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HomeMy WebLinkAbout96-1343 CriminalCOMMONWEALTH VS. CRAIG ALLEN LEVESQUE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 96-1343 CRIMINAL CHARGE: DUI AFFIANT: PTL. GREGORY THOMAS IN RE: OPINION PURSUANT TO RULE 1925 The defendant has appealed from his conviction on a count of driving under the influence. The facts, as adduced at the nonjury trial of this case, are as follows. At around 10:00 p.m. on May 14, 1996, Sergeant Ralph Brown, an off-duty Harrisburg police officer, entered the parking lot of the Texaco Food Mart at 1500 Cedar Cliff Drive. There he observed the defendant, Craig Levesque, stumble out of a pick-up track located in the parking lot and proceed to fall into some nearby bushes and vomit. Perceiving the defendant to be drank, Sergeant Brown asked the store clerk to call 911. The defendant arose from the bushes and climbed back into the driver's seat of the track. Fearing that the defendant was about to drive, Sergeant Brown identified himself as an off-duty police officer and asked the defendant for his keys. The defendant complied and waited for the police to arrive. Officers Thomas, Spaulding and McNair responded to the call and questioned the defendant about the events of that evening. He stated that he had been drinking after work from approximately 6:00 in the afternoon and did not stop drinking until thirty minutes before "being pulled over." He told the officers that he started his trip in Harrisburg at 17th and Paxton Streets and got offI-83 at Exit 19 where he went through the drive-through at McDonald's and then went to the Cedar Cliff Texaco. He said that he had been in the parking lot for no more than an 96-1343 CRIMINAL hour and had nothing to drink there. He further told an officer at the station that in the preceding three hours he had consumed six 12-ounce bottles of Molson Golden at the Stagg Inn. After performing poorly on two field sobriety evaluations, the defendant was arrested and given a breathalyzer test The defendant's blood alcohol content (BAC) was found to be 0.125%. Dr. G. Thomas Passananti, a forensic toxicologist, testified that the defendant's blood alcohol content was above 0.10% when the defendant was operating his vehicle. Initially, the defendant claims that the trial evidence was insufficient to support a conviction. The standard of review for this claim is as follows: ·.. whether, viewing all the evidence introduced at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charged was supported by evidence and inference sufficient in law to prove guilt beyond a reasonable doubt. Com. v. Hlatky, 426 Pa. Super. 66, 77, 626 A.2d 575, 581 (1993) (citing Com. v. Tau Kappa Epsilon, 530 Pa. 416, 419, 609 A.2d 791,793 (1992). Thus, we turn to whether there was sufficient evidence to show that the defendant's blood alcohol content was. 10% or greater at the time he drove the vehicle] Dr. Passananti testified at trial that the defendant's blood alcohol content was above. 10% when he was in actual physical control of the vehicle. The defendant points to Com. v. Jarman to argue that x We realize that the admissibility of the defendant's statements are partially dispositive of this issue and although we have not yet discussed them, we do so infra and find that they are admissible. 96-1343 CRIMINAL the lapse of ninety minutes from the time of the stop and the BAC test, combined with the test result of just 0.125%, is insufficient to prove beyond a reasonable doubt that the defendant's BAC was above the legal maximum while driving. 529 Pa. 92, 601 A.2d 1229 (1992). While the Jarman Court did hold that the evidence in that case, a one hour lapse and a BAC of 0.114 %, was insufficient and "left the jury free to engage in unbridled speculation as to whether appellant's blood alcohol level was at or above 0.10% at the critical time," the Court also focused on information of the Commonwealth's expert witness testimony which allowed for the possibility that the defendant's blood alcohol level was still rising when the test was performed and, therefore was below .10% at the time he was driving. See id. at 97, 601 A.2d at 1231. In the case at bar, we have expert testimony that the defendant's blood alcohol content would have been greater than. 10% when he was actual physical control of the truck. As such, we consider not only the BAC results as did the trial court in Jarman, but the defendant's own statements, the observations of the arresting officers and the testimony of Dr. Passananti to place the defendant in actual physical control of the vehicle at a time when his blood alcohol level was above the legal limit. This evidence, taken together, clearly supports a conviction for driving under the influence. $,¢ Com. v, Stith, 434 Pa. Super. 501,512-13,644 A.2d 193, 198 (1994). We now turn to whether Sergeant Brown exceeded his scope of authority under the Municipal Police Jurisdictional Act by detaining the defendant. Because this issue has not been 96-1343 CRIMINAL raised previously, we believe it has not been preserved for appeal. Assuming, arguendo, this issue was preserved for appeal, we proceed to discuss it. The statutory limitations on a municipal police officer acting outside of his jurisdiction are found in the Municipal Police Jurisdiction Act. 42 Pa.C.S.A. Section 8953. The defendant argues that Sergeant Brown's actions do not fall under any of the enumerated exceptions. We agree. Section 8953 provides: Statewide municipal police jurisdiction (a) General rule.--Any duly employed municipal police officer who is within this commonwealth, but beyond thc 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 .... 42 Pa.C.S.A. Section 8953. Section 8953(a) further states six situations whereby a municipal police officer can go outside of his jurisdiction in performance of his official functions, such as: (1) where the officer is acting pursuant to a court order; (2) where the officer is in hot pursuit; (3) where the officer has been requested to assist other law enforcement officers; (4) where the officer has gained the consent of the department that services the outside jurisdiction; (5) where the officer is on "official business" and views an offense; and (6) where the officer views a felony or has probable cause to believe a felony has been committed and makes a reasonable effort to identify himself as a police officer. 42 Pa.C.S.A. 8953(a)(1)-(6). 4 96-1343 CRIMINAL While the Municipal Police Jurisdiction Act is not among those statutes that are to be strictly construed, even a liberal reading of the above exceptions leads us to the conclusion that Sergeant Brown's actions in this case do not fall under any one of the above exceptions. See Com. v. McHugh, 413 Pa. Super. 572, 575-76, 605 A.2d 1265, 1267 (1992). Sergeant Brown was outside of his jurisdiction for personal reasons and certainly was not on "official business." Not until he had pulled into the parking lot of the store did he observe the suspicious behavior of the defendant. He had no prior consent nor had he been requested to take action by the local authorities. Furthermore, he did not view a felony or have probable cause to believe that a felony had taken place. The Commonwealth fails to make mention of this Act and instead argues that Sergeant Brown was acting as a private citizen. We cannot conclude that when an off-duty police officer identifies himself as a police officer and then asks the defendant for the keys to his track that he was not acting in his official capacity. The Pennsylvania Superior Court has held "that when an officer acts under the color of state law in effectuating an arrest, the officer is acting in his official capacity and not as a private citizen." Com. v. Kiner, __ Pa. Super. ,697 A.2d 262, 266 n.2 (1997). In Kiner, the Court held that because the off-duty officer identified himself as a police officer, displayed his badge and firearm, and used his handcuffs to restrain the defendant the officer was acting under his authority as a police officer. See i.i.i~. The Commonwealth insists that because Sergeant Brown did none of the above, with the exception of identifying himself as a police officer, his conduct was permissible as that of any private 96-1343 CRIMINAL citizen would have been. We recognize that the superior court was examining this "private citizen" concept in regards to an arrest, but feel that the court's analysis applies equally when the off-duty officer is performing an investigative detention. Sergeant Brown's identification as a police officer preceded his request for the defendant's keys. This suggests Sergeant Brown thought it necessary to first inform the defendant of his authority in order to gain full compliance. The badge, gun and handcuffs were not necessary, but their absence does not detract from the fact that he first established himself as a police officer. This conclusion leads us to now ask if suppression is the appropriate remedy in this case. In Com.v, Saul, the Superior Court held that suppression was not the appropriate remedy where a municipal police detective conducted an investigation outside his municipality's geographical bounds. 346 Pa. Super. 155, 162, 499 A.2d 358, 361 (1985). The Saul Court quotes language from a Pennsylvania Supreme Court case, Com. v. Mason, 507 Pa. 396, 403,490 A.2d 421,424 (1985), which cites United States v, Johnson, 660 F.2d 749, 753 (9th Cir. 1981), cert. denied 455 U.S. 912 (1982), for the principle that: Only a "fundamental" violation of [a rule of criminal procedure] requires automatic suppression, and a violation is "fundamental" only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards. U.S.v. Vasser, 648 F.2d 507, 510 (9th Cir. 1980). Where the alleged violation [ ] is not "fundamental" suppression is required only where: (1) there was "prejudice" in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or 6 96-1343 CRIMINAL (2) there is evidence of intentional and deliberate disregard of a provision of the Rule. (citations omitted). Id._~. The Mason Court further stated that "[i]t is only where the violation also implicates fundamental constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy." 507 Pa. at 406-07, 490 A.2d at 426. As was held in Saul, suppression of the evidence "would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired." 346 Pa. Super. at 162, 499 A.2d at 361 (quoting U.S.v. Searp, 586 F.2d 1117, 1123 (6th Cir. 1978), cert. denied 440 U.S. 921 (1979). Finally, the defendant contends that because he did not receive Miranda warnings while under custodial detention, his incriminating statements made to the police should be suppressed. Once again, we question whether this issue was preserved for appeal, but we will discuss it nonetheless. Because we find that the defendant was not under arrest at the time he made the incriminating statements, this evidence will not be suppressed. We must first determine what type of interaction occurred between the police and the defendant. The Fourth Amendment delineates these encounters into three categories: The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The second, an "investigative detention" must be supported by 7 96-1343 CRIMINAL a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. See Berkemeer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Finally, an arrest or "custodial detention" must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Commonwealth v. Rodriquez, 532 Pa. 62, 614 A.2d 1378 (1992). Com. v. Allen, 452 Pa. Super. 200, 207,681 A.2d 778, 782 (1996) (citing 3~Ii~2,_F~B, 541 Pa. 285,293-94, 662 A.2d 1043, 104748 (1995)). In determining whether a detention is for investigative or custodial purposes, several factors are to be considered. Generally, these factors include: the basis for the detention (the crime suspected and the grounds for suspicion); the duration for the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat or use of force; and the investigative methods used to confu'm or dispel suspicions. Com. v. Gomlller, 445 Pa. Super. 571,581,665 A.2d 1269, 1274 (1995), alloc, denied, 546 Pa. 676, 686 A.2d 1308 (1996) (quoting Commonwealth v. Douglass, 372 Pa. Super. 227, 539 A.2d 412, 421 (1988) (Kelly, J., plurality opinion)). Furthermore, we are concerned with the reasonable impression of the person subjected to the seizure and not the police officers as to whether an arrest has been made. Com. v. Carter, 537 Pa. 233,246, 643 A.2d 61, 67 (1994). 96-1343 CRIMINAL We believe that Com.v. Gommer is dispositive as to whether Sergeant Brown's detention was custodial or investigative. The facts in Gommer are virtually analogous to the facts in this case. In Gommer, the off-duty state police officer observed the defendant driving in a reckless manner and signaled him to stop in a parking lot at which point the officer identified herself as a police officer, requested the defendant await the arrival of other troopers, informed the defendant that he was suspected of driving under the influence of alcohol and then took possession of the defendant's keys. 445 Pa. Super. at 581-82, 665 A.2d at 1274. The Court held that the brevity of the detention and because the officer did not interrogate the defendant or threaten or use force, the detention of the suspect did not rise to the level of custodial detention. See Id. The facts before us are so similar to those in Gommer that we can only conclude that Sergeant Brown's actions did not rise to the level of an arrest. The only relevant distinction is the level of reasonable suspicion involved. In o~, the officer observed the defendant driving in an erratic and dangerous manner and she, therefore, had reasonable suspicion to believe the defendant was under the influence of alcohol. Id._.~. In this case, Sergeant Brown observed the defendant, as the sole occupant of the truck, stumble out of the driver's seat and proceed to vomit in the bushes of a convenience store parking lot. We believe this investigative detention was reasonable as Sergeant Brown can point to these facts in conjunction with their reasonable inferences to show that the initial stop was warranted. Surely, an experienced officer acts reasonably in detaining a citizen when he sees that person 96-1343 CRIMINAL manifest signs that are indicative of drunken behavior after getting out of the driver's seat of a vehicle. We now turn to whether the level of detention changed once the three on-duty officers arrived. While we recognize that we are to be concerned with the reasonable impressions of the suspect and not the officers, we also note that this factor in itself is not controlling. Rather, we must consider each of the factors mentioned above. As such, we conclude that because the detention took place in a store parking lot during operating hours, lasted only long enough for the officers to obtain the information required, the defendant was not transported, there was no show, threat or use of force aside from the presence of the uniformed officers and the common methods used to question someone suspected of driving while under the influence of alcohol, the detention remained investigatory in nature. The Pennsylvania Superior Court has stated, "[n]ot every encounter between a citizen and the police is so intrusive as to trigger the protections provided by the Fourth Amendment to the United States Constitution." Com. . V_v__~Y_a_~qu~, 703 A.2d 25, 30 (1997) (citations omitted) (citing In the Interest of Jermaine, 399 Pa. Super. 503,508-09, 582 A.2d 1058, 1060 (1990), alloc, denied, 530 Pa. 643,607 A.2d 412, 417 (1992). March Z3fi, 1998 A. Hess, J. 10 96~ 1343 CRIMINAL William I. Gabig, Esquire Sr. Assistant District Attorney Ron Turo, Esquire Assistant Public Defender :rim 11