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COMMONWEALTH PENNSYLVANIA v. DAVID THARP (03/07/88)

submitted: March 7, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID THARP, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE SEPTEMBER 2, 1987 IN THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY, CRIMINAL No. CR 85-720

COUNSEL

Melissa L. Norton, Assistant Public Defender, Sunbury, for appellant.

David D. Noon, Assistant District Attorney, Sunbury, for Com., appellee.

Cirillo, President Judge, and Brosky and Tamilia, JJ.

Author: Cirillo

[ 373 Pa. Super. Page 287]

This is an appeal from a judgment of sentence following the denial of appellant David Tharp's post-trial motions in arrest of judgment and for a new trial. He was convicted of permitting a violation of Title 75, the Motor Vehicle Code. We reverse.

At the end of their shift at 1:00 a.m. on October 26, 1985, David Tharp drove himself and a co-worker, Steven Scoviak, to a bar. Tharp's eyes were bothering him as a result of

[ 373 Pa. Super. Page 288]

    his first day on a welding assignment and he did not want to drive any more that night. After consuming several beers, they left the bar and Scoviak drove the two men to a friend's house. Leaving the keys in the ignition, they both attended the friend's party. Scoviak continued to drink there and does not remember driving several hours later. Tharp testified that at about 3:30 a.m. he went out to his car and fell asleep on the front passenger seat, intending to stay there until morning. He testified that instead, the impact of the collision of his car with a bridge just prior to 6:00 a.m. woke him. Pennsylvania State Police investigated the single car accident and determined that Scoviak had been driving. They arrested Scoviak for driving under the influence, a violation of 75 Pa.C.S. § 3731(a)(1) of which he was later convicted. Tharp was also arrested for permitting that offense in violation of 75 Pa.C.S. § 1575(a), which reads:

No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title.

On appeal Tharp claims the trial court erred in its instructions to the jury, specifically in its refusal of two proposed points for charge submitted by the defense. Tharp claims prejudice because the jury rendered a verdict without having the benefit of instructions on all of the applicable points of law. The Commonwealth argues that the evidence proved, and the jury charge included, the two requisite elements of the offense: permission by the owner for another to drive and a violation by the driver of a provision of Title 75.

[ 373 Pa. Super. Page 289]

In determining whether the trial judge committed an abuse of discretion or an error of law, we consider the charge as a whole in light of the evidence presented. Papandrea v. Hartman, 352 Pa. Super. 163, 507 A.2d 822 (1986). If an error is found to have been committed, we will reverse the trial court's decision not to grant a new trial only where such error has been clearly prejudicial to the appellant. Lokay v. Lehigh Valley Cooperative Farmers, Page 289} Inc., 342 Pa. Super. 89, 492 A.2d 405 (1985); Mickey v. Ayers, 336 Pa. Super. 512, 485 A.2d 1199 (1984). Refusal of a requested point for charge is proper where it does not represent an applicable, accurate statement of the law. Crotty v. Reading Industries, Inc., 237 Pa. Super. 1, 345 A.2d 259 (1975). Even where a requested instruction is relevant, a trial court need not include it if the charge ...


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