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COMMONWEALTH PENNSYLVANIA v. DARVIN BRITCHER (08/10/89)

filed: August 10, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DARVIN BRITCHER, APPELLANT



Appeal from the Judgment of Sentence entered February 18, 1988 in the Court of Common Pleas of Perry County, Criminal Division, No. 63 of 1987.

COUNSEL

Daniel W. Stern, New Bloomfield, for appellant.

Gloria J. McPherson, Asst. Dist. Atty., Shermans Dale, for Com., appellee.

Beck, Kelly and Hester, JJ.

Author: Kelly

[ 386 Pa. Super. Page 519]

A jury convicted appellant, Darvin Britcher, of homicide by vehicle while driving under the influence, homicide by vehicle, involuntary manslaughter, and driving under the influence in connection with a fatal single car accident which occurred at 2:53 on the morning of Thursday, February 19, 1987. Appellant was granted a new trial on the homicide by vehicle charge because of an erroneous jury instruction, and was sentenced on the remaining convictions. On appeal, he contends that: convictions for homicide by vehicle while under the influence and homicide by vehicle were inconsistent and violative of double jeopardy and due process protections; statements made by him at the hospital should have been suppressed; expert toxicology testimony was improperly admitted; and, a jury instruction on the effect of alcohol on a fatigued individual was improper and prejudicial. We find no merit in the contentions.

Facts and Procedural History

On appeal, we must view the record in the light most favorable to the Commonwealth as the prevailing party, all conflicts in the evidence must be resolved in favor of the Commonwealth, all reasonable inferences in favor of the Commonwealth must be allowed, and we must give due consideration to the fact that the jury was free to reject as not credible even uncontradicted evidence in favor of the defense. Viewed in this light, the record establishes the following.

At approximately 8:30 p.m. on Wednesday, February 18, 1987, appellant, then nineteen years old, went to a social gathering at the home of a friend located a short distance down a gravel road off Route 74 in Saville Township, Perry County, Pennsylvania. Several other underage youths were there, all were illegally drinking beer from cans and from cups filled from a beer keg purchased during the

[ 386 Pa. Super. Page 520]

    course of the evening. Appellant admits to having had about nine beers; however, he acknowledged that he had not counted but merely estimated his consumption based on how intoxicated he felt. He claimed that he could hold his liquor well, and that he did not generally become impaired until he had about eighteen beers. Expert toxicology evidence indicated that appellant underestimated his consumption of alcohol.

Appellant decided to leave the gathering and go home at approximately 2:50 a.m. on the morning of Thursday, February 19, 1987. Though all of the people at the party who testified at trial indicated that appellant did not appear intoxicated, the record does contain the following significant exchange during redirect examination of Terry Cambell, the host of the gathering:

Q. If you thought at the time Darvin was leaving your house he was incapable of driving, what would you have done?

A. I would have told him to stay. But he wanted to go home. You can't stop a person if they want to leave.

(N.T. 8/25-26/87 at 176). (Emphasis added).*fn1

Appellant agreed to give two friends a ride home, Tony and Harry Kegg. Tony climbed into the back seat. Harry took the front seat. None of the three used their safety belts.

Appellant drove down the gravel road to Route 74 at a moderate rate of speed. When he reached Route 74, however, he quickly accelerated to approximately 80 miles per hour. Tony, in the back seat, though intoxicated, became excited and nervous. He told appellant to slow down and that he wanted to reach home alive. Appellant did not slow down, and so Tony climbed off the seat and crouched down behind the front seats. Appellant then told Tony that he had everything under control and that Tony should get back

[ 386 Pa. Super. Page 521]

    up in the seat. Tony did, briefly. Tony soon saw that appellant was not in control, and that they were going to crash. He jumped back down behind the front seats.

As appellant's car approached a curve just less than a mile from where the gathering had been held, it slid across its lane, onto the shoulder, and off the road. It struck an embankment, some shrubs, a tree, and a telephone pole, flipping over in a roll, and finally coming to a rest again on its wheels. The car was demolished, all of the windows were shattered, and debris was scattered over a wide area. Appellant and both of the passengers were thrown from the car during the accident. Appellant suffered a broken leg. Tony was knocked unconscious and suffered serious injuries. Harry died.

When interviewed at the scene, appellant acknowledged that he had been the driver. When interviewed later at the hospital (after being given full and correct Miranda warnings) appellant acknowledged again that he had been the driver, indicated that he had drunk nine beers that evening and that he may have been driving too fast, and consented to a blood alcohol test. The blood sample was drawn approximately three and one-half hours after the accident; tests indicated that appellant then had a blood alcohol content (BAC) of .14 percent. Appellant had no alcohol between the time of the accident and the time the blood sample was drawn for the BAC test.

Pre-trial suppression motions were denied. Following a two day jury trial, appellant was convicted of homicide by vehicle while under the influence, homicide by vehicle, involuntary manslaughter, and driving under the influence. On post-verdict motions, the trial court vacated the homicide by vehicle conviction and ordered a new trial on that charge based upon an erroneous jury instruction as to the culpable mental state required for the offense. All other motions were denied.

Appellant was sentenced to a three to six year term of imprisonment on the homicide by vehicle while under the influence conviction, and a concurrent term of two and

[ 386 Pa. Super. Page 522]

    one-half to five years on the involuntary manslaughter conviction. The driving while under the influence conviction was deemed to have merged with the homicide by vehicle while under the influence conviction. This timely appeal followed.

On appeal, appellant contends simultaneous conviction of homicide by vehicle and homicide by vehicle while under the influence violates the Double Jeopardy and Due Process provisions of the Pennsylvania and United States Constitutions; statements made at the hospital should have been suppressed; expert toxicology testimony was improperly allowed; and, the trial court erred in its charge to the jury. We find no merit in the contentions, and shall discuss each seriatim.

I. DOUBLE JEOPARDY AND DUE PROCESS

Appellant contends that both the Double Jeopardy and Due Process provisions of the Pennsylvania and United States Constitutions are violated when the Commonwealth is permitted to try a defendant on two allegedly ...


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