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[U] Commonwealth v. Kuhn

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
STEVEN KEITH KUHN Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 23, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000488-2012

BEFORE: ALLEN, J., LAZARUS, J., and FITZGERALD, J. [*]

MEMORANDUM

LAZARUS, J.

Steven Keith Kuhn appeals from the judgment of sentence imposed by the Court of Common Pleas of Cumberland County following his conviction for driving under the influence - highest rate, [1] driving under the influence -general impairment, [2] and driving while operating privilege suspended or revoked (DUI-related).[3] After careful review, we affirm.

On the afternoon of August 22, 2011, a neighbor observed Kuhn consuming three beers before proceeding to enter his vehicle for a "drive around the block." N.T. Trial, 3/19/13, at 26-27. At approximately 4:00 p.m., the same neighbor observed Kuhn, in a highly intoxicated state, sitting in his vehicle with his foot on the brake and the engine running in the parking lot behind their apartment complex. The parking lot adjoins Creek Avenue, which is regularly patrolled by police. There are no "Private" or "No Trespassing" signs posted in the parking lot, and the lot is open to the public. Around 5:00 p.m., another neighbor observed Kuhn passed-out in his vehicle in the parking lot with the engine still running and the car in reverse. The neighbor proceeded to put the car in park, turn off the engine, put the keys in the cup holder, and call 911. Chief Darrell Goodhart of the Mount Holly Springs Police Department arrived at the scene at approximately 5:35 p.m. Chief Goodhart noted that Kuhn was "drooling, slobbering, and was literally unresponsive." N.T. Trial, 3/19/13, at 73. After assisting emergency personnel with placing Kuhn into an ambulance, Chief Goodhart retrieved ten beer cans from Kuhn's vehicle, three of which were full. While at the hospital, Kuhn consented to a blood test, which revealed a BAC of .446 percent.

On March 19, 2013, the case proceeded to a jury trial before Judge Masland. The jury found Kuhn guilty, and on April 23, 2013, the court sentenced Kuhn to an aggregate term of 24-42 months' imprisonment. This timely appeal followed.

On appeal, Kuhn presents three issues for our review:
1. Whether the trial court erred by not granting [Kuhn's] request for a mistrial when Chief Goodhart testified, "Twice I was given notice that [Kuhn] was pleading guilty" to the offenses charged and effectively created a presumption of a withdrawn guilty plea?
2. Was the evidence presented at trial sufficient to sustain a conviction on all three counts when Kuhn was neither driving nor operating his vehicle at the time of the incident, the Commonwealth did not prove [Kuhn] was a danger to public safety, and Officer Wiser's testimony was inconsistent with and contradicted by the physical facts in evidence?
3. Was Kuhn's conviction on all three counts against the weight of evidence as to shock one's conscience when the uncontradicted evidence proves [Kuhn] was not driving, operating, or in actual physical control of his vehicle at the time of the incident, the Commonwealth failed to prove [Kuhn] was driving with a BAC of .02% or above, and failed to prove [Kuhn] was driving within two hours of having a BAC of .16% or greater?

Brief of Appellant, at 6.

In his first issue, Kuhn argues that the trial court erred by failing to declare a mistrial based on an allegedly prejudicial remark made by Chief Goodhart. The following standard guides our review of the issue:

In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. By nullifying the tainted process of the former trial and allowing a new trial to convene, declaration of a mistrial serves not only the defendant's interest but, equally important, the public's interest in fair trials designed to end in just judgments. Accordingly, the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, . . . assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion. Judicial discretion requires action in conformity with [the] law ...

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