J-S47009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SHELTON RAY AKEE RITTER,

                        Appellant                   No. 1651 MDA 2015


           Appeal from the Judgment of Sentence August 26, 2015
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0005068-2014


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 26, 2016

      Appellant, Shelton Ray Akee Ritter, appeals from the judgment of

sentence entered on August 26, 2015, in the York County Court of Common

Pleas. After careful review, we reverse the judgment of sentence entered on

the charge of fleeing or attempting to elude a police officer, and we remand

for a new trial.

      The trial court provided the following background in this matter:

      On May 13, 2015, before the commencement of his first jury
      trial, the Appellant pleaded guilty to Counts 3 [possession of
      controlled substance], 4 [possession of drug paraphernalia], 5
      [driving while operating privileges were suspended or revoked],
      and 11 [driving under the influence of alcohol or controlled
      substance]. On May 14, 2015, this Court formally declared a
      mistrial due to the jury’s inability to reach a unanimous verdict
      on the remaining counts. The Commonwealth sought to try the
      Appellant again, and his second trial began on July 14, 2015.
      The next day, on July 15th, he was found guilty of Counts 1
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       [fleeing or attempting to elude a police officer] and 6 [traffic
       control signals].[1]

              During the trial, Officer Daniel Kling of the York City Police
       Department testified that on June 13, 2014, he was on duty
       when he observed a vehicle stopped at red light at Princess
       Street in the City of York. N.T. 7/14 – 7/15/2015 at 81-82.
       Officer Kling recognized the driver and identified him as the
       Appellant. Id. at 82. Through prior knowledge, Officer Kling
       knew the Appellant’s license status was suspended, so he, and
       the two other officers who were with him, proceeded to turn
       around and follow the Appellant. Id. at 82-83. The officers
       caught up to the Appellant while he was stopped at a red light
       waiting to turn left onto Broad Street. Id. at 83. While the light
       was still red Officer Kling observed the Appellant make a left-
       hand turn and proceed down Broad Street.              He continued
       following the Appellant until he came to a stop. Id. Officer Kling
       testified at that time the Appellant’s vehicle came to a stop and
       Officer Glatfelter turned on the emergency lights and “hit the
       welp, which is like a short siren.” Id. at 83-84.

              Officer Kling testified that as soon as he and the other
       officers pulled in behind the Appellant, the passenger exited the
       vehicle. N.T. 7/14 – 7/15/2015 at 85,101. Officer Kling got out
       the unmarked police car and told the passenger to get back in
       the vehicle. Id. The Appellant then drove away. Id. The
       officers jumped back in their vehicle, and began to pursue the
       Appellant. Id. at 86. Officers were able to catch up to the
       Appellant when he pulled into a parking area.         Id. at 87.
       Officer Kling described the parking lot as a circle with cars
       parked on the outside and a row of cars in the center of the
       circle. Id. Officers Kling, Clymer, and Glatfelter all got out of
       their vehicle and approached the Appellant instructing him to put
       his vehicle in park. Id. at 88. According to Officer Kling, the
       Appellant was looking directly at the officers while they were
       giving these verbal commands. Id. The Appellant put his
____________________________________________


1
   To clarify, Appellant pled guilty to counts 3, 4, 5, and 11. Counts 2, 7, 8,
9, and 10 were nol prossed. Count 6, concerning failure to stop at a traffic
light, was a summary offense, and therefore, Appellant’s second trial
concerned only the charge for fleeing or attempting to elude a police officer
while driving under the influence.



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     vehicle into reverse and began driving clockwise around the
     parking lot. Id. Officer Glatfelter moved his vehicle to obstruct
     the Appellant’s path, and Officers Kling and Clymer chased the
     Appellant on foot. Id. at 89.

            Eventually, the Appellant stopped his vehicle and put it in
     park. N.T. 7/14 – 7/15/2015 at 89. Officer Kling testified that
     the Appellant would not voluntarily get out of the vehicle, so he
     forcibly removed him. Id. Officers found a bag of marijuana on
     the Appellant and a cold, half-full bottle of Budweiser Select in
     the Appellant’s vehicle. Id. at 90. Officer Kling testified that
     while he was searching the Appellant he smelled a strong odor of
     alcoholic beverage emanating from his person.          Id.    The
     Appellant admitted to having marijuana and drinking before he
     drove. Id.

           Officers took the Appellant to central booking at which
     point he indicated he wanted medical treatment. N.T. 7/14 -
     7/15/2015 at 91.      While waiting with the Appellant at the
     hospital, Officer Kling testified that the Appellant repeatedly
     stated that he does not run from the police. Id. at 91.

            On cross-examination, Officer Kling clarified that because
     he was in an unmarked vehicle it was not equipped with a typical
     light bar on top of the vehicle. 7/14 – 7/15/2015 at 97. He also
     indicated that while officers were following the Appellant they did
     not activate their lights and sirens. Id. at 99. Furthermore,
     Officer Kling agreed with defense counsel that this was not a
     high speed chase through the city. Id. at 102. Finally, Officer
     Kling estimated that approximately 30 to 45 seconds passed
     from the time the Appellant pulled away from the curb on Broad
     Street to the time he was placed in custody in the parking lot.
     Id. at 106.

           Officer Timothy Clymer testified to essentially the same
     facts as Officer Kling. See N.T. 7/14 – 7/15/2015 at 109-118.
     Officer Clymer added that from his position he could see a white
     male passenger in the Appellant’s vehicle. Id. at 111. When the
     Appellant pulled over on Broad Street to let his passenger out,
     Officer Clymer testified that he pulled up behind the Appellant’s
     vehicle and activated the emergency lights to initiate a traffic
     stop. Id. at 112. As officers began to exit their vehicle, the
     Appellant drove away. Id. at 113. Officer Clymer added that on
     the way to the hospital the Appellant made several spontaneous

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     statements, which included an apology for running. Id. at 116.
     The Appellant indicated that he did not see the lights, and that
     he had a couple of beers, but that he was not drunk. Id.

           The parties entered into stipulation that if called to testify
     Ayako Chan-Hosokawa, forensic toxicologist, would state that
     the Appellant’s BAC was .140 %, and his blood also contained
     the inactive metabolites for marijuana. N.T. 7/14 – 7/15/2015
     at 117.

           Like Officer Clymer, Officer Clayton Glatfelter’s testimony
     was very similar to that of Officer Kling. See N.T. 7/14 –
     7/15/2015 at 123-31. Officer Glatfelter testified that when the
     Appellant turned left at the red light, it was his opinion that the
     Appellant was trying to flee. Id. at 125. The parties entered
     into one final stipulation, that being that the substance found on
     the Appellant’s person did test positive for marijuana. Id. at
     130-31.

            The Commonwealth rested, and the Appellant took the
     stand. N.T. 7/14 – 7/15/2015 at 136, 143. The Appellant
     testified that on June 13, 2014, he was at his house with a
     couple of friends having a few drinks. Id. at 145. His friend
     wanted to go home, so the Appellant offered to drop his friend
     off at his house. Id. With respect to the left-hand turn on to
     Broad Street, the Appellant stated that he saw the opposite light
     turning from green to yellow so he began inching forward, and
     then he went ahead and made the left turn. Id. at 146. He let
     his friend out of the car and then proceeded to the parking lot to
     turn around and go back to his house. Id. at 147. The Appellant
     said he knew his license was suspended, so he did not want to
     make a U-turn in the middle of the street. Id.

           The Appellant testified that he did remember seeing a
     black SUV, but he did not know it was an unmarked police
     vehicle. N.T. 7/14 – 7/15/2015 at 151-52. The Appellant
     maintained he did not hear any sirens, and that the only time he
     knew the police were pursuing him was when he put his vehicle
     into reverse to leave the parking lot and he felt an officer pulling
     him from his vehicle. Id. at 153. The Appellant admitted that
     his decision to drink and drive was wrong; but that he was not
     feeling drunk and felt he was able to drive. Id. at 154. In fact,
     the Appellant, on re-direct, indicated that he was surprised when
     he learned what his BAC was because he “did not feel what they

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       were telling me I should be feeling.” Id. at 172. Finally, the
       Appellant was adamant that he did not flee the police on June
       13, 2014, and that he was not trying to hide from the police that
       night. Id. at 155-56.

              On cross-examination, the Appellant denied ever driving
       around in circles in the parking lot. N.T. 7/14 – 7/15/2015 at
       165-66. The Appellant indicated that if he was slurring his
       speech it was not because he was intoxicated, it was because
       the officers had slammed his head on the ground. Id. at 167.
       Finally, the Appellant maintained that he did not see officers with
       their guns drawn approaching his vehicle. Id. at 169.

              On re-direct, the Appellant elaborated on why he did not
       let his friend walk home if he only lived a couple blocks away.
       N.T. 7/14 – 7/15/2015 at 171. The Appellant was candid in
       stating that his friend, being a white male, would have been a
       target in that area of the city. Id. The Appellant stated that his
       mother was home at the time, but that he did not want to bother
       her for a ride because of her poor health. Id. at 171-72.

Trial Court Opinion, 1/4/15, at 1-6 (footnote added).

       After the Commonwealth rested and while the jury was out of the

courtroom, the Commonwealth requested a jury instruction on voluntary

intoxication.2 N.T., 7/14/15-7/15/15, at 138-139. Appellant objected, but

the trial court overruled the objection and agreed to give the instruction.3

Id. at 139-140. The trial court instructed the jury as follows:


____________________________________________


2
    Pennsylvania Standard Criminal Jury Instruction 8.308A.
3
   The attorney for the Commonwealth requested the voluntary intoxication
instruction because, after speaking to the jurors following Appellant’s
mistrial, he averred that some jurors felt Appellant “was too drunk or too
high to understand what was going on.” Trial Court Opinion, 1/4/15, at 7
(citing N.T., 7/14/15-7/15/15, at 138-139).



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           [Appellant] has been charged with the offense of fleeing or
     attempting to elude a police officer. To find [Appellant] guilty of
     that offense, you would have to find the following elements have
     been proven beyond a reasonable doubt: First, that [Appellant]
     was a driver of a motor vehicle; second, that [Appellant] was
     given a visual and audible signal by a police officer to bring the
     vehicle to a stop. The signal given by the police officer may
     have been by hand, voice, emergency lights, or siren.

            Third, that [Appellant] failed or refused to bring the vehicle
     to a stop or fled or attempted to elude the pursuing police
     officer; fourth, that [Appellant] did so willfully, that is, he was
     aware of the officer’s signal to stop and refused to do so.

            Now, as I said, if and only if you find [Appellant] guilty of
     that offense, do you go on and answer the second question, and
     that is, while fleeing, did [Appellant] do so while committing the
     crime of driving under the influence of alcohol and drugs?

           And I believe you heard the agreement of the parties that
     should you find [Appellant] guilty of the first question, then the
     answer to that question as agreed to by the parties, the answer
     to the second question is yes.

            So I am not going to go into a definition of what driving
     under the influence is. Of course if you find [Appellant] not
     guilty of the first question, that is it. You do not go any further.
     You indicate to the tipstaff that you have reached a verdict.

          Also, with regard to the crime with which [Appellant] is
     charged, you should know that voluntary intoxication is not a
     defense to a criminal charge. A person who voluntarily
     uses intoxicants or drugs cannot become so intoxicated or
     drugged that he is legally incapable of committing a
     crime.

N.T., 7/14/15-7/15/15, at 223-224 (emphasis added).




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       Ultimately, the jury returned a verdict of guilty on the fleeing or

attempting to elude a police officer charge. N.T., 7/14/15-7/15/15, at 228.4

On August 26, 2015, the trial court sentenced Appellant to a term of six to

twelve months of incarceration on the fleeing and eluding conviction.

       Appellant filed a timely notice of appeal on September 22, 2015. Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents one issue for this Court’s consideration:

       1. Whether the trial court committed fundamental error by
       instructing the jury on voluntary intoxication when such
       instruction was irrelevant to Appellant’s defense and confused or
       misled the jury in its determination of guilt?

Appellant’s Brief at 4.

       Our standard of review in assessing a trial court’s jury instruction is as

follows:

       When evaluating the propriety of jury instructions, this Court will
       look to the instructions as a whole, and not simply isolated
       portions, to determine if the instructions were improper. We
       further note that, it is an unquestionable maxim of law in this
       Commonwealth that a trial court has broad discretion in phrasing
       its instructions, and may choose its own wording so long as the
       law is clearly, adequately, and accurately presented to the jury
       for its consideration. Only where there is an abuse of discretion
       or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).


____________________________________________


4
   While we are reviewing only the jury instruction with respect to the traffic
violation, we note that the trial court found Appellant guilty of the summary
offense of failing to stop at the red light. N.T., 7/14/15-7/15/15, at 229.



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      The Crimes Code discusses the ramifications of voluntary intoxication

as follows:

      Intoxication or drugged condition

      Neither voluntary intoxication nor voluntary drugged condition is
      a defense to a criminal charge, nor may evidence of such
      conditions be introduced to negative the element of intent of the
      offense, except that evidence of such intoxication or drugged
      condition of the defendant may be offered by the defendant
      whenever it is relevant to reduce murder from a higher degree
      to a lower degree of murder.

18 Pa.C.S. § 308. In cases of first-degree murder, our Supreme Court has

explained:

      a jury instruction regarding diminished capacity due to voluntary
      intoxication is justified only when the record contains evidence
      that the accused was intoxicated to the point of losing his or her
      faculties or sensibilities. Commonwealth v. Reiff, 489 Pa. 12,
      413 A.2d 672, 674 (1980). Evidence that the accused ingested
      alcohol or other intoxicating drug—without more—does not
      warrant a voluntary intoxication instruction. Id. In Reiff, the
      evidence     showed      that   the   appellant   had     consumed
      approximately two and one-half quarts of beer during the
      several hours before he fatally shot a man, but there was no
      evidence that the appellant exhibited any signs of intoxication or
      unusual behavior. Id. at 673. Accordingly, we held that the
      trial court did not err in refusing to give a jury instruction as to
      diminished capacity due to voluntary intoxication. Id. at 674;
      see also Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d
      203, 220–21 (1997) (holding that the trial court did not err by
      refusing to give a voluntary intoxication charge because, even
      though there was testimony that the appellant had consumed
      some alcohol prior to the killing, there was no evidence that the
      appellant had been overwhelmed or overpowered by alcohol).

Commonwealth v. Padilla, 80 A.3d 1238, 1263-1264 (Pa. 2013).

      Here, Appellant was not charged with murder, and he never introduced

evidence that he was so intoxicated that he lost control of his faculties.

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Rather, his defense was that the police officers’ version of events was

inaccurate, and he would never run from the police. N.T., 7/14/15-7/15/15,

at 156.

      After review, we conclude that voluntary intoxication, as defined in 18

Pa.C.S. § 308, was not available as a defense.      Accordingly, we conclude

that the voluntary intoxication instruction should not have been given when

requested by the Commonwealth.        In colloquial terms, because voluntary

intoxication could not have been used as a shield, we find that it should not

have been utilized as a sword. Appellant never testified or asserted that he

was too intoxicated to understand his actions or the events as they unfolded.

If the rationale for providing the instruction was that the trial court wanted

to make it clear to the jury that voluntary intoxication is not a defense, then

the voluntary intoxication instruction should be given in every criminal case.

Otherwise, it is a superfluous instruction that serves to confuse the jury

where intoxication is not part of the defense theory.

      For the reasons set forth above, we conclude that the trial court erred

and abused its discretion when it instructed the jury on voluntary

intoxication. Accordingly, we reverse the judgment of sentence and remand

for further proceedings consistent with this Memorandum.

      Judgement of sentence reversed.       Case remanded for a new trial.

Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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