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Commonwealth v. Olsen

Superior Court of Pennsylvania

December 16, 2013


Appeal from the Judgment of Sentence of September 26, 2012 In the Court of Common Pleas of Chester County Criminal Division at No.: CP-15-CR-0002825-2011




Teresa Olsen ("Appellant") appeals from the September 26, 2012 judgment of sentence, which was imposed after Appellant was convicted by a jury of, inter alia, driving under the influence of alcohol ("DUI"), 18 Pa.C.S. § 3802(a)(1), her third DUI offense. We affirm.

The record supports the following account of the events underlying this case. At approximately 3:20 p.m. on June 10, 2011, Kimberly McKinley ("McKinley") was stopped at a traffic signal on Sheree Boulevard in Chester County, Pennsylvania, when a white Toyota Highlander SUV approached her vehicle on the left hand side. When the light turned green, McKinley drove off, traveling at the posted speed limit. The Highlander, moving at a speed considerably above the speed limit, passed McKinley's vehicle and disappeared around a curve in the road. The vehicle came back into McKinley's view at the intersection of Sheree and State Route 113. McKinley noticed that the Highlander's driver's side front tire was flat. The Highlander slowed down and started to roll towards a stop on the berm of the road. McKinley observed the driver, later determined to be Appellant, exit the vehicle. The Highlander started to roll again, and eventually came to a stop on its own. McKinley observed Appellant wobble as she walked away from the car and headed toward a nearby CVS pharmacy. Due to the location of the vehicle on a heavily traveled road, the fact that the vehicle moved on its own after Appellant had exited, and Appellant's demeanor upon her exit from the vehicle, McKinley called 911 and alerted the authorities about what she had observed.

April Neville ("Neville") was on duty as the manager of the CVS pharmacy when Appellant stumbled into the store on June 10, 2011. Neville was called to the front desk to assist Appellant in making a phone call. Appellant attempted to dial a phone number, but the telephone's screen indicated that Appellant had merely dialed 8-8-8. Neville became concerned about Appellant's overall well-being after Appellant informed Neville that "someone beat the dog shit out of [me] in the parking lot." Neville offered to call the police, but Appellant refused, claiming that she disliked the police that worked in that area. Neville observed Appellant acting erratically. For example, Appellant provided Neville with Appellant's husband's phone number and then walked out of the store, leaving Neville to speak with Appellant's husband. Neville retreated to her office to grab her cell phone. When she returned to the front of the store, Appellant had returned and was yelling at the cashier. Neville then asked Appellant to leave the store. After Appellant exited, Neville contacted the police.

Sergeant Dale McClure and Officer Matthew Gale of the Uwchlan Township Police Department responded to these reports and found Appellant in the CVS parking lot. Sgt. McClure noticed that Appellant spoke with a slur and walked with a staggering gait. Upon being questioned, Appellant admitted that she had consumed one alcoholic drink earlier in the day. Appellant submitted to a portable breath test, which indicated the presence of alcohol. Appellant then failed two field sobriety tests, after which Sgt. McClure arrested Appellant on suspicion of DUI.

Appellant initially consented to be taken to a local hospital to have her blood drawn and tested for the presence of alcohol. The trial court summarized the sequence of events that followed Appellant's arrest as follows:

Sergeant McClure attempted to provide [Appellant] with the required [75 Pa.C.S. § 1547 warnings regarding the enhanced penalties for refusing a blood test], and only abandoned the effort because of [Appellant's] extremely uncooperative behavior. Specifically, after placing [Appellant] under arrest for driving under the influence of alcohol or a controlled substance, McClure asked [Appellant] if she was willing to go to the hospital for a blood test, at which point [Appellant] was willing to take the test. As McClure began driving to the hospital, [Appellant] was cooperative and asked some general questions about the procedure and how long it would take to get to the hospital. During the drive to the hospital, the conversation with [Appellant] ceased and she was observed asleep in the patrol car. When McClure was about two blocks from the hospital, [Appellant] awoke and asked where they were. McClure informed her that they were a couple of blocks from the hospital. At this point, [Appellant] began to get loud, was screaming and continued on a vulgar tirade about law enforcement and about McClure specifically. McClure described that he "couldn't get a word in edgewise." McClure did attempt to read the chemical testing warnings from the DL-26 Form, but it was clear that [Appellant] was not paying attention and was on a "vulgar tirade." Although McClure did not actually read very much of the DL-26 Form, he read the beginning of the form and only abandoned the effort after it was clear that [Appellant's] behavior would not permit him to finish. [McClure abandoned his effort to take Appellant into the hospital for a blood draw, and instead turned his patrol vehicle around and began to drive towards the West Whiteland Police Department in order to have Appellant processed on the DUI charge.]
In fact, after leaving the hospital [and on the way to the police station, Appellant] continued in her outrageous behavior requiring McClure to pull over his police car because [Appellant's] tirade continued and she was kicking at the right rear door window of the police cruiser. During this time, Appellant] yelled, cursed and screamed. She eventually kicked the patrol vehicle window out of its frame. After McClure pulled the patrol vehicle over and back-up officers arrived, [Appellant] was placed in leg-shackles. A West Whiteland patrol car that had arrived at the scene began recording the interaction with [Appellant]. Commonwealth's exhibit 8, the MVR recording from the West Whiteland patrol car, was presented, wherein the jury observed [Appellant's] behavior after McClure pulled over his police car. [Appellant] is observed to be in a vulgar tirade, screaming and spitting on police officers, similar behavior to, and visually corroborative of, that described by McClure while he attempted to read [Appellant] her chemical testing warnings. [Appellant's] behavior was outrageous and uncontrollable.

Trial Court Opinion ("T.C.O."), 1/14/2013, at 3-5.

At the conclusion of trial, the jury found Appellant guilty of DUI, criminal mischief, 18 Pa.C.S. § 3304(a)(5), and resisting arrest, 18 Pa.C.S. § 5104. Furthermore, the jury determined that Appellant had refused to submit to chemical testing of her blood, resulting in the sentencing enhancement set forth in 75 Pa.C.S. § 3804(c). On September 26, 2012, Appellant was sentenced to one to two years' incarceration, to be followed by two years of probation.

On October 8, 2012, Appellant filed post-sentence motions. With the trial court's permission, Appellant amended her post-sentence motions on December 12, 2012. In her post-sentence motions, Appellant challenged, inter alia, the weight and sufficiency of the evidence proffered by the Commonwealth to prove that Appellant had refused chemical testing of her blood. On January 3, 2013, the Commonwealth filed an answer and accompanying brief in opposition to Appellant's claims. On January 14, 2013, after reviewing all of the written materials, the trial court denied Appellant's post-sentence motions in an order. The trial court set forth its rationale supporting its order in an accompanying opinion.

On February 12, 2013, Appellant filed a notice of appeal. In response, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 5, 2013, Appellant timely complied. On March 12, 2013, the trial court issued a memorandum pursuant to Pa.R.A.P. 1925(a), wherein the trial court directed this Court to its January 14, 2013 opinion in support of its order denying Appellant's post-sentence motions.

Appellant raises five questions for our review:

1. Was the evidence sufficient to support the jury's verdict that [Appellant] refused chemical testing of her blood within the meaning of 75 Pa.C.S.A. §[§] 3804 and 3804(c)(3)?
2. Was the jury's verdict that [Appellant] refused testing of her blood against the weight of the evidence?
3. Did the fact that the jury never saw the "Chemical Testings Warnings" form (Commonwealth's Exhibit 5), which the arresting officer referenced in his testimony and the trial court admitted into evidence, deprive [Appellant] of due process?
4. Did the trial court err in instructing the jury that it could consider the evidence of [Appellant's] refusal to submit to the ...

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