HomeMy WebLinkAboutCP-21-CR-2550-2006
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) DRIVING UNDER THE
v. : INFLUENCE, GENERAL
: IMPAIRMENT
: (2) DRIVING UNDER THE
: INFLUENCE, HIGHEST RATE
STEVEN RAY PARKS, II :
OTN: L296091-5 : CP-21-CR-2550-2006
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., October 24, 2007.
In this criminal case, Defendant was found guilty following a bench trial of
driving under the influence in the form of driving after imbibing, general
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impairment, and driving under the influence in the form of driving after imbibing,
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highest rate. He was sentenced as a third offender.
From the judgment of sentence Defendant has filed an appeal to the
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Pennsylvania Superior Court. The bases for the appeal have been expressed as
follows in Defendant’s statement of matters complained of on appeal:
1. The trial court erred in denying Defendant’s Omnibus Pre-Trial
Motion to suppress evidence on the basis that the police lacked probable
cause or a reasonable suspicion to stop defendant’s vehicle.
2. Section 6308(b) of the Pennsylvania Motor Vehicle Code as
amended by Act 24 of 2003 is unconstitutional since it violates Article 1,
§8 of the Pa. Constitution.
3. Section 6308(b) of the Pennsylvania Motor Vehicle Code as
amended by Act 24 of 2003 violates the Separation of Powers Doctrine
and constitutes an invalid attempt to interfere with prior court
interpretations of the rights and protections afforded Pennsylvania citizens.
1
Act of September 30, 2003, P.L. 120, §16, as amended, 75 Pa. C.S. §3802(a)(1) (2007 Supp.).
2
Act of Act of September 30, 2003, P.L. 120, §16, as amended, 75 Pa. C.S. §3802(c); Order of
Court, August 20, 2007.
3
Order of Court, October 2, 2007.
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Defendant’s Notice of Appeal, filed October 3, 2007. Defendant remains at liberty on his own
recognizance pending disposition of the appeal. Order of Court, October 2, 2007.
4. The trial court erred in denying the defendant’s motion to suppress
evidence acquired as a result of a violation of defendant’s right to counsel
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under the Pennsylvania (Article 1, §9) and United States (6 Amendment)
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Constitutions.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident occurring around 2:00 a.m. on Friday, June 9,
2006, Defendant was charged with driving under the influence in the form of
driving after imbibing, general impairment, and driving under the influence in the
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form of driving after imbibing, highest rate. Following formal arraignment,
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Defendant filed an omnibus pretrial motion for relief on December 21, 2006.
Defendant’s pretrial motion consisted, inter alia, of (a) a Motion To
Suppress Evidence: Lack of Probable Cause/Reasonable Suspicion To Stop, (b) a
Motion To Suppress Evidence Acquired by Chemical Testing for Violation of
Defendant’s Right to Counsel under the Pennsylvania (Article 1, §9) and United
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States (6 & 14 Amendments) Constitution, (c) a Motion To Suppress Results of
Chemical Testing, and (d) a Motion To Dismiss Charge for Violation of
Defendant’s Substantive Due Process under the Pennsylvania (Article I, §9) and
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United States (5 and 14 Amendments) Constitution. The omnibus pretrial
motion did not mention the separation of powers doctrine.
With respect to the Motion To Suppress Evidence Acquired by Chemical
Testing for Violation of Defendant’s Right to Counsel under the Pennsylvania
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(Article I, §9) and United States (6 and 14 Amendments) Constitution, the
following specific grounds were stated:
5
Defendant’s Concise Statement of Matters Complained of on the Appeal, filed October 10,
2007.
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Criminal Complaint, filed June 20, 2006.
7
Defendant’s Omnibus Pretrial Motion for Relief, filed December 21, 2006.
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Id.
2
18. Following his arrest Defendant was asked to submit to chemical
testing.
19. The officer was aware that results of chemical testing would
subject Defendant to criminal fines and penalties.
20. The Defendant required aid in coping with this decision of legal
and criminal consequence, while being confronted by his adversary.
21. This resulted in a critical stage in the criminal prosecution,
wherein the defendant was entitled to counsel.
22. The Defendant was denied counsel in violation of his
Pennsylvania and United States Constitutional rights.
23. The Commonwealth now wishes to introduce evidence of the
Defendant’s chemical testing for the purposes of obtaining a criminal
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conviction and enhanced criminal penalties under 75 Pa.C.S.A. § 3804(c).
With respect to the Motion To Suppress Results of Chemical Testing, the
following specific grounds were stated:
25. Article 1, §9 of the Pennsylvania Constitution provides that an
accused “cannot be compelled to give evidence against himself . . .”
26. [The affiant], acting on behalf of the Commonwealth, compelled
the Defendant to provide Breath for chemical testing, by providing
Defendant with chemical test warnings that threaten him with a higher
term of imprisonment and fines if he does not provide the blood evidence.
27. It is precisely this threat of a greater loss of liberty and property
that compelled Defendant to give this evidence against himself.
With respect to the Motion To Dismiss Charge for Violation of Defendant’s
Substantive Due Process under the Pennsylvania (Article I, §9) and United States
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(5 and 14 Amendments) Constitution, the following specific grounds were
stated:
29. The Defendant has been charged with violating 75 P.S. 3802(a)(1)
and (c).
30. Defendant submits that 75 P.S. §§3802, 3803, and 3804 are
unconstitutional.
31. These provisions are unconstitutional because they violate
substantive due process by being vague and overbroad (see
Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996).
a. Chapter 38 of the vehicle code does not define the
criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited.
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Defendant’s Omnibus Pretrial Motion for Relief, paras. 18-23.
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b. The statute encourages arbitrary and
discriminatory enforcement.
c. The Statute fails to give a person of ordinary
intelligence notice that his/her contemplated conduct is
forbidden.
d. The statute’s reach punishes constitutionally
protected activity as well as illegal activity.
e. The language of the statute encompasses a variety
of protected lawful conduct.
f. The statute unnecessarily sweeps broadly into
activity that has not been declared unlawful in the
Commonwealth.
32. These provisions are unconstitutional because they are not
rationally related to the state’s interest in curbing DUI offenders.
33. These provisions are unconstitutional because the legislature has
removed from the jury the assessment of facts, other than the fact of a
prior conviction, that increase the prescribed range of penalties to which
the Defendant is exposed, and does not require that such facts be
established by proof beyond a reasonable doubt.
34. These provisions are unconstitutional because the statute fails to
provide a rebuttable presumption that the accused’s BAC at the time of
testing accurately reflects their BAC at the time of driving.
35. These provisions are unconstitutional because they fail to provide
for an affirmative defense requiring the state to prove that the accused’s
BAC was at least .08% at the time of driving.
36. These provisions are unconstitutional because they arbitrarily and
capriciously create a BAC classification scheme that has no relation to the
relative inability of a person to function at each level.
37. These provisions are unconstitutional because they encompass
both lawful and unlawful conduct.
38. These provisions are unconstitutional because they fail to provide
a reasonable standard by which a person may gauge their conduct.
39. These provisions are unconstitutional because they encourage
arbitrary and discriminatory enforcement.
40. The Commonwealth violated the Defendant’s United States and
Pennsylvania Constitutional Rights by charging him with such an
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unconstitutional statute.
A hearing on Defendant’s omnibus pretrial motion was held by the
undersigned judge on March 26, 2007. At the hearing, the affiant in the case,
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Id.
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Patrolman Lane Pryor of the Camp Hill Borough Police Department, testified on
behalf of the Commonwealth, and Defendant, Steven Ray Parks, II, of
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Mechanicsburg, Pennsylvania, testified on his own behalf.
The testimony of Patrolman Pryor, in pertinent part, may be summarized as
follows. On Friday, June 9, 2006, at 2:13 a.m., he was in an unmarked patrol car
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in the Borough of Camp Hill, Cumberland County, Pennsylvania. At that time,
he was stopped at a traffic light on Market Street at its intersection with Thirty-
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Second Street, facing west. Across the intersection and facing east was a silver
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SUV which appeared to have its high beams on.
Upon receiving an advanced green signal, the SUV came forward as if to
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traverse the intersection, then executed a wide right turn, entering the left of
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two southbound lanes on Thirty-Second Street. Proceeding south on Thirty-
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Second Street, also known as Route 15, the vehicle drifted into the right lane of
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travel without signaling, as Officer Pryor followed. After traveling about 1.1
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miles, the vehicle started to exit the highway, then abruptly jerked back and
11
N.T. 6, Hearing, March 26, 2007.
12
N.T. 52, Hearing, March 26, 2007.
13
N.T. 6, 13, Hearing, March 26, 2007.
14
N.T. 6, Hearing, March 26, 2007.
15
N.T. 6, 41, Hearing, March 26, 2007.
16
N.T. 6-8, 24, Hearing, March 26, 2007.
17
N.T. 7, Hearing, March 26, 2007.
18
N.T. 7, Hearing, March 26, 2007.
19
N.T. 8, Hearing, March 26, 2007.
20
N.T. 7-9, 26-27, Hearing, March 26, 2007.
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N.T. 9, Hearing, March 26, 2007.
22
N.T. 33, Hearing, March 26, 2007.
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N.T. 9-10, 28-32, Hearing, March 26, 2007.
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continued past the exit. This maneuver was described by Officer Pryor as
follows:
A . . . At this point he was in the right lane, and it appeared he
was entering the ramp from 32nd Street to travel onto Route 581 west
towards Carlisle.
He entered that ramp area, and at the last moment jerked the
wheel over to the left, crossing back over into the right lane that he was
originally in, and continuing south on now Route 15, which is also South
32nd Street, and continued south then.
Q What happened after that?
A I stayed behind the vehicle, and after seeing that erratic
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movement from the driver, I activated my police video camera . . . .
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During the next 1.9 miles, the vehicle weaved within its lane, contacting
the dotted line between the two southbound lanes and drifting to the fog line along
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the right side of the highway. At a point about three miles from the intersection
28
where it had first been observed, the vehicle made an erratic and unsafe exit from
the highway, described by Officer Pryor as follows:
A The driver entered the off-ramp from 15 South at the Slate
Hill Road exit, which is a very sharp exit ramp. It almost—for most
intents and purposes it’s about a 180 degree angle at that ramp. I was
anticipating the driver either crashing or going completely off the
roadway. He was traveling way too fast off the ramp. His tires were
squealing. He was obviously not in control of the vehicle as he made that
hairpin turn, and upon regaining control after coming out of the turn, his
four-way flashers immediately came on as he continued off the ramp
towards Slate Hill Road.
Q Okay. So he’s still on the roadway with his four-ways
flashing?
A Now he has his four-ways on after squealing his tires and
almost leaving the roadway completely.
Q Is he then traveling in the road when he has the four-way
flashers on?
A Yes.
24
N.T. 9, Hearing, March 26, 2007.
25
N.T. 9-10, Hearing, March 26, 2007.
26
N.T. 33, Hearing, March 26, 2007.
27
N.T. 10-11, Hearing, March 26, 2007.
28
N.T. 33, Hearing, March 26, 2007.
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Q Okay. What happens after that?
A At that point I did activate my emergency lights. I [had]
observed a couple of traffic violations and the erratic driving on two
occasions, and I felt that he needed to be stopped before an accident did
occur or somebody got hurt. So I activated my emergency lights, and he
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stopped at the stop sign at Slate Hill and the off-ramp there from 15.
30
Defendant was the driver of the vehicle in question. Following his arrest,
he was read the implied consent warning by Officer Pryor, in accordance with the
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DL-26 Form issued by the Pennsylvania Department of Transportation:
1. Please be advised that you are under arrest for driving under the
influence of alcohol or controlled substance in violation of Section 3802 of
the Vehicle Code.
2. I am requesting that you submit to a chemical test of breath.
3. It is my duty as a police officer to inform you that if you refuse to
submit to the chemical test, your operating privilege will be suspended for
at least 12 months, and up to 18 months, if you have prior refusals or have
been previously sentenced for driving under the influence. In addition, if
you refuse to submit to the chemical test, and you are convicted of or plead
to violating Section 3802(a)(1) (relating to impaired driving) of the
Vehicle Code, because of your refusal, you will be subject to the more
severe penalties set forth in Section 3804(c) (relating to penalties) of the
Vehicle Code, which include a minimum of 72 hours in jail and a
minimum fine of $1,000.00, up to a maximum of five years in jail and a
maximum of $10,000.
4. It is also my duty as a police officer to inform you that you have no
right to speak with an attorney or anyone else before deciding whether to
submit to testing and any request to speak with an attorney or anyone else
after being provided these warnings or remaining silent when asked to
submit to chemical testing will constitute a refusal, resulting in the
suspension of your operating privilege and other enhanced criminal
sanctions if you are convicted of violating Section 3802(a) of the Vehicle
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Code.
Defendant acknowledged this information by his signature on the form, had
no questions as to its meaning, did not request an attorney, and submitted to the
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test.
29
N.T. 11-12, Hearing, March 26, 2007.
30
N.T. 13, Hearing, March 26, 2007.
31
N.T. 14, Hearing, March 26, 2007.
32
Commonwealth’s Exhibit 1, Hearing, March 26, 2007.
33
N.T. 14-16, Hearing, March 26, 2007.
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The testimony of Defendant, which included his narrative of events shown
on the video recording made by Officer Pryor, may be summarized in pertinent
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part as follows. The high beams on Defendant’s vehicle had not in fact been on;
while he was traveling in the right lane on Route 15, the wheels of his vehicle may
have touched the dotted line separating the southbound lanes but they did not cross
3536
it; prior to exiting Route 15, he applied his brakes and slowed down; the tires
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of his vehicle did not squeal when he exited the highway; and his activation of
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his four-way flashers was in response to the police signal to stop.
At the conclusion of the hearing on Defendant’s omnibus pretrial motion,
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the court denied the motion. A bench trial was held on August 20, 2007.
The breath test administered to Defendant had produced an alcohol content
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result of .190% as of 3:15 a.m. on the morning in question, and Defendant was
found guilty at the bench trial of driving under the influence in the form of driving
after imbibing, general impairment, in violation of Section 3802(a)(1) of the
Vehicle Code (incapable of safe driving), a misdemeanor of the second degree,
and driving under the influence in the form of driving after imbibing, highest rate,
in violation of Section 3802(c) of the Vehicle Code (breath alcohol content level
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of .16% or greater within two hours of driving).
34
N.T. 57, Hearing, March 26, 2007.
35
N.T. 53, Hearing, March 26, 2007.
36
N.T. 58, Hearing, March 26, 2007.
37
N.T. 58, Hearing, March 26, 2007.
38
N.T. 55, Hearing, March 26, 2007.
39
Order of Court, March 26, 2007.
40
N.T. 5-6, Trial, August 20, 2007.
41
Order of Court, August 20, 2007.
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Defendant was sentenced on the latter charge in accordance with the
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mandatory minimum sentence applicable to a third offense, on October 2, 2007.
For sentencing purposes, the former charge was deemed to merge with the more
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serious one.
Defendant’s notice of appeal from the judgment of sentence was filed on
October 3, 2007.
DISCUSSION
Legality of stop of Defendant’s vehicle. On a motion to suppress evidence,
“[t]he Commonwealth shall have the burden of going forward with the evidence
and of establishing that the challenged evidence was not obtained in violation of
the defendant’s rights.” Pa. R. Crim. P. 581(H). The degree of proof required is a
preponderance of the evidence. Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa.
Super. 1998).
At a suppression hearing, “[i]t is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight to be
given to their testimony. . . . The suppression court is free to believe all, some or
none of the evidence presented at the suppression hearing.” Commonwealth v.
Elmody, 2003 PA Super 158, ¶3, 823 A.2d 180, 183 (citations omitted).
Under Section 6308(b) of the Vehicle Code, “[w]henever a police officer
. . . has a reasonable suspicion that a violation of [the Vehicle Code] is occurring
or has occurred, he may stop a vehicle, upon request or signal, for the purpose of
checking the vehicle’s registration, proof of financial responsibility, vehicle
identification number or engine number or the driver’s license, or to secure such
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Order of Court, October 2, 2007. Specifically, Defendant received an intermediate punishment
sentence of 60 months, the first year of which was to be served in the county’s restrictive
intermediate punishment program, with at least the first 120 days to be spent in the county
prison’s work release program and the balance of the first year to be spent in the county’s
electronic monitoring program. Id.
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Order of Court, October 2, 2007.
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other information as the officer may reasonably believe to be necessary to enforce
the provisions of [the Vehicle Code].” Act of June 17, 1976, P.L. 162, §1, as
amended, 75 Pa. C.S. §6308(b). Under this provision, the “quantum of cause an
officer must possess” for such a stop is less than probable cause. Commonwealth
v. Fulton, 2007 PA Super 97, ¶2 n.2, 921 A.2d 1239, 1240 n.2.
Under Section 3334 of the Vehicle Code, “[u]pon a roadway no person
shall . . . move from one traffic lane to another . . . without giving an appropriate
signal in the manner provided in this section.” Act of June 17, 1976, P.L. 162, §1,
75 Pa. C.S. §3334(a). Under Section 3714 of the Vehicle Code, “[a]ny person
who drives a vehicle in careless disregard for the safety of persons or property is
guilty of careless driving, a summary offense.” Act of June 17, 1976, P.L. 162,
§1, as amended, 75 Pa. C.S. §3714.
In addition, under Section 3802(a)(1) of the Vehicle Code, “[a]n individual
may not drive, operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in actual physical control
of the movement of the vehicle.” Act of September 30, 2003, P.L. 120, §16, as
amended, 75 Pa. C.S. §3802(a)(1). Common indicia of drunk driving include
erratic or unsafe driving. See Commonwealth v. Glomer, 445 Pa. Super. 571, 665
A.2d 1269 (1965); Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245
(1990); Commonwealth v. Lymph, 372 Pa. Super. 97, 538 A.2d 1368 (1988);
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Commonwealth v. Lawrentz, 453 Pa. Super. 118, 683 A.2d 303 (1986).
In the present case, where Defendant was observed by a police officer (a)
displaying indicia of drunk driving in the form of erratic and unsafe driving by
weaving within his lane, abruptly altering course, and negotiating an exit ramp at a
precarious speed, and (b) changing lanes without a signal, it is believed that the
Commonwealth proved by a preponderance of the evidence that Officer Pryor’s
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Obviously, the matter is one of degree; not every minor variance from the norm would justify a
traffic stop. Cf. Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995).
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stop of Defendant’s vehicle was based upon, at a minimum, a reasonable suspicion
that Defendant was driving under the influence and upon an even higher degree of
assurance—probable cause—that Defendant had committed a summary traffic
offense.
Compatibility of Section 6308(b) of Vehicle with Article I, Section 8, of
Pennsylvania Constitution. Section 8 of Article I of the Pennsylvania Constitution
provides as follows:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no warrant to
search any place or to seize any person or things shall issue without
describing them as nearly as may be, nor without probable cause,
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supported by oath or affirmation subscribed to by the affiant.
As noted, Section 6308(a) of the Vehicle Code authorizes a police officer
who “has a reasonable suspicion that a violation of [the Vehicle Code] is occurring
46
or has occurred” to stop a vehicle. The argument that this degree of cause for a
vehicle stop is not compatible with Section 8 of Article I of the Pennsylvania
Constitution has been rejected by the Pennsylvania Superior Court where the stop
is for drunk driving. Commonwealth v. Sands, 2005 PA Super 372, 887 A.2d 261
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Pennsylvania Constitution, Art. I, §8.
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Part of the history of this provision was summarized by Judge Olszewski of the Pennsylvania
Superior Court in a concurring opinion in Commonwealth v. Sands, 2005 PA Super 372, ¶2, 887
A.2d 261, 272:
In Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995),
our Supreme Court addressed the difference between the standard
articulated in prior court decisions (probable cause to believe that there has
been a violation of the vehicle code) and the language of the applicable
statute (articulable and reasonable grounds to suspect a violation of the
vehicle code), holding that “the two standards amount to nothing more
than a distinction without a difference.” The Court also noted that they
had previously held that “a stop of a single vehicle is unreasonable where
there is no outward sign the vehicle or the operator are in violation of the
vehicle code . . . before the government may single out one automobile to
stop, there must be specific facts justifying this intrusion,” and that the
legislature has vested police officers “with the authority to stop vehicles
whenever they have articulable and reasonable grounds to suspect a
violation of the vehicle code.” Whitmyer, 668 A.2d at 1116-17.
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(leaving question open as to whether probable cause constitutionally required for
stop based upon summary traffic violation).
In the present case, involving at least a reasonable suspicion that Defendant
was driving under the influence, and probable cause to believe that he had
committed a summary traffic offense, relief based upon the alleged incompatibility
of Section 6308(b) of the Vehicle Code with Article I, Section 8, of the
Pennsylvania Constitution was not required.
Compatibility of Section 6308(b) with separation of powers doctrine. As a
general rule, an appellant may not secure relief on appeal based on an argument
not raised in the lower court. Pa. R.A.P. 302(a).
“In Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995), our
Supreme Court considered the Commonwealth’s claim that the ‘articulable and
reasonable grounds’ standard contained in the former Section 6308(b) was
equivalent to a reasonable suspicion standard. The court rejected this argument,
finding it to be one of semantics, and held that the ‘articulable and reasonable
grounds’ standard was equal to a probable cause standard.” Commonwealth v.
Sands, 2005 PA Super 372, ¶8, 887 A.2d 261, 265-66.
In the present case, it does not appear that Defendant preserved an
argument as to the invalidity of Section 6308(b) of the Vehicle Code based upon
the separation of powers doctrine. To the extent that the issue was preserved, it
was not meritorious inasmuch as the legislature’s action in amending Section
6308(b) did not seek enforcement of the statute in defiance of the Court’s
interpretation but accepted the holding and altered the standard by a change in
language.
Right to counsel. The argument that Pennsylvania’s implied consent law is
violative of a defendant’s right to counsel been rejected by the Pennsylvania
Superior Court. Commonwealth v. Beshore, 2007 PA Super 19, 916 A.2d 1128.
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For the foregoing reasons, it is believed that the judgment of sentence
appealed from in this case was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Christylee Peck, Esq.
Senior Assistant District Attorney
Patrick F. Lauer, Jr., Esq.
2108 Market Street
Aztec Building
Camp Hill, PA 17011-4706
Attorney for Defendant
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