Appeal from the Judgment of Sentence Entered September 4, 2007, In the Court of Common Pleas, Cumberland County, Criminal, at CP-21-CR-001901-2006.
The opinion of the court was delivered by: Allen, J.
BEFORE: ALLEN, CLELAND and FITZGERALD*fn1, JJ.
¶ 1 Appellant Daniel J. Schmohl appeals from the judgment of sentence entered following his convictions of aggravated assault while driving under the influence ("AA-DUI"), recklessly endangering another person ("REAP"), DUI - general impairment with accident, DUI - high rate of alcohol, and the summary offense of reckless driving.*fn2 Appellant maintains that the evidence was legally insufficient to sustain his convictions and that the trial court erred as a matter of law in failing to merge his conviction of DUI -- high rate of alcohol - with his conviction of AA-DUI. We affirm in part and reverse in part, vacating Appellant's sentence for DUI -- high rate of alcohol.
¶ 2 The trial court stated the facts of this case as follows.
The charges against Daniel J. Schmohl stem from a very serious motor vehicle accident that occurred at approximately 9:00 p.m. on March 30, 2006, on Sandbank Road, in Mt. Holly Springs, Cumberland County[.] The events leading up to the crime began sometime after 5:00 p.m. when the Defendant met his fiancée and two other acquaintances for dinner at the Three Pines Tavern. The Defendant indicated that he had dinner at the Tavern and drank at least 5-6 sixteen ounce beers. The Defendant admitted to the Central Processing Agent that he began drinking at approximately 5:30 p.m. that day and continued until 8:30 -- 9:00 p.m. The Defendant stated that the couple he was socializing with all evening [was] visibly intoxicated when they left the Tavern. . . . The Defendant left the Tavern, and drove his vehicle to a point on Sandbank Road where he struck the victim.
Pennsylvania State Trooper Bryan Henneman was dispatched to the collision scene at 9:07 p.m. The force of the collision propelled the victim's body 101 feet from the point of impact to where it struck a telephone pole. The victim was flown by Life Lion helicopter to Hershey Medical Center.
Dr. Robert Cherry, Chief of Trauma and Critical Care at the Penn State Milton Hershey Medical Center, testified that the victim suffered life threatening injuries which included a large scalp laceration. The victim had lost so much blood that he was hermodynamically unstable and required 7 liters of crystalloid solution and 4 unites of blood to restore his blood pressure. . . . The victim's injuries were so extensive he required physical therapy 3 to 4 times a week for a period of 7 to 8 months.
Even though it was dark at the time of the incident, two drivers, Sonny Burford, the Defendant's fiancée, and Regina Hershey, observed the boys walking along the roadway and successfully drove round them without incident. These observations were made just prior to Defendant's collision with the victim. Even the Defendant admitted that if the victim was standing on the road, his headlights would have illuminated him and [the Defendant] should have been able to see him.
All of the witnesses generally agree that the victim was walking side by side with two of his friends. The two friends testified that the victim was very close to the white fog line on the road.
Even the Defendant's fiancée had stated to police that the one boy (i.e., the victim) was "walking slightly over the white line."
The only truly neutral witness, Regina Hershey, stated that the victim "was right on the white line. He was walking down the berm of the road." As shown in Commonwealth's Exhibits 1 and 2, Sandbank Road in the area of the collision was relatively straight and unobstructed. An examination of the front of the Defendant's car shows an impact point which would establish that the right front wheel of the Defendant's car was very likely on or over the white fog line when he struck the victim[,] given the other witness testimony regarding the position of the victim just prior to the impact.
After striking the victim, the Defendant did not immediately stop but proceeded down Sandbank Road 440 feet before stopping.
He did not call 911 on his cell phone but indicated that he panicked and called his fiancée.
After arriving at the scene, Trooper Henneman spoke with the Defendant and immediately detected a very strong odor of alcoholic beverage coming from his mouth and person. The Trooper also noticed that the Defendant's eyes were bloodshot and glassy. . . . The Trooper administered field sobriety tests to the Defendant and the Defendant failed both tests. The Defendant was placed under arrest for [DUI]. He was transported to the County Booking Center for processing . . . [and] submit[ted] to a breathalyzer test[.] The result of the ...