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HomeMy WebLinkAbout00-0656 CriminalCOMMONWEALTH Vo RICHARD WAYNE WATTS OTN: L0536071 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DUI NO. 00-0656 CRIMINAL TERM IN RE: DEFENDANT'S POST-SENTENCE MOTION FOR A NEW TRIAL BEFORE OLER, J. ORDER OF COURT AND NOW, this 27th day of April, 2001, upon consideration of Defendant's post- sentence motion for a new trial, and for the reasons stated in the accompanying opinion, Defendant's motion for a new trial is denied. BY THE COURT, Wesley (~'3~., J~ Office of the District Attorney Timothy L. Clawges, Esq. Deputy Public Defender :rc COMMONWEALTH RICHARD WAYNE WATTS OTN: L0536071 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGE: DUI NO. 00-0656 CRIMINAL TERM IN RE: DEFENDANT'S POST-SENTENCE MOTION FOR A NEW TRIAL BEFORE OLER, J. OPINION and ORDER OF COURT Oler, J., April 27, 2001. On December 28, 2000, at the conclusion of a non-jury trial, the court found Defendant, Richard Wayne Watts, guilty of driving under the influence of alcohol in violation of the Vehicle Code at 75 Pa. C.S. §3731(a)(1) and §3731(a)(4).t It was Defendant's fourth offense overall and third offense for mandatory sentencing purposes. Defendant was sentenced on February 6, 2001.2 On February 15, 2001, pursuant to Pennsylvania Rule of Criminal Procedure 1410, Defendant filed a timely post-sentence motion; the motion sought a modification of sentence and/or a new trial? In the motion to modify sentence, Defendant asserts that a provision in his sentencing order requiring installation of a guardian interlock device was based upon an See Order of Court, December 28, 2000. See Order of Court, February 6, 2001, as amended. See Defendant's Post-Sentence Motions, filed February 15,2001. unconstitutional statute and should be vacated.4 In his motion for a new trial, Defendant asserts that his omnibus pre-trial motion to suppress evidence was improperly denied.5 For the reasons articulated in this court's opinion and order of even date herewith, pertaining to Defendant's motion to modify sentence, the motion to modify sentence is being granted.6 For the reasons stated in this opinion, Defendant's motion for a new trial will be denied. STATEMENT OF FACTS On January 15, 2000, Defendant's vehicle was stopped, and he was arrested for driving under the influence of alcohol. Defendant filed an omnibus pre-trial motion for relief on May 11, 2000, seeking suppression of evidence obtained after the stop on two grounds. First, Defendant contended that there was "no articulable and reasonable suspicion to believe the vehicle or operator was in violation of the Vehicle Code.''7 Therefore, he argued, the traffic stop violated the Fourth Amendment to the United States Constitution and Article 1, Section 8, of the Pennsylvania Constitution.8 Second, Defendant asserted that, because the stop occurred outside of the primary jurisdiction of the township police officer effecting it, it violated the Municipal Police Jurisdiction Act (hereinafter MPJA).9 A hearing was held on the motion to suppress on Defendant's Post-Sentence Motions, paras. 1-9. Defendant's Post-Sentence Motions, para. 10. See Order of Court, April 27, 2001. Defendant's Omnibus Pre-trial Motion to Suppress, para. 8, filed May 11, 2000. Defendant's Omnibus Pre-trial Motion to Suppress, para. 9. Defendant's Omnibus Pre-trial Motion to Suppress, para. 10. 2 October 12, 2000. Based upon the evidence presented at the hearing, the motion was denied,l° The evidence presented at the suppression hearing may be summarized as follows. On Saturday, January 15, 2000, at approximately 2:30 a.m., Cumberland County Communications (hereinafter County Control) announced a "be-on-the-lookout" advisory throughout the county for a red Corvette that had been involved in an accident in the Borough of New Cumberland.ii At approximately 2:20 a.m., County Control had received a call from an identified individual who informed it that a red Corvette with a "Pitt" license plate on the front had been involved in an accident in the area of Nick's Cafe in the Borough of New Cumberland and was possibly headed to an establishment known as Wanda's in Hampden Township.12 The source had further reported that the male driver of the vehicle was intoxicated,iD The radio dispatch issued by County Control indicated that the Corvette had last been seen traveling north on Bridge Street in the Borough of New Cumberland, heading toward the Borough of Lemoyne.14 New Cumberland Borough, Hampden Township and Lemoyne Borough are proximate municipalities in Cumberland County. Patrolman Joseph Spadaccino, a police officer employed by the Borough of New Cumberland, who was on patrol in full uniform and in a marked police car, received the l0 Order of Court, October 12, 2000. it Notes of Testimony 4-6, 17, Hearing, Defendant's Omnibus Pre-trial Motion to Suppress, October 12, 2000 (hereinafter N.T. ). ~2 N. T. 6-8, 17, 20. ~3 N.T. 6. 3 dispatch.~5 Earlier in the evening, prior to the dispatch, he had noticed a red Corvette parked on the street in the vicinity of Nick's Cafe.~6 In retrospect, he recalled that "[i]t just stuck out, a red Corvette parked on the street. There aren't that many of them parked down there.''~? At the time of the dispatch, he knew the source of the report to be Nick Nichols, the owner of the bar known as Nick's Cafe.~s The officer was aware that Mr. Nichols had provided similar information on numerous prior occasions.~9 At approximately 3:22 a.m., Patrolman Spadaccino, while operating his patrol vehicle within his own jurisdiction of New Cumberland, observed a red Corvette, being driven by Defendant, operating in the Borough of Lemoyne, approximately a block over 20 The Corvette was traveling north on Third Street in the New Cumberland borough line. the Borough of Lemoyne (which is Bridge Street in the Borough of New Cumberland)? The patrolman followed the vehicle to investigate but did not immediately initiate a stop.22 He followed the Corvette for approximately five to eight miles from Third Street onto Pennsylvania State Route 581 westbound, while attempting to obtain either assistance or permission to stop the vehicle from law enforcement authorities with ~4 Id. ~5 N.T. 3-5. 16 N.T. 9. ~7 Id' la N.T. 7-8. ~9 N.T. 8. 20 N.T. 9-1 1, 20-21. 2t N.T. 10-11,21. 22 N.T. 11-12. 4 primary jurisdiction in the area of travel.23 Defendant's vehicle was weaving within its During the pursuit, he observed that own lane of travel.24 The patrolman eventually obtained authorization from the Pennsylvania State Police to stop the vehicle.25 He testified: I asked County Control over the air to contact the Pennsylvania State Police, since we were now on the highway, and ask them if I could pull the car over and see if they wanted to do the investigation. County Control came back 'to me after a few moments, and they said, yes, the State Police - they contacted them on the phone. They 26 weren't in the area. They said, go ahead and pull the car over. Consequently, the patrolman activated his lights and initiated the stop.27 The pursuit had led the patrolman through the Boroughs of Lemoyne and Camp Hill, and concluded in Hampden Township? Camp Hill Borough is also located in Cumberland County. As he approached the Corvette, the patrolman noticed damage to the driver's side of the vehicle, including damage to the side-view mirror.29 Additionally, upon walking 30 Defendant was around the front of the vehicle, the patrolman saw a Pitt license plate. ultimately charged with driving under the influence. Burden of proof. On a suppression motion, the burden is on the Commonwealth to establish by a preponderance of the evidence that the evidence challenged in a 23 N.T. 12-13. 24 N.T. 1 3. 25 N.T. 13-14. 26 Id. 27 N.T. 14. 28 N.T. 2 1. 29 N.T. 14. 30 Id. 5 Defendant's motion to suppress is admissible. See Pa. R. Crim. P. Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030, 1031 Commonwealth v. Benton, 440 Pa. Super. 441,444, 655 A.2d 1030, 1032 (1995). 323(h); (1992); Reasonable suspicion in support of stop. Pennsylvania law permits police to "seize" a driver for purposes of an investigative detention where the stop is supported by "a reasonable suspicion that criminal activity is occurring." Commonwealth v. Korenkiewicz, 743 A.2d 958, 963 (Pa. Super. Ct. 1999), appeal denied, 563 Pa. 659, 759 A.2d 383 (2000). To justify a stop, the Commonwealth must prove that an officer, at the time of the stop, was in possession of reasonable, articulable facts to suspect a violation. Id. This reasonable suspicion standard requires more that a mere hunch as to the occurrence of a violation. Id. The Superior Court has stated that an officer "need not personally observe the illegal or suspicious conduct, which forms the basis for the reasonable suspicion .... "Id. The Court has held that an officer may initiate a stop based on information provided by third parties or a radio bulletin reporting the illegal or suspicious conduct. Id. at 963-64. With respect to information provided by third parties, it is well recognized that "a tip from a known informer may carry enough indicia of reliability for the police to conduct an investigative stop .... "Id. at 964 (emphasis added). The test in determining whether a tip from a third party is sufficient to justify an investigative stop requires an examination of the "specificity and reliability of the information provided" under the totality of the circumstances. Id. With respect to a tip that a suspect is intoxicated, Pennsylvania law 6 recognizes the proposition that intoxication is a matter of common knowledge and condition within the understanding or powers of observation of ordinary citizens. Id. In this case, the information provided to Patrolman Spadaccino via County Control was supplied by an identified source, Nick Nichols, owner of Nick's Cafe, a bar located in the Borough of New Cumberland. The patrolman testified that Mr. Nichols had provided information to County Control on numerous occasions in the past, and that he had known the source to be Mr. Nichols prior to observing the Corvette. He also testified that he had seen a red Corvette parked in the vicinity of Nick's Cafe earlier that evening. The information provided by Mr. Nichols revealed the following facts: that a red Corvette with a Pitt license plate on the front had been involved in an accident near Nick's Cafe, that the male driver was intoxicated, and that the vehicle was last seen traveling north on Bridge Street in the Borough of New Cumberland toward the Borough of Lemoyne and was possibly headed to Wanda's in Hampden Township. Less than an hour after the be-on-the-lookout advisory had been issued, Patrolman Spadaccino, while patrolling within his jurisdiction, spotted a red Corvette just a block over the borough line traveling north on Third Street in the Borough of Lemoyne, which is Bridge Street in the Borough of New Cumberland. Based upon the totality of the circumstances, the court was of the view that the information conveyed to, and knowledge and observations of, Patrolman Spadaccino more than qualified as specific and articulable facts warranting a belief that criminal activity was afoot and that Defendant was the perpetrator at the time the officer stopped Defendant's vehicle. Municipal Police durisdiction Act. The Municipal Police Jurisdiction Act provides, in pertinent part, as follows: (a) General rule.--Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases: (3) Where the officer has been requested to aid or assist any local, State or Federal law enforcement officer or park police officer or otherwise has probable cause to believe that the other officer is in need of aid or assistance. (5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a ... misdemeanor ... which presents an immediate clear and present danger to persons or property.3~ The Superior Court has held that the MPJA must be liberally construed to effect its objects and to promote justice. Commonwealth v. Ebersole, 342 Pa. Super. 151, 155,492 A.2d 426, 438 (1985). The Superior Court has held that a dispatch may qualify as a request for aid or assistance under the MPJA. See Commonwealth v. Peppers, 357 Pa. Super. 270, 272, 515 A.2d 971, 972 (1986), appeal denied, 515 Pa. 593, 528 A.2d 602 (1987); Commonwealth v. Triplett, 387 Pa. Super. 378, 385, 564 A.2d 227, 231 (1989); Commonwealth v. Lloyd, 701 A.2d 588, 590-91 (Pa. Super. Ct. 1997). Furthermore, the 3~ 42 Pa. C.S. §8953. Court has held that a police department had "requested" the assistance of an officer from another jurisdiction under §8953(a)(3) of the MPJA, even though the officer from the other jurisdiction initiated the contact by sending a radi° message that he was pursuing the car of a suspected drunk driver and asking local police if he should stop the vehicle. Commonwealth v. McHugh, 413 Pa. Super. 572, 576, 605 A.2d 1265, 1267 (1992). This court was of the view that Patrolman Spadaccino's actions ~vere valid under both §8953(a)(3) and (5) of the MPJA. Under §3959(a)(3), Patrolman Spadaccino was authorized to make the stop outside of his jurisdiction as a result of a request to aid and assist by the Pennsylvania State Police. Under McHugh, it is of no consequence that the patrolman rather than the State Police initiated the contact. The response of the State Police that they wanted Patrolman Spadaccino to intervene because they were not in the area and could not handle the matter constituted a request to aid or assist under §8959(a)(3), and the stop was therefore authorized. Under §8959(a)(5), a stop is sanctioned where an officer is on official business, views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer, and where the offense is a misdemeanor which presents an immediate clear and present danger to persons or property. Patrolman Spadaccino was on duty the evening in question in full uniform and a marked police car, satisfying the official business and identification requirements. Furthermore, as indicated previously, the patrolman had at least reasonable suspicion that a misdemeanor, driving under the influence, was occurring. Such reasonable suspicion has been held to be enough to warrant at least an investigative stop 9 under §8959(a)(5). Commonwealth v. Lymph, 372 Pa. Super. 97, 101, 538 A.2d 1368, 1370(1988). Finally, even if the stop did violate the MPJA, the Superior Court has stated that not every extraterritorial stop in violation of the Municipal Police Jurisdiction Act will warrant a suppression of evidence. In Peppers, 357 Pa. Super. at 273,515 A.2d at 973 (citations omitted), the Court stated as follows: Even if we concluded that the arrest was illegal because it was extraterritorial, under these circumstances, the suppression of evidence 'would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.' [T]his court [has] held that the suppression of evidence obtained by a municipal police detective's investigation beyond his primary jurisdiction would not be the proper remedy for such misconduct. Similarly, the remedy would be improper when an officer makes an arrest outside of his jurisdiction in contravention of the Municipal Police Jurisdiction Act. In the present case, given the earlier sighting of Defendant's vehicle by Patrolman Spadaccino within his primary jurisdiction, the inception of the offense within that jurisdiction, the officer's observation, from his primary jurisdiction, of Defendant persisting in the offense in an adjoining municipality, his immediate and uninterrupted pursuit to the point of the stop thereafter, the danger to the public and the operator posed by a driver who is intoxicated, and the officer's efforts to secure approval for his actions from law enforcement authorities within their primary jurisdictions, the court was of the view that suppression of the evidence resulting from the stop would not have been commensurate with the degree of any infraction relating to the Municipal Police Jurisdiction Act on the part of the officer. 10 For the foregoing reasons, Defendant's omnibus pre-trial motion to suppress was denied, and Defendant's motion for new trial, premised upon error in the pre-trial ruling, will also be denied. ORDER OF COURT AND NOW, this 27th day of April, 2001, upon consideration of Defendant's post- sentence motion for a new trial, and for the reasons stated in the accompanying opinion, Defendant's motion for a new trial is denied. BY THE COURT, Office of the District Attorney Timothy L. Clawges, Esq. Deputy Public Defender :re s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 11