•
Defendant was under the influence of alcohol, Regarding Officer Jones' lack of
knowledge about Defendant's medical history, Defendant correctly points out
that Officer Jones was unaware of Defendant's medical history and did not
gather any medical Information from other officers at the accident scene prior to
having Defendant perform the field sobriety tests. (Day III Tr. at 62-64.)
Nonetheless, Officer Jones attempted to determine whether Defendant had any
injuries or if he had any medical conditions that would have prevented him from
performing the tests, (Id. at 60, 62.) Despite Officer Jones inquiry, Defendant
6 The field sobriety tests were recorded and the video was played before the jury. (Day III
Tr. at 46.)
Page 14 of 41
Circulated 07/22/2014 03:10 PM
did not inform him of any disabilities, conditions, or injuries that would have
prevented him from performing the tests. (Id.)
Additionally, although Officer Jones admitted that he could not
differentiate between the symptoms of a hypoglycemic attack from the
symptoms of alcohol consumption, this would not warrant plaCing little weight
on his testimony. Instead, it would merely be one of the pieces of evidence for
the jury to fully •evaluate Officer Jones testimony in the context of the positions
offered by the Commonwealth and the defense.
As for Defendant's claim that Officer Jones relied upon inaccurate
information about the amount of alcohol he consumed prior to the accident, we
could not find any reference in the record to said inaccurate information,
Nonetheless, even if Officer Jones did mention (inaccurately or otherwise). the
precise amount of alcohol Defendant consumed, he did not include the amount
of alcohol consumed as part of the reason for determining that Defendant was
incapable of safe driving at the time of the accident. (Day III Tr. at 54.)
Regarding Defendant's performance during the field sobriety tests, even if
Officer Jones' trial testimony differed slightly from his preliminary hearing
testimony, this did not necessitate a determination that Officer Jones' trial
testimony was not entitled to significant weight. Regardless of which testimony
the jury believed was rnore credible, Defendant did not pass all three field
sobriety tests.
We also note that as part of Defendant's weight of the evidence claim, he
is essentially asserting that the evidence submitted on his behalf that he
Page 15 of 41
Circulated 07/22/2014 03:10 PM
suffered from a sudden hypoglycemic event that incapacitated him or rendered
hirn unconscious just prior to the accident, was entitled to more weight than the
Commonwealth's evidence dernonstrating his inability to safely operate the
vehicle. Defendant testified that he briefly lost consciousness just before the
crash, lost control of his bodily movements, and awoke mornents later.
(Transcript of Proceedings, Day V, 12-7-12 (Day V Tr."), at 53, 57.) Both Dr.
Robert Doll and Dr. Michael Cooperman, expert endocrinologists, testified that,
inter alia, (1) alcohol played no role in the accident, and (2) Defendant, who is
hypoglycemic, suffered from a precipitous drop in his blood sugar rending him
unconscious. (Day IV Tr. at 143, 148, 158, 160-61, 165, 168; Day V Tr. at
136, 149, 159.) Dr. Isadore Mihalakis, an expert in forensic pathology, also
testified that Defendant's blood alcohol concentration at the time of the accident
was 0.008 and he would not have been impaired by alcohol. (Day IV Tr. at 26-
36.)
Contrary to Defendant's claim, this testimony was not entitled to such
greater weight that to ignore them or to give them equal weight with all the
facts would deny justice. More specifically, Dr, Mlhalakis admitted that his
calculations were based on a typical individual of Defendant's body size, and he
could not reach a conclusion about Defendant's specific blood alcohol content
after learning that he had gastric bypass surgery. (Id. at 49-50, 54.) Dr.
Mihalakis also reluctantly admitted that the gastric bypass surgery causes
alcohol to absorb more rapidly and metabolize more slowly than In a typical
individual. (Id, at 47.)
Page 16 of 41
Circulated 07/22/2014 03:10 PM
In addition the testimony of Dr. Doll and Dr. Cooperman was not entitled
to great weight because it was based on Defendant's version of events prior to
the case, which lacked credibility. In this regard, Defendant reported no
incidents of blacking out prior to or since the accident at •issue in this case.
While at the scene of the accident, Defendant admitted to failing to tell anyone
there, or any of the officers later that day, about the medical event that he
alleged caused the accident. (Day V Tr. at 107.) Also, although he allegedly
lost consciousness, he specifically told EMT Finan that • he had not lost
consciousness and he was fine. (Day II Tr. at 162,) Moreover, the expert
testimony on the issue of accident reconstruction directly confficted with
Defendant's claim that he lost consciousness just prior to the trash and only
awoke afterwards to someone beating him about the head. (Id. at 49-50.) The
Commonwealth's accident reconstructionist testified that the yaw mark was
indicative of a volitional steering action immediately prior to the collision. (Id.
at 63, 66.) Dr. Doll admitted that a person who lost consciousness due to a
hypoglycernic event would riot be able to actively steer a vehicle. (Day IV Tr. at
177.)
Based on the above discussion, we respectfully submit that Defendant
was nbt entitled to a new trial in this case because certain facts were so clearly
of greater weight that to ignore them or to give them equal weight with all the
facts would deny justice. Thus, the verdict was not so contrary to the evidence
as to shock one's sense of justice.
Page 17 of 41
Circulated 07/22/2014 03:10 PM
M. This Court Did Not Commit a ivianifest Abuse of Discretion in
Sentencing Defendant
In his third and eighth matters complained of, Defendant contends that
we abused our discretion in imposing an aggregate sentence of state
confinement of a minimum of 37 months to a maximum of 118 months.
Defendant raises a plethora of claims relating to his claim that our sentence was
improper, As explained below, we did riot manifestly abuse our discretion in
imposing the sentence in this case.
The applicable appellate standard of review of a sentencing determination
is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a rnanifest abuse of discretion. In this context, an abuse of
discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (internal
citations and quotations omitted). In Commonwealth v. Walls, 926 A.2d 957
(2007), the Pennsylvania Supreme Court described the "rationale behind such
broad discretion and the concomitantly deferential standard of appellate review"
as follows:
[T]he sentencing court is in the best position to determine the
proper penalty for a particular offense based upon an evaluation of
the individual circumstances before it. Simply stated, the
sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing
coui-t enjoys an institutional advantage to appellate review,
bringing to its decisions an expertise, experience, and judgment
Page 18 of 41
Circulated 07/22/2014 03:10 PM
that should not be lightly disturbed, Even with the advent of the
sentencing guidelines, the power of sentencing is a function to be
performed by the sentencing court. Thus, rather than cabin the
exercise of a sentencing court's discretion, the guidelines merely
inform the sentencing decision.
Id. at 961-62 (internal citations and quotations omitted).
By statute, the appellate court must vacate a sentence and remand the
case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced. within the sentencing guidelines
but the case involves circumstances where the application of the
guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c). However,"DM all other cases the appellate court shall
affirm the sentence imposed by the sentencing court." Id.
Also, in analyzing a particular sentence, the General Assembly has
established ,four factors that an appellate court must consider: "(1) The nature
and circumstances of the offense and the history and characteristics of the
defendant[;] (2) The opportunity of the sentencing ,court to observe the
defendant, including any presentence investigation[;] (3) The findings upon
which the sentence was based[; and], (4) The guidelines promulgated by the
commission." Id. at § 9781(d). Thus, an appellate court may find a sentence
unreasonable after reviewing these four factors. Walls, 926 A.2d at 964.
Fu rthermore,
a sentence may also be unreasonable if the appellate court finds
that the sentence was imposed without express or implicit
Page 19 of 41
Circulated 07/22/2014 03:10 PM
consideration by the sentencing court of the general standards
applicable to sentencing found In Section 9721, 1.e,, the protection
of the public; the gravity of the offense in relation to the impact on
the victim and the community; and the rehabilitative needs of the
defendant.
Id. (citing 42 Pa.C.S. § 9721(b)).
Before proceeding with our analysis, we must first determine whether
Defendant presented a substantial question concerning the propriety of our
sentence in this matter. In this regard, we note that there is •no absolute right
to appeal the discretionary aspects of a sentence. Commonwealth v. Mouzon,
812 A.2d 617, 621 (Pa. 2002). Rather, allowance of an appeal raising such a
claim will be granted only when the appellate court with initial jur(sdiction over
such clairns determines that there is a substantial question that the sentence is
not appropriate under the Sentencing Code. Id. "A substantial question exists •
onlY when the appellant advances a colorable argument that the sentencing
judge's actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie the
sentencing process." CommornYealth v. Hyland, 875 A.2d 1175, 1183 (Pa.
Super. 2005) (internal quotations and citations omitted). The Superior Court
determines on a case-by-case basis whether a substantial question exists
concerning the propriety of a sentence. Commonwealth v. McNabb, 819 A.2d
54, 56 (Pa. Super. 2003).
We respectfully submit that Defendant has failed to present a substantial
question warranting review of his sentence in this case, In the first instance,
Defendant's claims raised in his third matter cornplained of, i.e. that we
Page 20 of 41
Circulated 07/22/2014 03:10 PM
allegedly discriminated against him because he (1) suffers from major
depression and NIPHS, (2) exercised his constitutional right to rernain silent at
the accident scene and while in police custody, and (3) maintained his
innocence throughout the trial. We have not located any Pennsylvania appellate
decision concluding that these clairns raise a substantial question. Additionally,
Defendant's claims in his eighth matter complained of are essentially
contentions that we should have considered various pieces of evicience as
mitigating evidence entitling Defendant to a lesser sentence. This also fails to
present a substantial question. See, e.g., Commonwealth v. Rhoades, 8 A.3d
912, 918-19 (Pa, Super. 2010)("[A]n allegation that the sentencing court failed
to consider mitigating factors does not raise a substantial question for
[appellate] review.").7
Nonetheless, presuming that the appellate court finds that Defendant has
presented a substantial question warranting appellate review of our sentence,
we respectfully submit that we did not commit a manifest abuse of discretion in
sentencing him in this case. - •In this regard, we thoroughly explained our
reasons for imposing the aggregate sentence of a minimurn of 37 rnonths to a
rnaximum of 118 months during the sentencing hearing in this case. (See
7 We recognize that Defendant phrases many of his arguments in terms of errors that we
allegedly rnade In reaching factual determinations based on the evidence presented at trial.
Nonetheless, Defendant Is essentially arguing that we should have believed all of the
evidence in his favor at the expense of the other unfavorable evidence. (See, e.g.,
Defendants Post-Sentence Motion Pursuant to Rule 720(B)(1)(a) of the Pennsylvania Rules
of Criminal Procedure at 40, 43 (Indicating that, as part of Defendants motion for
reconsideration of his sentence,"Nhe trial court ignored all of the aforementioned
mitigating medical evidence . . ., and requesting that "he should be sentenced within the
mitigated range of the sentencing guidelines for each criminal offense as a result of the
substantial mftigation evidence presented by the defense, and corroborated by the
Commonwealth's expert witness, at the trial of the wIthin matter").)
Page 21 of 41
Circulated 07/22/2014 03:10 PM
Sentencing Tr. at 71-76, 78.) In addition, we further explained our reasons for
imposing sentence and addressed almost all of Defendant's contentions
contained in his concise statement in pages 20 through 31 of our April 16, 2013
Opinion of the Court and Order resolving his post-sentence motions. Our
conclusions, including any credibility determinations, contained therein are
wholly supported by the record. We submit that the sentencing transcript and
our opinion resolving the post-sentence motions are the places in the record
where we address alrnost all of Defenciant's claims concerning his sentence.
As for the claims that we did not specifically address, in his third matter
complained of Defendant asserts that we allegedly discriminated against him
because he (1) suffers from major depression and NIPHS, and (2) exercised his
constitutional right to remain silent at the accident scene and •while in police
custody.8 There Is no evidence in the record to support either of these claims.
We also note that in regard to Defendant's claim that we discriminated
against him for allegedly exercising his right to remain silent at the accident
scene, he has not specified how we allegedly discriminated against him or how
we used his alleged assertion of his right to remain silent against him. Although
Defendant has failed to specify how we discriminated against him, it is possible
that Defendant is referring to our reliance on a couple of instances where
Defendant seemingly chose to omit details while speaking to the police when
9 Defendant also references the Court allegedly discriminating against him because he
supposedly exercised his right to remain silent in his eighth matter complained of. In
addition, in his third cialm of error, Defendant indicates that we discriminated against him
for maintaining his innocence throughout these proceedings. We previously addressed this
unsubstantiated and meritiess claim in our opinion resolving his post-sentence motions.
(See 4-16-13 Opinion of the Court at 29-30.)
Page 22 of 41
Circulated 07/22/2014 03:10 PM
we provided our reasons for imposing the sentence: More specifically, in our
9
opinion resolving his post-sentence motions, we Indicated that although
Defendant Informed the police what he had been doing prior to the time of the
accident, he selectively failed to inform the police that he had just come from a
bar and had been consuming alcohol there. We recognize that Defendant did
not have to provide any voluntary statements to the police and could have
exercised his constitutional right to• remain silent, but he voluntarily chose to
speak to the police and omitted a significant detail of his day's activities when
he did so. His failure to mention having just visited a bar and having consurned
alcohol prior to the accident demonstrated a consciousness of guilt and added to
an overall lack of credibility concerning his version of events.
Additionally, despite describing volunteering to the police information
about some of his physical disabilities, Defendant never inforrned the police that
he had blacked out or experienced any other medical event just prior to the
accident. Once again, Defendant was not exercising his right to remain silent
when, instead of explaining to the police that he allegedly suffered some sort of
9 We also clearly relied on what Defendant said to the police at the accident scene as part of
judging Defendant's credibility and disbelieving his version of events. In this regard, and as
pointed out in our April 15, 2013 opinion, during Defendant's interaction with the police at
the accident scene, he immediately attempted to place blame for the accident on the
victims. (See, e.g., Day I Tr., Testimony of Tammy Morris, at 23 (testifying that she
overheard Defendant tell the police "that the bikers came on his side and, that they were
probably drunk, and he wasn't drunk); Day II Tr., Testimony of Chief Robert Mulligan, at 88
(testifying that he asked Defendant what happened at accident scene and although
Defendant started to respond that he veereci a little and the motorcyclists hit him head en,
Defendant corrected himself and told Chief Mulligan that motorcyclists veered Into hlm);
Day II Tr., Testimony of Chief Robert Mulligan, at 100 & Commonwealth's Exhibit 9
(Defendant's voluntary written statement to East Bangor Police Department in which he
states that he was traveling eastbound when "[he] was struck by a motorcycle that
appeared to be passing" (emphasis added)),) Defendant also immediately started telling
the police about his extensive history as a police officer, which we determined was an
attempt to curry favor with the other officers.
Page 23 of 41
Circulated 07/22/2014 03:10 PM
significant medical event, he decided.to falsely accuse the victims of causing the
accident.
As shown above, Defendant was not exercising his right to remain silent
when he voluntarily decided to talk to the police and omit certain pieces of
information. Thus, we respectfully submit that we properly considered the
aforementioned evidence in fashioning an appropriate sentence in this case.
IV. This Court Did Not Abuse Our Discretion in Denying Defendant's
Motion for a Mistrial
In his fourth matter complained of, Defendant argues that we erred in
denying the "joint Motion for Mistrial after the jury foreman advised the Court
that the jury was hopelessly deadlocked." (Statement of Matters Complained
of on Appeal Pursuant to Pa.R.A.P. 1925(b) at 4 (emphasis added).) Defendant
contends that the jury's requests to have the criminal charges re-read to them
on "six" occasions demonstrates that the jurors were "confused." (Id.)
Defendant also asserts that the Court's Allen charge did not eliminate the jury
confusion and.resulted in a "conflicting, incomprehensible verdict that acquitted
[him] of all felony charges, and convicted him of all misdemeanor charges."
(Id.) Thus, the verdict was "predicated upon impermissible speculation,
conjecture, guesswork, and surmise by the jury," which violated Defendant's
rights under the United States and Pennsylvania Constitutions. (Id. at p. 5.) As
discussed below, this allegation of error lacks merit.
Pennsylvania Rule of Criminal Procedure 605 states that "[w)hen an event
prejudicial to the defendant occurs during trial only the defendant may move for
a mistrial; the motion shall be made when the event is disclosed. Otherwise the
Page 24 of 41
Circulated 07/22/2014 03:10 PM
trial judge may declare a mistrial only for reasons of rnanifest necessity."
Pa.R.Crim.P. 605, Also, "[a] trial court has the authority to abort a trial, and
the double jeopardy clause will not prevent a retrial, [i]f the trial court takes all
the circumstances into consideration and in its sound discretion finds that there
is a manifest necessity for the act, or the ends of public justice would be
otherwise defeated." Commonwealth v, Stewart, 317 A,2d 616, 619 (Pa. 1974)
(citations and internal quotations omitted). However, any doubt relative to the
existence of manifest necessity should be resolved in favor of the defendant.
Commonwealth v, Balog, 576 A.2d 1092, 1095 (Pa. Super. 1990). "The
decision to grant a mistrial and the length of the deliberation of a jury is
properly left to the sound discretion of the trial judge, and will not be disturbed
absent an abuse of that discretion." Commonwealth v. Young, 35 A.3d 54, 60
(Pa. Super. 2011) (citations ornitted).
Regarding a finding of manifest necessity,
[o]ur supreme court has intentionally avoided establishing a catalog
of situations in which a mistrial is dictated by manifest necessity,
and has instead stated that each case must "turn on the particular
facts'. However, there are certain circumstances in which the
courts commonly grant a rnistrial for manifest necessity . , . . [T]he
most frequently encountered circumstance constituting manifest
necessity, and thus justifying discharging a jury without placing the
defendant twice in jeopardy, is the inability of the jury to agree on
a verdict such that the jury is hopelessly deadlocked. In such cases
a mistrial is the natural result of the practical inability of the original
tribunal to complete the trial.
Nevertheless, if there Is any doubt that a deadlocked jury
exists, then rnanlfest necessity for a mistrial is not present.
Balog, 576 A.2d at 1095 (internal citations omitted); see Cornmonwea/th v.
Monte, 329 A.2d 836, 840 (Pa. 1974) (indicating that "a genuine inability of a
Page 25 of 41
Circulated 07/22/2014 03:10 PM
jury to agree constitutes a 'manifest necessity to declare a mistrial over a
defendant's objection without offending the defendant's Fifth Amendment
rights," and explaining that "[a] genuine inability of a jury to agree upon a
verdict occurs if It appears to the trial court that there is no reasonable
probability of agreement").
Here, the Commonwealth charged Defendant with seven separate
criminal offenses, all but one of which had multiple counts as they pertained to
multiple alleged victims. The Court properly instructed the jury on the law
pertaining to these offenses and then provided counsel with the opportunity on
two occasions to request any further instructions or clarifications before
excusing the jury to begin deliberations. (Day VI Tr. at 10-38.) After the jury
deliberated for a few hours, the jury requested that the Court re-instruct them
on the elements of the seven offenses. (Id. at 39-40; Court Exhibit 1.) In
accordance with the request, we re-instructed the jury on the charged offenses.
(Day VI Tr. at 40-51.)
A while later, the jury indicated that it had a second question relating to
the elements for Homicide by Vehicle and Involuntary Manslaughter. (Id. at 52;
Court Exhibit 2.) The jury also sought to be re-instructed on the charge of
Driving Under the Influence - General Impairment/Incapable of Safe Driving.
(Day VI Tr. at 52; Court Exhibit 3.) To comply with the jury's requests, we re-
instructed the jury on the elements of Homicide by Vehicle, Involuntary
Manslaughter, and Driving Under the Influence - General Impairment/Incapable
of Safe Driving. (IDay VI Tr. at 52-58.)
Page 2 of 41
6
Circulated 07/22/2014 03:10 PM
At approximately 9:39 p.m., after deliberating for approximately eight
hours, the jury supplied a note to the Court stating that "[w]e are unable to
reach a unanimous decision on all counts," which the foreperson signed. (Id. at
58-59; Court Exhibit 4.) During a conference with counsel, Defendant moved
for a mistrial. (Day VI Tr. at 59.) Contrary to Defendant's reference in his
concise statement, the parties did not "joint[ly] move for a rnistrial. Instead,
after Defendant moved for a mistrial, we asked the Commonwealth whether it
was in agreement and the Commonwealth stated that it was not in agreement,
(Id.)
After concluding the conference with counsel, we brought the jury into the
courtroom and asked the foreperson whether it would assist the jurors if they
concluded deliberations for the day and resumed deliberations in the morning.
(Id. at 60-61.) In response to our question, the foreperson stated as follows:
We've had a dead lock [sic] for quite a number of hours. The dead
lock [sic] hasn't changed. Maybe tomorrow we will feel better, but
tonight I think most of us feel that it's unlikely we're going to make
any change tonight, and whether well make a change tomorrow, I
could not say. But our deadlock has not changed in hours.
(Id. at 61.) The foreperson also stated that it would possibly be helpful to
resume deliberations in the morning. (Id.)
We then asked the jurors to raise their hand if they believed that "coming
back tomorrow would be something that would be worthwhile and would be
Page 27 of 41
Circulated 07/22/2014 03:10 PM
helpful." (Id.) At that point, four jurors, including the foreperson, raised their
ha nds. (Id.)"
After the jury poll, we had a sidebar conference with counsel during which
the Commonwealth indicated that if the jury had reached a unanimous verdict
on some, but not all of the counts, the Commonwealth would accept a decision
on whichever counts the jury reached a unanimous verdict. (Id. at 62.)
Defendant opposed the Commonwealth's proposal and again moved for a
mistrial. (Id.) Since some of the jurors indicated that continuing deliberations
in the morning could be fruitful, we excused the jurors for the evening so that
they could continue deliberating in the morning.
On Tuesday morning, we read the jury a "dynamite" charge in accord with
Allen v. United States, 17 S. Ct. 154 (1896) and, in response to another note
from the jury, we re-instructed the jury on the elements of Involuntary
Manslaughter, (Transcript of Proceedings, Day VII, 12-11-12(Day VII Tr), at
2-6; Court Exhibit 5.) The jury then came back with one final question, asking
to be re-instructed on the elements Driving Under the Influence - General
Impairment/Incapable of Safe Driving. (Day VII Tr. at 6; Court Exhibit 6,) We
re-instructed the jury on those elements and again excused them .to resume
10 We recognize that the transcript does not expressly state that four jurors raised their
hands. However, even without our recollection of the four individuals raising their hands,
the transcript does include references to the four individuals. (See Day VI Tr. at 62
(statement by Defendants counsel that "[e]ight of them look like they dont want to do this.
They think it's a waste of time"); see id. at 66-67 (Court referencing that "at least a third"
of jurors that wanted to resume deliberations in morning, noting foreperson was one of
those jurors, and indicating that "three or four other people . . were raising their hands
who still thought [resuming deliberations in the morning] might be helpful).)
Page 28 of 41
Circulated 07/22/2014 03:10 PM
their deliberations. (Day VII Tr. at 6-9.) Shortly thereafter, the jury reached a
unanimous verdict on all charges. (Id. at 9-12.)
We respectfully submit that we did not commit an abuse of discretion in
refusing to declare a mistrial when the foreperson indicated that the jury was
unable to reach a unanimous decision on all counts. As indicated above,
Defendant misrepresents what happened during the deliberations. In the first
instance, there was no joint motion by the defense and the Commonwealth for a
mistrial. Secondly, the foreperson never stated that the jury was "hopelessly"
deadlocked. Instead, although the note from the jury stated that they were
unable to reach a unanimous decision on all counts, the foreperson and at least
three other jurors believed that continuing deliberations in the morning would
potentially result in a unanimous verdict. Thus, manifest necessity did not exist
for the Court to declare a mistrial at that time because there was not Ma
reasonable probability that the jury would not be able to agree" on the charges.
We recognize that at the time Defendant moved for a mistrial, the jury
had asked to be reinstructed on the elements for each of the charges on one
occasion, and then requested to be reinstructed on three of the charges on a
second occasion. Also, as indicated above, the jury had been deliberating for
approximately eight hours and it was late in the evening when the foreperson
indicated in the jury's note that they had been unable to reach a unanimous
verdict. Nonetheless, the length of time of the deliberations in this case was
not a reason, in itself, to find that there was manifest necessity to declare a
mistrial.
Page 29 of 41
Circulated 07/22/2014 03:10 PM
In this regard, we'note that
[t]here are too many variables in the trial of criminal cases which
would prevent the formulation of predetermined periods of time for
the jury's deliberation. Each case differs in the complexity of the
issues presented, the seriousness of the charges, the number of
charges to be considered, the amount of testimony to be digested
and reviewed, thus requiring the reasonableness of the time for
deliberations to be made on a case-by-case basis.
)
Commonwealth v. Monte, 329 A.2d 836, 840 (Pa. 1974.
In this case, the parties had presented more than five days of testimony
and more than thirty witnesses. Some of those witnesses were expert
witnesses that provided extensive testimonY regarding, inter- alia, accident
reconstruction and medical information about hypoglycemia, gastric bypass
surgery, and forensic pathology. Based on the evidence presented by these
witnesses, the jury had to resolve cornplex legal issues concerning whether
Defendant was intoxicated to the point that he was unable to safely operate his
vehicle at the time of the accident or whether.he suffered from another event
(such as a hypoglycemic episode) that caused him to black out and enter the
opposing lane of travel, In addition, •the jury had to determine whether the
evidence presented satisfied the elements of seven separate criminal offenses
(over 19 counts in total) beyond a reasonable doubt. Among those offenses
were two •offenses graded as felonies of the second degree (Homicide by Vehicle
While Driving Under the Influence and Aggravated Assault by Vehicle While
Driving Under the Influence), two offenses graded as felonies of the third
degree (Homicide by Vehicle and Aggravated Assault by Vehicle), and a
misdemeanor of the first degree (Involuntary Manslaughter). As such, the
Page 30 of 41
Circulated 07/22/2014 03:10 PM
charges themselves were very serious. Therefore, there was nothing about the
nature of the case itself that warranted a determination of manifest necessity
simply based on the length of time of the jury's deliberations. But see Id.
(concluding trial court properly found manifest necessity to declare mistrial
where only two indictments were submitted for determination, charges were
"comparatively minor," issues to be determined were not cornplex, and "six and
one-half hours was a reasonable period in which to accept the jury's conclusion
that they were hopelessly deadlocked").
Finally, despite Defendant's contentions to the contrary, there was
nothing in the record to indicate that the jurors reached a "conflicting" or
"incomprehensible" verdict because the Court denied Defendant's motion for a,
mistrial. In the first place, even if the verdict was "inconsistent," If there is
sufficient evidence to sustain the convictions "under longstanding federal and
state law, [the inconsistent verdicts] are allowed to stand." Commonwealth v.
Miller, 35 A.3d 1206, 1208 (Pa. 2012) (citations omitted). We have already
explained that the Commonwealth introduced sufficient evidence to sustain the
verdicts in this case. As such, a claim that the verdicts were inconsistent here
would not warrant vacating the jury's decision in this case.
In addition, even if the consistency of this verdict was reviewable, we
have already noted the complexities in this case and pointed out the jurors'
desire to be reinstructed on the law on four occasions.n Based on the fact that
11 At no point in time did Defendant object to any of our instructions (including the
'dynamite" charge), request any additional instructions, or seek clarification of our
instructions,
Page 31 of 41
Circulated 07/22/2014 03:10 PM
the jurors did not have written instructions before them, it was neither
unreasonable nor unexpected for them to ask that the Court reinstruct them on
- the offenses in the first place, nor was it unreasonable or unexpected for the
jurors to ask for reinstruction on some of the offenses on three other instances,
Moreover, the verdict, while possibly unanticipated by the parties, was not
incomprehensible because the jury could find Defendant guilty of Driving Under
the Influence but not find that his intoxication caused the deaths of Keith
Michaelson and Michael Zadoyko. Further, the jury could have found that
Defendant's conduct operating the vehicle was reckless or grossly negligent
when the evidence showed that Defendants vehicle was fishtailing, crossed
over the double yellow line, and continued entirely in the wrong lane of travel
prior to crashing into the motorcycle group. (Transcript of Proceedings, Day I,
12-3-12, at 35, 40-42, 51; Transcript of Proceedings, Day II, 12-4-12, at 9.).
Therefore, we respectfully submit that there was nothing about our "dynamite"
charge that resulted in a conflicting or incomprehensible verdict.
V. The Court Did Not Err in ReSolving Defendant's Motionin Limine
In his fifth matter complained of, Defendant contends that we erred by
denying his Motion in Limine to preclude Mitchell Roslin, M.D. to testify on
behalf of the Commonwealth at trial. Defendant argues that by permitting Dr.
Roslin to testify, the Court permitted the jury to render a speculative decision
concerning his state of sobriety at the time of the accident. As discussed below,
these arguments lack merit.
Page 32 of 41
Circulated 07/22/2014 03:10 PM
In Defendant's Motion in Limine, he first asserted that Dr. Roslin did not
express his opinions in his report to a reasonable degree of medical certainty.
(Motion in Limine at 'Pi 6-9.) Regarding expert testimony, Rule 702 of the
Pennsylvania Rules of Evidence states that
£111 scientific, technical or other specialized knowledge beyond that
possessed by a layperson will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training or education
may testify thereto in the form of an opinion or otherwise.
Pa.R.E. 702(2012 Ed.).12 Concerning the sufficiency of an expert's opinion,
expert testimony is sufficient to support a finding when given with a
reasonable degree of medical certainty. See Commonwealth v.
Baez, 554 Pa. 66, 720 A.2d 711, 727 (1998). "The expert has to
testify ... that in his professional opinion the result in question
came from the cause alleged. A less direct expression of opinion
falls below the required standard of proof and does not constitute
legally competent evidence." Menarde v. Philadelphia Transp. Co.,
376 Pa. 497, 103 A.2d 681, 684 (1954). In analyzing a challenge to
a medical expert's testimony, experts are not required to use
"magic words." Baez, 720 A.2d at 727. "Instead, we look to the
substance of their testimony to determine whether it meets the
requisite standard." Id. Furthermore, an appellate court will not
reverse a trial court's determination that a witness is qualified to
testify as an expert unless we find an abuse of discretion;
Commonvvealth v. Arroyo, 555 Pa. 125, 723 A.2d 162, 171 (1999).
Commonwealth v. Davido, 868 A.2d 431, 441 (Pa. 2005).
Here, Defendant initially based his motion on the information contained in
Dr. Roslin's report. Prior to trial, the Commonwealth indicated that it was not
going to introduce Dr. Roslin in its case-in-chief; instead, the Commonwealth
was seeking to introduce Roslin as a rebuttal witness to rebut the testimony
12 This is the text of Rule 702 at the time of the trial in this matter. We recognize that Rule
702.was amended on January 17, 2013.
Page 33 of 41
Circulated 07/22/2014 03:
from Defendant's expert witnesses. The Commonwealth confirmed this
intention during a conference after the first day of trial. (Day I Tr'. at 54.)
During this conference, the parties also indicated that they were going to
conduct a video deposition of Dr. Roslin. (Id.) Since the parties were going to
conduct a video deposition, we deferred ruling on the Motion in Limine until the
•parties completed, and we had an opportunity to review, the video-recorded
deposition. (Id. at 54-55.)
The parties deposed Dr. Roslin during in the evening on the second day of
trial, and we received a copy of the deposition transcript at the conclusion of the
fourth day of trial. (Day IV Tr. at 187.) We then reviewed any objections to Dr.
Roslin's testimony and ruled on those objections after the Cornmonwealth and
defense had rested. (Day V Tr. at 179-86.)
Although Defendant objected to the certainty of some alleged opinions by
Dr. Roslin as those opinions were referenced in his report, Defendant posed only
one such objection during Dr. Roslin's deposition." Since we clearly indicated
to counsel that we would base any rulings on the deposition testimony, we
submit that Defendant has waived most of his claims that we erred in
permitting Dr. Roslin to testify due to the lack of certainty in his opinions, See
13 The only instance of an objection occurred after Dr. Roan responded to the following
question posed by Defendant's counsel: "You can nod off frorn eating a Philly cheese steak
and your stomach is trying to digest it; couldn't that happen?" (Vicleotapedbeposition of
Mitchell Roslln, M.D., 12-4-12 CRoslin Dep."), at 75.) As indicated in more detail below, we
submit that we properly determined that Defendant opened the door to a less-than-certain
answer by Dr. Roslin by asking a question that was wholly speculative.
Page 34 of 41
Circulated 07/22/2014 03:10 PM
Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot
be raised for the first time on appea1.").14
To the extent that the appellate court were to conclude that Defendant
preserved any claims concerning the certainty of Dr. Roslin's testimony, the
transcript frorn his deposition shows that he testified that his opinions were to
the requisite degree of medical certainty. (See, e.g., Roslin Dep. at 24-27, 31,
34-35, 92.)15 In this regard, Dr. Roslin testified that to a reasonable degree of
medical certainty that, Inter alia, (1) Defendant would have absorbed alcohol
differently (i,e. more rapidly) than an individual that did not have gastric bypass
surgery, (2) a gastric bypass patient will have a higher blood level of alcohol
than an individual that did not have gastric bypass surgery after consuming the
same amount of alcohol, and (3) Defendant did not suffer a severe
hypoglycemic attack resulting in syncope (i,e. fainting) on the date of the
accident. (See Id.)
Defendant's other claim was that Dr. Roslin's testimony was irrelevant
and, even if it had some probative value, its allegedly limited probative Value
was outweighed by the danger or unfair prejudice, confusion of the issues or
misleading the jury. (Motion in Lirnine at 1111 22-25.) This argurnent also lacks
merit.
As indicated above, Dr. Roslin testified in rebuttal of the testimony by Dr.
Isadore Mihalakis, Dr, Michael Cooperman, and Dr, Robert Doll. The admission
14
We also note that Defendant did not object to Dr. Roslin's qualifications to testify as an
expert in the field of barfatric surgery. (Videotaped Deposition of Mitchell Roslin, M.D., 12-
4-12 ("Rosiin Dep."), at 16.)
15 Defendant never objected that any of Dr. Roslin's opinions were outside of the scope of
the information provided in his expert report.
Page 35 of 41
Circulated 07/22/2014 03:10 PM
of rebuttal testimony is within the sound discretion of the trial court. See
Commonwealth V. Jones, 610 A.2d 931, 942 (Pa. 1992)(discussing admissibility
of rebuttal evidence); see also Commonwealth v. Reid, 811 Pad 530, 550 (Pa.
2002) (explaining that generally, admission of evidence is within sound
discretion of trial court). "An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied or
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the record, discretion is
abused." Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006)
(en banc) (citation omitted).
Also, "Whe appropriate scope of rebuttal has always been defined
according to the evidence that it is offered to rebut." Commonvvealth v. Hughes,
865 A.2d 761„ 797 (Pa. 2004) (citing Commonwealth v. Hickman, 309 A.2d
564, 567 (Pa. 1973) ("It is not proper to submit on rebuttal, evidence which
does not in fact rebut the opponent's evidence.")). Furthermore, "El]t is entirely
proper for a rebuttal witness to testify about facts which discredit an opponent's
witness's opinions." Mitchell v. Gravely Intl, Inc., 698 A.2d 618, 621 (Pa.
Super. 1997)(citation omitted).
"The threshold inquiry for the admission of evidence is whether particular
evldence is relevant/I Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008)
(citations omitted). "Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
Page 36 of 41
Circulated 07/22/2014 03:10 PM
evidence." Pa.R.E. 401. Although all relevant evidence is admissible, "evidence
may be excluded if its probative value is outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence," Pa.R.E. 402, 403, The term "unfair prejudice" means
a tendency to suggest decision on an improper basis or to divert
the jury's attention ,away from its duty of weighing the evidence
Additionally, when weighing the potential for prejudice,
a trial court may consider how a cautionary jury instruction might
ameliorate the prejudicial effect of the proffered evidence.
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (internal citations and
quotations omitted), Nonetheless, "[e]vidence will not be prohibited merely
because it is harmful to the [party seeking its exclusion]." Id. Instead,
"exclusion is limited to evidence so prejudicial that it would inflame the jury to
make a decision based upon something other than the legal propositions
relevant to the case." Commonwealth v, Owens, 929 A.2d 1187, 1191 (Pa.
Super, 2007)(citation omitted).
Here, contrary to Defendants arguments, Dr. Roslin's testimony was
relevant rebuttal testimony. As indicated above, Dr. Roslin's testirnony rebutted
the testimony by Dr. Mihalakis, Dr. Cooperman, and Dr. Doll. Dr. Mihalakis
testified in response to a hypothetical question that an Individual matching
Defendant's profile who consumed the amount of alcohol and food that
Defendant consumed prior to the accident would have had a 0.001 blood alcohol
level and would not have been impaired at the time of the accident. (Day IV Tr.
Page 37 of 41
Circulated 07/22/2014 03:10 PM
at 26-36.)16 Dr. Mihalakis also testified that alcohol absorbs "somewhat more
rapidly" in individuals whom have had gastric bypass surgery. (Id, at 43.)
As for Dr. Cooperman, he opined that, inter &la, (1) Defendant had
noninsulinoma pancreatagenous hypoglycemia. syndrome ("NIPHS"), (2) the
cause of the crash was "an acute and abrupt episode'of hypoglycemia leading to
cognitive impairment,"(3) Defendant suffered from art "abrupt and acute" drop
in blood sugar causing mental confusion and possibly visual confusion and
disordered activity, and (4) alcohol played no role in the .accident. (Day IV Tr.
at 143, 148, 158, 160-61, 165, 168.) Dr. Doll testified that, inter alia, (1)
alcohol was not the cause of the accident, (2) the cause of the accident was
Defendant's hypoglycemia resulting in significant neuroglycopenic difficulties,
and (3) Defendant could not have voluntarily controlled or avoided the accident.
(Day V Tr. at 136, 149, 159.)
Dr. Roslin's testimony was relevant to rebut the testimony of the three
doctors. His testimony concerning the absorption rate of alcohol in gastric
bypass patients rebutted Dr. Mihalakis's testimony that alcohol absorbs only
"somevvhat more rapidly" in those individuals. Additionally, Dr.. Roslin
specifically rejected Dr. Doll and Dr. Cooperman's opinions that a hypoglycemic
event caused the accident.
The probative value of the aforementioned testimony was also not
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. As indicated above, Dr. Roslin's opinions were all authored
16 Dr. Mihalalds further testified that even if Defendant's blood alcohol level was doubled to
0.02, he would not have been impaired at the time of the accident. (Day IV Tr. at 49.)
Page 38 of 41
Circulated 07/22/2014 03:10 PM
to the requisite degree of medical certainty and there is no indication that they
unfairly prejudiced Defendant, confused the issues, or otherwise misled the
jury. Simply because Defendant believes that his experts were more believable
or that the jury should have (or did) give greater weight to his experts did not
create unfair prejudice, confuse the issues, or rnislead the jury. Accordingly, for
the reasons set forth above, we respectfully submit that we properly permitted
Dr. RosHn to testify in rebuttal in this case.17
VI. •The Court Did •Not Err in Awarding $194/226.59 in Restitution
In his sixth matter complained of, Defendant argues that we ,erred in
ordering him to pay restitution in the amount of $194,226.59. Defendant
alleges that we erred by (1) not requiring the Commonwealth to provide
17 In addition to his argurnents concerning the certainty of Dr. Roslin's opinions and the
relevancy of his testimony (when compared to the potential for unfair prejudice), Defendant
was also concerned with, Inter alia, Dr, Roslin (1) opining that Defendant was intoxicated at
the time of the accident, (2) opining that Defendant was experiencing a "buze at the time
of the accident, (3) opining that the likely cause of the accident was due to Defendant
failing asleep or closing his eyes and then drifting into the opposite lane of travel, and (4)
relying on the results of a portable breath test ("PBT") to support his opinion. (Motion in
Lin-line at ¶ 8, 26-35; Day I Tr. at 54-55.) Defendant also claimed that Dr. Roslin was
going to render an impermissible opinion that would Intrude upon the province of the jury.
(Motion in Limine at 36-43.)
None of these concerns becarne an issue requiring resolution for the following
reasons: First, Dr. Roslin did not testify that he relied upon a PBT in rendering his opinions.
Second, we could not locate any reference to Dr. Rosiln using the term "buzz" in his
deposition testimony. Third, as to the opinions relating to Defendant's level of intoxication
and possibility that he either fell asleep or closed his eyes while driving, neither of those
opinions were elicited on direct examination by the Commonwealth. Dr. Roslin never opined
that Defendant was intoxicated at the time of the accident, and Defendant brought out on
cross-exarnination that Dr, Roslin was not stating to a reasonable degree of medical
certainty that Defendant was intoxicated at the time of the accident. (Roslin Dep. at 40,
45.) Fourth, Defendant (and not the Commonwealth) brought up Dr. Roslin's opinion
concerning the possibility that Defendant drifted into the opposing lane of travel after falling
asleep or closing his eyes. (Roslin Dep, at 71-76.) Defendant even opened the door to Dr.
Roslin discussing this particular opinion by asking him a question that called for a
speculative answer. (Id. at 75-76.) Finally, a thorough examination of Dr. Roslin's
testimony shows that he did not Issue any opinion on the ultimate issue to be decided in the
case or otherwise issue an impermissible legal opinion. Instead, his opinions were in direct
response to the experts that testified on Defendant's behalf.
Page 39 of 41
Circulated 07/22/2014 03:10 PM
documentation of the (a) reasonableness or necessity of any medical care or
treatment arising from the July 1, 2011 motor vehicle accident,(b) actual dollar
amount paid by each accident victim and insurance carrier for said medical care
and treatment, (2) failing to examine the amount of medical bills discharged,
forgiven, or written off by the medical and health care providers treating each
victim, and (3) pointing out that "Defendant has yet to request a restitution
hearing."
When a trial court orders restitution, this restitution "is not simply an
award of damages, but, rather, a sentence." Commonwealth v, C.L., 963 A.2d
489, 494 (Pa. Super. 2008)(citation omitted). Thus,
[a]n appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing.
Commonvvealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004),
appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005). "[T]he
determination as to whether the trial, court imposed an illegal
sentence is a question of law; our standard of review in cases
dealing With questions of law is plenary." Commonwealth v.
Hughes, 986 A.2d 159, 160 (Pa. Super. 2009)(citation omitted).
Commonwealth v. Atanasio, 997 A.2d 1181, 1184 (Pa. Super. 2010).
We addressed Defendants claims relating to the restitution amount in this
case in pages 32 and 33 of our April 16, 2013 Opinion of the Court. As such,
that is the place in in the record where the appellate court may review our
reasons for denying Defendant's post-sentence motion challenging the amount
of restitution ordered in this case.18
18At the time we resolved Defendant's post-sentence motions, we dld not recognize his
request for a restitution hearing contained ln paragraph 45 of the post-sentence motions.
To the extent the appellate court determines that Defendant is entitled to such a hearing,
Page 40 of 41
Circulated 07/22/2014 03:10 PM
VII. This Court Did Not Err in Denying Defendant's Omnibus Pretrial
Motion in the Nature of a Motion to Suppress
For his seventh matter complained of, Defendant alleges that we erred in
denying the motion to suppress contained in his Omnibus Pretrial Motion for Relief.
The appellate standard of review from denials of suppression motions is "limited to
determining whether the factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct." Commonwealth v.
De3esus, 860 A.2d 102, 112 (Pa. 2004)(citation omitted).
As indicated above, we resolved Defendant's motion to suppress in an
Opinion of the Court and Order entered on March 14, 2012, which is the place in
the record where the appellate court rnay review our reasons for denying
Defendant's rnotion to suppress. We respectfully submit that we properly denied
the motion insofar as the factual findings contained in our opinion are supported by
the record arid our legal conclusions drawn therefrom are correct.
BY THE COURT:
kit46o0
PAULA A. ROSCIOLI, J.
we respectfully request that the court vacate the award of restitution and remand this
rnatter for a new hearing on the proper amount of restitution.
Page 41 of 41