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HomeMy WebLinkAbout99-1172 criminalCOMMONWEALTH V , IRA EMANUEL KREITZER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · · NO. 99-1172 CRIMINAL · · IN RE: ,DEFENDANT' S MOTION FOR SUPPRESSION OF EVIDENCE MOTION TO 0UASH THE INFORMATION_ BEFORE GUIDO, J._ ORDER OF COURT AND NOW, this day of NOVEMBER, 1999, the various requests for relief contained in Defendant's Omnibus Pretrial Motion are DENIED. By Edward E. Guido, J. District Attorney ~ichard F. Maffett, Esquire For the Defendant -sld COMMONWEALTH V o IRA EMANUEL KREITZER · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · : · NO. 99-1172 CRIMINAL · · IN RE: DEFENDANT'S MOTION FOR SUPPRESSION OF EVIDENCE MOTION TO QUASH THE INFORMATION BEFORE GUIDO, J. OPINION AND ORDER OF COURT A hearing on Defendant's Omnibus Pretrial Motion was held before this Court on November 3, 1999. The Defendant contends that the investigative detention and his subsequent arrest were unlawful. He further contends that the charges should be dismissed since the criminal complaint was filed more than ten (10) days after his arrest in violation of Pa. Rule of Criminal Procedure 102. Finally, he argues that the Commonwealth has failed to present a prima facie case against him. FINDINGS OF FACT On April 9, 1999, Mr. Richard Bailey was employed at the A Plus Mini Market 'located on 32nd Street in Camp Hill. At around 4-00 a.m., he witnessed the Defendant pull into the parking lot driving a red sports car with two (2) flat tires. The flat tires were located on the passenger side NO. 99-1172 CRIMINAL of the vehicle. The side walls of the tires were shredded. The Defendant pulled over to the air pump, parked and entered the store. The Defendant was staggering and smelled of alcohol as he approached Mr. Bailey to request change. He got change, staggered out the door, and tried to put air into his tires. It was obvious to Mr. Bailey that the tires would not hold air. He called the police to report a possible DUI. Sergeant Olsen of the Camp Hill Police arrived on scene at approximately 4.26 a.m. As he approached the Defendant's vehicle, he noticed the driver's side window was open. He observed the Defendant asleep in the front seat driver's side of the vehicle. The passenger's side seat had numerous articles of clothing and other things sitting on it. The officer noticed a strong odor of alcohol emanating from the vehicle. The officer examined the vehicle and noticed the two (2) tires on the passenger side were almost completely shredded. The tread was separated from the side walls and there were marks on the fender where the rubber had been slapping. It appeared as though the rubber had been slapping for quite some time because of the darkness of the NO. 99-1172 CRIMINAL tire marks on the fender. The officer then questioned Mr. Bailey who related to him the facts as set forth above. The officer then'awakened the Defendant and asked him to open the car door and step from the vehicle. As the Defendant stepped from the vehicle, the officer detected a strong odor of alcohol coming from his breath. The Defendant was unsteady and he staggered toward the police vehicle. At that point, the Defendant was advised that he was under arrest for driving under the influence. The officer requested that he submit to a blood test which the Defendant refused. The officer then took the Defendant to the Central Booking Center for processing. The officer relinquished custody of the Defendant to Central Booking at about 5-00 a.m. While the Defendant was being processed, a state parole detainer was lodged against him. After processing was complete, the Defendant was released into the custody of the state parole authorities. He has been in the custody of those authorities ever since. Later on the morning of April 9, 1999, Sergeant Olsen left for a ten (10) day vacation. He traveled to North Carolina with four other people. He did not return to duty until April 19, 1999, at which time he filed the criminal complaint against the Defendant. The District Justice NO. 99-1172 CRIMINAL issued a summons on April 19, 1999. On that same day it became apparent that the Defendant was in custody of the state parole authorities, so a warrant was issued for his arrest. The warrant was served on May 19, 1999. Defendant's first preliminary hearing was scheduled for May 26, 1999. At the request of defense counsel, the preliminary hearing was rescheduled for June 3, 1999. CONCLUSIONS OF LAW 1) The initial questioning and subsequent arrest of the Defendant were lawful. 2) The Commonwealth has presented a prima facie case against the Defendant with regard to the charge of driving under the influence. 3) The Defendant has not shown that he was prejudiced as a result of the Commonwealth's violation of Pa. Rule of Criminal Procedure 102. DISCUSSION Investigative Detention And Arrest The Pennsylvania Supreme Court has set forth three (3) categories of interaction between citizens and police, each of which must be supported by different levels of suspicion. Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043(1995). The first is a mere encounter or request for information which need not be supported by any level of suspicion. The second category of interaction is an investigative stop or detention, which must be supported by NO. 99-1172 CRIMINAL reasonable suspicion that criminal activity is afoot. The third category of interaction is an arrest or custodial detention which must be supported by probable cause to believe that the suspect is en~a~ed in criminal activity. Se___~e Elli______~, ~ 662 A.2d at 1047. At the time Sergeant Olsen approached the Defendant's vehicle, he clearly had grounds to effectuate an investigative stop. He had reasonable and articulable , grounds to suspect that the Defendant may have violated various provisions of the Vehicle Code ~ Therefore an · investigative detention was appropriate under Commonwealth v. Ellis, supra, as well as Section 6308(b) of the Vehicle Code· 75 Pa. C.S.A. § 6308(b). Probable cause to effectuate an arrest exists when the facts and circumstances within the knowledge of the police officer are sufficient to justify a person of reasonable caution in believing that the arrestee has committed an offense. Commonwealth v. Romero, 449 Pa. Super. 194, 673 A.2d 374(1996) . In the instant case, the facts and circumstances known to Sergeant Olsen were more than sufficient to justify the arrest. ~ some of the sections that immediately come to mind include Section 3731 (Driving Under the Influence), and Section 3746 (Immediate notice of accident to police department). NO. 99-I172 CRIMINAL At the time he placed the Defendant under arrest, the officer was aware of the following facts- . The Defendant had driven on severely damaged tires for a considerable length of time. . He had attempted to reinflate those severely damaged tires when it was clear that they could not hold air. · The Defendant had a strong odor of alcohol on his breath. . He was unsteady and staggered when he walked. Armed with the above facts and circumstances, the sergeant had sufficient probable cause to believe that the Defendant had operated his car while under the inflUence of alcohol to a degree that rendered him incapable of safe driving. Therefore, the arrest was lawful. Prima Facie Case. Defendant argues that the facts presented at the preliminary hearing failed to establish a prima facie case. He therefore requests that the information be quashed. The Commonwealth bears the burden at the preliminary hearing of establishing at least that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Gettemy, 404 Pa. Super. 504, 591 A.2d 320 (1991). The evidence must be such that if presented at trial, it would warrant submitting the case to NO. 99-1172 CRIMINAL the jury. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983) . By agreement of counsel, the transcript of the preliminary hearing was presented for our review as Commonwealth Exhibit 1. Our Findings of Fact as set forth above were made on the basis of the testimony presented at , the preliminary hearing. We are satisfied that those facts are sufficient to establish a prima facie case of driving under the influence against the Defendant. Failure To Comply With Pa. Rule Of Criminal Procedure 102. Pa. Rule of Criminal Procedure 102 provides in relevant part as follows- RULE 102. PROCEDURE IN COURT CASES INITIATED BY ARREST WITHOUT WARRANT (b) When the arresting officer deems it appropriate, the officer may promptly release from custody a defendant who has been arrested without a warrant, rather than taking the defendant before the issuing authority, ... (c) When a defendant is released pursuant to paragraph (b), a complaint shall be filed against the defendant within 5 days of the defendant's release. The officer's failure to file the criminal complaint against the Defendant until ten (10) days after the initial arrest is a clear violation of the Rule. However, in Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987) our NO. 99-1172 CRIMINAL Supreme Court held that this rule must be read in conjunction with Rule 150 which provides as follows- RULE 150. DEFECTS IN FORM, CONTEAVf, OR PROCEDURE-COURT CASES A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant. While the Defendant properly raised the procedural defect at the preliminary hearing, we are not convinced that he has shown that the defect was prejudicial to his rights. At the evidentiary hearing Defendant's counsel questioned Mr. Bailey at length to establish that the window display at the Mini Market has changed numerous times since April 9, 1999. He also established that Mr. Bailey does not now remember what the display was like on that date. He argues that since Mr. Bailey is the only witness able to identify his client as the driver of the vehicle, any obstruction to his vision through the window is crucial to the defense. Since Mr. Bailey does not now remember what obstructions might have been there seven (7) months ago, counsel argues that his client has been prejudiced. NO. 99-1172 CRIMINAL We perceive several flaws in defense counsel's reasoning. In the first instance, counsel did not question Mr. Bailey at the preliminary hearing more than five (5) months earlier as to any possible obstructions to his view on the night in question. We fail to see how a five (5) day delay in filing the complaint prejudiced the Defendant in this regard. Additionally, Mr. Bailey testified at the preliminary hearing that he viewed the Defendant not only through the window, but he also came out to the doorway to watch the unusual happenings. Therefore, the window display would be irrelevant. For the reasons set forth above, we are satisfied that the claims raised in Defendant's Omnibus Pretrial Motion are without merit. Therefore, we will enter the order that follows. ORDER AND NOW, this 16TM day of NOVEMBER, 1999, the various requests for relief contained in Defendant's Omnibus Pretrial Motion are DENIED. By the Court, /s/Edward E. Gui do_ Edward E. Gui do, J. District Attorney NO. 99-1172 CRIMINAL Ri chard F. Maffett, For the Defendant -sld Esquire 10