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HomeMy WebLinkAbout00-1944 criminalCOMMONWEALTH VS. GREGORY J. KOVELESKI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1944 CRIMINAL IN RE: OPINION PURSUANT TO PA.R.A.P. 1925 Following a jury trial before the undersigned, the defendant was convicted on a count of driving under the influence and driving under suspension (DUI related). He was sentenced on March 20, 2001; on a count of driving under the influence to undergo imprisonment for not less than six months nor more than eighteen months, and on the charge of driving under suspension to undergo imprisonment for a mandatory ninety-day prison term to run consecutively to the sentence for driving under the influence. The defendant has appealed. In a statement filed with the court, the defendant complains on appeal as follows: 1. The Defendant submits that he did not violate any provision of the motor vehicle code. 2. The Defendant submits that he was not driving erratically. 3. The Defendant submits that the police officer lacked a reasonable and articulable suspicion so as to justify the stop of Defendant's vehicle. 4. The Defendant submiis that his Fourth Amendment Rights pursuant to the United States and Pennsylvania Constitution had been violated as a result of the unlawful traffic stop. 5. The Defendant submits that the trial court should have granted Defendant's Omnibus Pre-trial motion to suppress all evidence as a result of the unlawful traffic stop. While one or two of these points might appear to apply to the merits of Mr. Koveleski's conviction, we are satisfied that, taken as a whole, the matters which he complains of on appeal are limited to the ruling of the court on his omnibus pretrial motion to suppress evidence. Those matters have been ably addressed in an opinion filed by the suppression judge, the Honorable J. Wesley Oler, Jr., of even date herewith. We will, therefore, for the purpose of addressing the defendant's appeal, incorporate Judge Oler's opinion by reference. May 2, 2001 Office of District Attorney ess, J. Patrick F. Lauer, Jr., Esquire For the Defendant :rlm COMMONWEALTH Ve GREGORY J. KOVELESKI OTN: L067051-5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1944 CRIMINAL TERM CHARGE: (1) DUI (2) DUS (DUI-Related) (Summary) IN RE' OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., May Z, 2001. In this criminal case, Defendant has appealed to the Pennsylvania Superior Court from a judgment of sentence for driving under the influence and driving under suspension (DUI related).~ The nonjury trial which resulted in findings of guilt was conducted by the Honorable Kevin A. Hess of this court. Prior to trial, a motion to suppress was filed by Defendant, based upon the legality of a stop of his vehicle.2 Following a hearing, the motion was denied by the writer of this opinion.3 On appeal to the Superior Court, Defendant challenges the correctness of this pretrial ruling, asserting in a statement of matters complained of on appeal as follows' 1. The Defendant submits that he did not violate any provision of the motor vehicle code. ~ Defendant was sentenced on March 20, 2001. With respect to the charge of driving under the influence, which was a sixth offense overall, he was sentenced to pay a fine of $300.00 and to undergo imprisonment in the Cumberland County Prison for not less than six months nor more than eighteen months; with respect to the charge of driving under suspension (DUI related) he was sentenced to pay a mandatory fine of $1,000.00 and to undergo imprisonment in the Cumberland County Prison for a mandatory term of 90 days, said sentence to run consecutively to the sentence for driving under the influence. See Exhibit 3, Nonjury Trial, January 19, 2001; Order of Court, March 20, 2001 (Hess, J.). Defendant's continued release was authorized, conditioned upon his timely filing of a post-sentence motion or appeal. Id. 2 Defendant's Motion To Suppress, filed November 3, 2000; see Notes of Testimony 3, Hearing, Defendant's Motion To Suppress, January 8, 2001 (hereinafter Suppression Hearing, N.T. .). 3 Order of Court, January 8, 2001. 2. The Defendant submits that he was not driving erratically. 3. The Defendant submits that the police officer lacked a reasonable and articulable suspicion so as to justify the stop of Defendant's vehicle. 4. The Defendant submits that his FOurth Amendment Rights pursuant to the United States and Pennsylvania Constitution had been violated as a result of the unlawful traffic stop. 5. The Defendant submits that the trial court should have granted Defendant's Omnibus Pre-trial motion to suppress all 4 evidence as a result of the unlawful traffic stop. This opinion in support of the court's denial of Defendant's suppression motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). PROCEDURAI~ HISTORY; STATEMENT OF FACTS As the result of an incident on July 8, 2000,5 Defendant was arrested and charged with driving under the influence and driving under suspension (DUI related). Following formal arraignment, he filed a motion to suppress evidence6 based upon the legality of a stop of his vehicle under the Federal and Pennsylvania Constitutions The A hearing on Defendant' evidence at the hearing satisfaction. s motion to suppress was held on January 8, 2001. established the following facts to the court's On the night of Saturday, July 8, 2000, Defendant's spouse reported to State Police in Perry County, Pennsylvania, that Defendant, who was intoxicated, was leaving her parents' premises in Perry County en route to a mobile home park 4 Defendant's Concise Statement of the Matters Complained of on the Appeal, filed April 25, 2001. s Suppression Hearing N.T. 3-4. 6 Defendant's Motion To Suppress, filed November 3, 2000. 7 See Suppression Hearing N.T. 3. in Middlesex Township, Cumberland County, Pennsylvania.a She provided a description of the vehicle he was driving and its license number.° Middlesex Township Police Officer Richard Gibney, who was on patrol in a marked police car, received this dispatch at 10'50 p.m., positioned himself along Defendant's probable route of travel, and spotted the vehicle at 11:05 p.m.~° He followed the vehicle on a two-lane road for approximately a mile before stopping it.1~ During this time, D¢£¢ndant's minivan traveled slowly at 25 miles per hour in 35- and 30-mile-per-hour zones, drifted back and forth within its lane, crossed a double yellow linc six inches into thc oncoming lane of traffic for a period of three to four seconds, and made an abrupt correction to return to thc proper lane.~2 Based upon the report of Defendant's spouse and his corroborative observations, the officer stopped D¢£¢ndant's vehicle. Further investigation resulted in the charges indicated. At the conclusion of the hearing, the court entered the order denying Defendant's motion to suppress based upon the legality of' the stop. DISCUSSION When a defendant files a motion to suppress, thc burden is on the Commonwealth to establish by a preponderance of thc evidence that the challenged evidence is admissible. Commonwealth v. De.itt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 (1992); Commonwealth v. Benton, 440 Pa. Super. 441,444, 655 A.2d 1030, 1032 (1995); Pa. R. Crim. P. 323(h) (now Pa. R. Crim. P. 581[H]). s Suppression Hearing N.T. 4-5, 10-13. Perry County and Cumberland County are adjacent counties. Suppression Hearing N.T. 14. The reported destination of Defendant in Cumberland County was approximately two and a half miles from the Perry/Cumberland line. Suppression Hearing N.T. 11, 14. 9 Suppression Hearing N.T. 6. 10 Suppression Hearing N.T. 4-5, 7, 12, 13. ~ Suppression Hearing N.T. 7, 9, 11. ~2 Suppression Hearing N.T. 8-9, 11-12. Under the Fourth Amendment to the Federal Constitution, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated .... "Under Article 1, Section 8, of the Pennsylvania Constitution, "[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures For a stop of a motor vehicle for a violation of the Vehicle Code to be valid, the police officer must have at least reasonable and articulable grounds to believe that a violation of the Code has occurred. DeWitt, 530 Pa. at 303-04, 608 A.2d at 1032; Commonwealth v. McElroy, 428 Pa. Super. 69, 76, 630 A.2d 34, 39 (1993), appeal denied, 543 Pa. 729, 673 A.2d 335 (1996). The totality of the circumstances known to the officer are to be considered in a determination of the issue. See Commonwealth v. Gayle, 449 Pa. Super. 247, 256, 673 A.2d 927, 931 (1996). In the present case, specific and articulable facts supporting the suspicion of Officer Gibney that a Vehicle Code violation in the form of driving under the influence was occurring when he stopped Defendant's vehicle included his receipt of a report from an identified informant in the person of Defendant's wife that Defendant was driving while intoxicated,13 and his own observations which tended to corroborate the report.14 These observations included Defendant's appearance on a highway, at a time, in a vehicle, consistent with the report,15 and his display of common indicia of driving under the influence. ~ See, e.g., Commonwealth v. Korenkiewicz, 743 A.2d 958 (Pa. Super. Ct. 1999), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000). ~4 See, e.g., Commonwealth v. Start, 739 A.2d 191 (Pa. Super. Ct. 1999). 15 See, e.g., Commonwealth v. Korenkiewicz, 743 A.2d 958 (Pa. Super. Ct. 1999), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000). These indicia included erratic driving in the form of slow travel,~6 weaving within his lane of traffic,~7 crossing the double yellow center line of a two-lane highway to a significant degree for several seconds,Is and an abrupt correction.~9 The totality of these circumstances, known to the officer at the time of Defendant's stop, represented, in the court's view, sufficient specific and articulable facts to warrant a reasonable suspicion that a violation of the Vehicle Code was occurring. For this reason, Defendant's motion to suppress the evidence against him on the ground that the stop of his vehicle was without a lawful basis was denied. Michael Mervine, Esq. Assistant District Attorney Patrick F. Lauer, Jr., Esq. Aztec Building 2108 Market Street Camp Hill, PA 17011-4706 Attorney for Defendant B Y THE COURT, JOWesley Ole ,~., Ji ~/ 16 See generally Commonwealth v. McGrady, 454 Pa. Super. 444, 685 A.2d 1008 (1996); 75 Pa. C.S. §§ 3301 (driving on right side of highway), 3307 (no passing zones); 3309 (driving on roadways laned for traffic); 67 Pa. Code 1151 (b)(3) (double yellow line regulation). See Commonwealth v. Howard, 762 A.2d 360 (Pa. Super. Ct. 2000). Id.; Commonwealth v. Montini, 712 A.2d 761 (Pa. Super. Ct. 1998). ~9 See generally Commonwealth v. Graham, 703 A.2d 510 (Pa. Super. Ct. 1997), appeal denied, 553 Pa. 704, 719 A.2d 745 (1998).