Appeal from the Judgment of Sentence May 16, 2011, Court of Common Pleas, Dauphin County, Criminal Division at No. CP-22-CR-0002330-2009. Before DOWLING, J.
Joshua Auriemma, Washington, DC, for appellant.
Jason E. McMurry, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
BEFORE: STEVENS, P.J.[*], BENDER, BOWES, GANTMAN, DONOHUE, ALLEN, OLSON, OTT and WECHT, JJ.
Appellant, Curtis Allee Williams, Jr. (" Williams" ) appeals from the trial court's May 16, 2011 judgment of sentence imposing 5 to 10 years of incarceration for aggravated assault and recklessly endangering another person. Williams argues that the trial court erred in excluding evidence of the blood alcohol content (" BAC" ) of the victim, Harrison Purdy (" Purdy" ), a witness at trial. Because Purdy was intoxicated during his encounter with Williams, and because Purdy gave a testimonial account of that encounter at trial, we conclude that the trial court misapplied the law of evidence by excluding the BAC evidence. We therefore vacate the judgment of sentence and remand for a new trial.
The record reveals that Williams and Purdy were both driving their vehicles on Nyes Road in Harrisburg at the same time on April 12, 2009. Purdy's vehicle was behind Williams' vehicle, traveling in the same direction. Their accounts differed as to how the altercation started and escalated. Purdy testified that Williams suddenly applied his brakes and gestured toward Purdy, in apparent dissatisfaction with Purdy's following too close. Williams testified that Purdy's vehicle approached too quickly from behind, nearly rear-ending Williams' vehicle. Williams testified that he became upset with Purdy because Williams' baby was in the backseat of his car and his son was in the front passenger seat. Williams testified that Purdy's vehicle continued to follow too closely.
With both cars stopped at an intersection, Purdy exited his vehicle and approached Williams' vehicle, shouting and angered by what he believed to be Williams' offensive conduct. Williams also exited his vehicle and shot Purdy as Purdy
was approaching Williams' car. Williams testified that he told Purdy to stop, and that it appeared that Purdy was reaching under his shirt for a gun. Purdy testified that Williams simply opened his car door and opened fire on Purdy.
Purdy sustained a gunshot wound to his leg and was taken to a local hospital for treatment. A blood test revealed Purdy was legally intoxicated, with a BAC of 0.156.
Police arrested Williams and charged him with attempted homicide, aggravated assault, and recklessly endangering another person (" REAP" ). The Commonwealth filed a pre-trial motion in limine seeking exclusion of the evidence of Purdy's BAC. The trial court granted that motion on December 3, 2010. After a two-day trial, a jury found Williams guilty of aggravated assault and REAP, but not guilty of attempted homicide. The trial court's May 16, 2011 judgment of sentence imposed an aggregate five to ten years of incarceration. Williams filed a timely appeal, and a three-judge panel of this Court affirmed the judgment of sentence with one judge dissenting. Subsequently, this Court granted Williams' petition for reargument.
We must decide whether the trial court erred in granting the Commonwealth's pretrial motion in limine to exclude evidence of Purdy's BAC level. During trial, the central issue was Williams' assertion of self-defense. Williams took the stand in his own defense and testified that he believed, based on Purdy's apparent extreme anger, that force was necessary to protect himself and his children. Williams argues that Purdy's BAC level was admissible to challenge the accuracy of Purdy's testimonial account of the events leading up to the shooting. The Commonwealth argues that the BAC evidence was cumulative and irrelevant because other witnesses confirmed that Purdy exited his SUV and appeared confrontational as he approached Williams' vehicle.
Admission or exclusion of evidence at trial rests within the discretion of the trial court. Commonwealth v. Glass, 2012 PA Super. 137, 50 A.3d 720, 724-25 (Pa. Super. 2012), appeal denied, 619 Pa. 686, 63 A.3d 774 (2013). We will not reverse the trial court's decision absent an abuse of that discretion. Id. " An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Id. at 725. " If in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error." Id.
The trial court excluded evidence of Purdy's BAC because it found the evidence not relevant. Evidence is relevant if it has " any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. The trial court further concluded that Purdy's BAC, even if relevant, was inadmissible because it was unfairly prejudicial to the Commonwealth's case, pursuant to Rule of Evidence 403:
Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Our Supreme Court has " consistently held that intoxication on the part of a
witness at the time of an occurrence about which he has testified is a proper matter for the jury's consideration." Commonwealth v. Small, 559 Pa. 423, 444, 741 A.2d 666, 677 (1999) ( quoting Commonwealth v. Drew, 500 Pa. 585, 591, 459 A.2d 318, 321 (1983)). The Drew Court explained:
Any deficiency of the senses, [...] which would substantially lessen the ability to perceive the facts which the witness purports to have observed, should of course be provable to attack the credibility of the witness, either upon cross-examination or by producing other witnesses to prove the defect ....
Abnormality ... is a standard ground of impeachment. One form of abnormality exists when one is under the influence of drugs or drink. If the witness was under the influence at the time of the happenings which he reports in his testimony or is so at the time he testifies, this condition is provable, on cross [examination] or by extrinsic evidence, to impeach.
Drew, 500 Pa. at 590, 459 A.2d at 321 ( quoting McCormick, Evidence § 45 (2d ed. 1972)). In Drew, the Supreme Court concluded that the trial court properly admitted evidence of the defendant's .18 BAC. Id. at 591, 459 A.2d at 322. The BAC evidence allowed the jury to assess and weigh the conflicting testimony of the defendant and a Commonwealth witness. Id.
As noted above, Williams' primary theory of the case was that he shot Purdy in self-defense. The Pennsylvania Crimes Code defines self-defense as follows:
§ 505. Use of force in self-protection.
(a) Use of force justifiable for protection of the person. --The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
18 Pa.C.S.A. § 505.
The record reveals that several other motorists observed the altercation between Purdy and Williams, and the witnesses agreed that Purdy exited his vehicle and approached Williams' vehicle, and that Purdy appeared agitated as he did so. N.T. 4/7-10/11, at 145-47, 170-75. Specifically, Bertha MaShelle Graves (" Graves" ) testified that she saw a man get out of an SUV and approach a smaller car. Id. at 145. The door of the smaller car swung open and she heard shots fired. Id. Likewise, Michael Cahill (" Cahill" ), testified that he saw a man getting out of an SUV. Id. at 170-71. His body language evinced a confrontation. Id. at 172. Cahill heard shots fired as the SUV driver approached the Chevrolet. Id. at 173. Cahill heard an additional shot as he was performing a K turn to leave the area. Id. at 175. Neither Graves nor Cahill offered testimony as to what transpired before Purdy exited his vehicle.
Purdy testified that he was driving his SUV and talking on his cell phone when he noticed the driver of the car in front of him looking back at him while pointing and making gestures. Id. at 100. Purdy testified that the driver slammed on the brakes in an apparent dissatisfaction with Purdy following too closely. Id. Purdy attempted to pull off of the road into a Sam's Club, but the car in front of him " cut back up in front of me." Id. at 101. Upset by those actions, Purdy got out of his car and approached the other car while screaming. Id. at 102. Purdy further testified that " I was just angry and I wanted him to know that I was angry. Nothing more." Id. at 109. As Purdy was approaching the other car, the driver opened his door, pointed a
gun at Purdy's chest, and started shooting. Id. at 102-03.
Williams, testifying in his own defense, stated that " this big old truck flew up on us" after he stopped his car at a stop sign. Id. at 253. Williams was upset and scared because his baby was in the backseat and he believed a rear-end impact from the truck could have been fatal to the baby. Id. Williams gestured to the driver of the truck in attempt to convey that a baby was in the back seat of his car. Id. According to Williams, the truck continued following him " bumper to bumper." Id. at 255. When Williams stopped his car at an intersection, the other car came " flying up" behind him. Id. at 260. Williams testified that the driver got out of his car and quickly approached Williams' car. Id. at 265. The driver had his hand under his shirt and Williams believed he saw the driver's hand on a shiny object that might have been a firearm. Id. Williams testified that he yelled for the driver to stop, because Williams' baby was crying. Id. The driver continued to approach, and Williams opened fire. Id.
In summary, Williams and Purdy were the only two witnesses who testified about the encounter from its inception, and each portrayed the other as the aggressor. Williams' testimony, if believed, establishes unprovoked aggression and potentially threatening behavior on Purdy's part. Purdy's testimony, if believed, establishes that Williams provoked the encounter by slamming on his brakes and making gestures, and that Williams opened fire without warning as Purdy approached Williams' car to express his anger.
Based on the foregoing, we conclude that the trial court committed an error of law in excluding evidence of Purdy's BAC. As set forth by our Supreme Court in Drew, evidence of a witness' intoxication is admissible impeachment evidence where the witness was intoxicated during the event to which he or she testifies. Thus, we disagree with the trial court's conclusion that the evidence was irrelevant. Furthermore, we disagree with the trial court's conclusion that the BAC evidence was more prejudicial than probative simply because other witnesses confirmed that Purdy exited his car before Williams and approached William's vehicle in an apparent agitated state. As explained above, no witness other than Williams or Purdy observed the incident from its inception. Evidence of Purdy's BAC would have allowed the jury to perform its core function of assessing Purdy's credibility and the weight of his testimony, in keeping with our Supreme Court's rationale in Drew.
In addition, the trial court believed " the societal stigma associated with driving drunk" rendered the BAC evidence more prejudicial than probative. Trial Court Opinion, 8/9/11, at 7. We cannot accept this reasoning, as it would effectively preclude admission of BAC evidence for any witness who happened to be driving.
Our Supreme Court in Drew set forth a simple analysis governing the admissibility of witness intoxication. Evidence of intoxication during the events that are the subject of the witness' testimony is admissible. Evidence of a witness' intoxication at other times is not admissible. Drew, 500 Pa. at 591, 459 A.2d at 321. We therefore conclude that the trial court erred in excluding evidence of Purdy's BAC. Because Purdy's testimony strongly undermined Williams' self-defense theory, which was the central issue at trial, we cannot conclude that the trial court's error was harmless. For these reasons, we vacate the judgment of sentence and remand for a new trial.
Judgment of sentence vacated. Case remanded for new trial. Jurisdiction relinquished.
I respectfully disagree with the majority's decision to vacate Appellant's judgment of sentence and remand the case for a new trial. Instead, I would affirm ...