March 5, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
CURTIS B. ARCHER Appellant
Appeal from the Judgment of Sentence December 11, 2013 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-SA-0000156-2012
BEFORE: BENDER, P.J., PANELLA, J., and MUSMANNO, J.
Appellant, Curtis B. Archer, appeals from the judgment of sentence entered December 11, 2012, by the Honorable Edward E. Guido, Court of Common Pleas of Cumberland County. We affirm.
This case is an appeal from a summary criminal conviction. On July 23, 2012, Hampden Township Police Officer Brandon Stolley effectuated a traffic stop of a vehicle traveling on the right shoulder of Carlisle Pike. The vehicle was driven by Archer; his wife and five week old son were in the back seat. When Officer Stolley requested Archer's license, Archer admitted that his license had been suspended for DUI-related offenses, and that he was driving due to an emergency involving his infant child. When the officer offered to contact EMS, Archer refused and stated that they were on their way back from the doctor's office. Officer Stolley proceeded to cite Archer for Driving While Operating Privilege is Suspended (DUI-related).
On August 15, 2012, following a summary trial, Senior Magisterial District Judge Paula P. Correal sentenced Archer to a term of 60 days' imprisonment, plus costs and a $500.00 fine. Archer filed a summary appeal. Following a de novo trial on December 11, 2012, Judge Guido convicted Archer of driving under suspension and imposed the same sentence set by the District Judge. This timely appeal followed.
On appeal, Archer argues that Commonwealth presented insufficient evidence to refute his justification defense to the driving under suspension charge. Our standard of review is as follows:
The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact[-]finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Helsel, 53 A.3d 906, 917-918 (Pa.Super. 2012) (citations omitted).
In Commonwealth v. Manera, 827 A.2d 482, 484-485 (Pa.Super. 2003), a panel of this Court held that a justification defense of emergency was theoretically applicable to a driving while operator's privilege was under suspension for a DUI-related offense. The panel reiterated the elements of a justification defense as follows:
1.that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
2.that the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm,
3. that there is no legal alternative which will be effective in abating the harm; and,
4. that the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.
Manera, 827 A.2d at 484 (citation omitted).
The notes of testimony of the de novo trial reveal that on July 23, 2012, Archer contacted his doctor because his infant child appeared ill and was crying all weekend. N.T., Non-Jury Trial, 1/16/13 at 18. The doctor instructed Archer to bring the infant to the office rather than the emergency room. Id. Archer testified that he attempted to have his brother drive the infant to the doctor's office, but that he could not reach him. Id. at 14. When Archer was stopped by Officer Stolley, he was returning from the doctor's office on the way to fill a prescription the doctor had written for Prevacid. Id. at 11-12. Archer argues he has asserted a successful justification defense because "[t]he harm that could have come to his child was greater than they any [sic] perceived harm of Appellant driving under suspension." Appellant's Brief at 9.
The trial court rejected Archer's justification defense. In finding Archer's actions were not justified under the circumstances, the lower court reasoned that:
[w]e did not believe that [Archer] saw himself as being faced with an emergency situation. The child had been crying all weekend. However, the defendant did not choose to drive until noon on Monday. At some point he consulted the child's pediatrician. He was not advised to go to the emergency room, but was told to come to the office. When asked if he made any attempts to get someone else to transport the child to the doctor, he testified as follows:
I usually have – my brother would usually take us, but this came up as a type of situation where I couldn't get ahold of him. The baby was looking pale and white. The baby didn't look good to me. He is my only child, and he didn't look good. He just didn't look good.
We did not find that testimony to be credible, especially in light of the fact that the "emergency" had been going on all weekend. We also note that if he truly believed that an "emergency" situation existed he could have had the child transported by ambulance to the emergency room.
While we sympathize with [Archer's] concern for his child, we could not in good conscience find that his actions were justified under the law. Quite [to] the contrary, we were satisfied beyond a reasonable doubt that his decision to drive to and from the doctor's office was based upon convenience rather than a belief that his child was in any real danger.
Trial Court Opinion, 5/9/13 at 2-3 (unnumbered) (footnote omitted).
We agree with the trial court's cogent analysis. Specifically, we find it significant that Archer waited all weekend to contact a doctor, rather than seeking emergency help over the weekend when the problem with the infant arose. Moreover, the trial court specifically discredited Archer's testimony that he attempted to contact his brother to transport the infant to the doctor. We are bound by that credibility determination when reviewing a sufficiency challenge on appeal. Commonwealth v. King, 990 A.2d 1172, 1178 (Pa.Super. 2010). Accordingly, as Archer failed to establish a successful justification defense, we affirm the trial court's judgment of sentence.
Judgment of sentence affirmed.