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HomeMy WebLinkAbout98-0158 CriminalCOMMONWEALTH Vo GREGG THOMAS IRWIN ETN: E8630436 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : No. 98-0158 CRIMINAL TERM : CHARGES: (1) D.U.I. : (2) D.U.S. (D.U.I. Related) IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., December 18, 1998. 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 (d.u.i. related). Among the bases for the appeal are the following, as expressed in Defendant's statement of matters complained of on appeal: I. Motion in Arrest of Judgment A. The Trial Court erred in denying the Defendant's Omnibus Pre-Trial Motion to suppress evidence on the issue of the Municipal Police Jurisdiction Act. B. The Trial Court erred by denying Defendant's Omnibus Pre-Trial Motion regarding lack of probable cause to stop. C. The Trial Court erred by denying Defendant's Omnibus Pre-Trial Motion regarding lack of probable cause to arrest. II. Motion for a New Trial A. The Commonwealth failed to establish probable cause to stop the Defendant. C. The charge of Driving Under Suspension should be dismissed as the evidence was obtained from the unlawful stop and arrest of Defendant.m m Defendant's Concise Statement of Matters Complained of on Appeal, filed November 13, 1998. Notwithstanding the references in the statement to a "motion in arrest Defendant's nonjury trial was conducted by the Honorable Edgar B. Bayley of this court on July 30, 1998, and Defendant was sentenced on August 18, 1998. The pretrial ruling on Defendant's omnibus pretrial motion for relief was made by the writer of this opinion on May 4, 1998. This opinion in support of that ruling is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS Sometime before midnight on Wednesday, August 27, 1997, Patrolman Darryl Goodhart, a seven-year veteran of the Mount Holly Springs Borough Police Department in Cumberland County, Pennsylvania, observed a 1979 Chevrolet pickup truck in the parking lot of a bar in the borough.2 Several hours later, at 2:25 a.m. on Thursday, August 28, 1998, Officer Goodhart saw the vehicle again.3 At this time, Officer Goodhart, who was in uniform and in a marked police car, was proceeding east in the borough on Pine Road toward its intersection with Baltimore Avenue (State Route 34).4 The truck was traveling south on Baltimore Avenue.s As the light was changing, the driver of the truck gunned the engine and passed through the intersection in front of the officer.6 The truck appeared to cross the center line of the roadway, began noticeably weaving, and, as the officer followed, accelerated to a speed of between 55 and of judgment" and a "motion for a new trial," a post-sentence motion was not filed in this court and it is assumed that these references are to relief requested of the appellate court. 2 N.T. 6-7, 33, 57, 66. 3 N.T. 7-8, 33, 57. 4 N.T. 8, 62-63. 5N.T. 8. 6 N.T. 8, 43. 2 60 miles per hour in a 35-mile-per-hour zone.7 Defendant was the driver of the truck.8 The truck rapidly covered the 1.4-mile distance on the winding avenue to the borough line;° after the initial observation of Defendant, Officer Goodhart was not able to draw clOser than two-tenths of a mile to the accelerating vehicle in the course of that distance, in spite of attaining a speed of almost 70 miles an hour in his patrol car.~° Because of the distance between the vehicles and the configuration of the road approaching the borough line, the activation of emergency lights at that point would not have communicated a direction to Defendant to stop.~ Beyond the borough line, Defendant's progress was slowed by the presence of another vehicle ahead, and the officer narrowed the gap between his car and Defendant's truck to a distance where Defendant's driving could be more closely observed? Defendant drew within one-and-a-half car lengths of the vehicle ahead, continued to weave within his lane, deviated from the lane across the center line twice, and deviated from the lane across the fog line four times? Within about 1500 yards of the borough line, Officer Goodhart activated his emergency lights and siren, intending that Defendant would pull over in a safe area about 450 7 N.T. 8-10, 19-20, 28, 34-35, 39, 46, 55, 64. 8N.T. 17. 9 N.T. 46, 53. ~0 N.T. 9-10, 42. ~ N.T. 45, 59-61. The speedometer in Officer Goodhart's patrol car had not been calibrated so as to permit him to clock the exact speed of Defendant's truck for purposes of issuance of a speeding citation. N.T. 40. ~2 N.T. 10. ~3 Id. 3 yards ahead where field sobriety tests could be administered? Defendant, however, failed to stop in that area? The stop was ultimately effected 1.2 miles beyond the borough boundary line? Defendant refused to identify himself and failed to produce a driver's license, registration card or insurance information,q? He evidenced a strong odor of an alcoholic beverage on his breath, glassy, bloodshot eyes, slurred speech, a staggering gait, a swaying motion when standing, and a need to rely a vehicle for support when walking? He refused to follow instructions for the horizontal gaze nystagmus test? Officer Goodhart placed Defendant under arrest; the arrest was for Defendant's act of driving under the influence while in the borough.2° Defendant physically opposed the officer's efforts to put him in the patrol car and, once in, used his foot to prevent the door from being closed.2~ He subsequently refused to consent to a chemical test to determine the alcohol content of his blood? On April 7, 1998, Defendant filed a four-part omnibus pretrial motion for relief. The motion was comprised of a "motion to dismiss--lack of jurisdiction to stop," "motion to dismiss--lack of reasonable suspicion to stop," "motion to suppress evidence [--] lack of 14 N.T. 10-11, 64. ~s N.T. 11. 16 N.T. 48. ~? N.T. 12, 17. ~8 N.T. 12-13, 16-17. ~9 N.T. 14-15. 20 N.T. 15, 61-62. 2~ N.T. 16. 22 N.T. 20. 4 probable cause," and "motion to suppress evidence--illegally obtained statements." The "motion to dismiss--lack of jurisdiction to stop" was premised upon a violation of the Municipal Police Jurisdiction Act. The "motion to dismiss--lack of reasonable suspicion to stop" was predicated upon an insufficient basis under the federal and Pennsylvania constitutions for an investigatory stop. The "motion to suppress evidence [--] lack of probable cause" was based upon a lack of probable cause for Defendant's arrest following the stop. And the "motion to suppress evidence--illegally obtained statements" was premised upon an initial absence of Miranda warnings. A hearing on Defendant's omnibus pretrial motion was held on March 23, 1998. At the hearing, Defendant's counsel withdrew the portion of the motion premised upon an initial absence of Miranda warnings? Subsequent to the hearing, the court entered the following order denying Defendant's motion: AND NOW, this 4th day of May, 1998, after careful consideration of Defendant's Omnibus Pretrial Motion, and following a hearing held on April 23, 1998, the motion is DENIED. Municipal Police Jurisdiction Act. With respect to Defendant's "motion to dismiss-- lack of jurisdiction to stop," as to which an arrest of judgment is sought on appeal, it may be noted that the relief requested in the pretrial motion and on the appeal is not appropriate. In general, the remedy for an unlawful apprehension is not a dismissal of the prosecution but rather a suppression of resultant evidence;:n and an arrest of judgment is not to be granted 23 N.T. 6. 24 See Commonwealth v. Carter, 537 Pa. 233,643 A.2d 61 (1994), cert. denied, 514 U.S. 1005, 115 S. Ct. 1317, 131 L. Ed. 2d 198 (1995); Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v. Barndt, No. 94-0247 Criminal Term (Cumberland Co., July 12, 1994). 5 upon a diminished record? If the pretrial motion to dismiss based upon the Municipal Police Jurisdiction Act is construed as a request for suppression of evidence, and the relief requested on appeal is deemed to be a new trial, this court's ruling is nevertheless believed to be supportable under the following analysis. The Municipal Police Jurisdiction Act provides, in pertinent part, as follows: Any duly employed municipal police officer who is within this Commonwelath, 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 ... where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.26 This statute "does not fall within the class of statutes which are to be strictly construed ... and therefore, it must be liberally construed to effect its objects and to promote justice." Commonwealth v. Fetsick, 392 Pa. Super. 264, 267, 572 A.2d 793,794 (1990). "The general purpose of the statute is to restrict the jurisdiction of police to their own municipalities, on the one hand, while allowing certain practical and policy exceptions to the general rule on the other hand." Commonwealth v. Merchant, 385 Pa. Super. 264, 268, 560 A.2d 795,796- 97 (1989). "Hot pursuit," in this context, includes "both classic 'hot pursuit' and 'fresh' or 'continuous' pursuit." Commonwealth v. Magwood, 503 Pa. 169, 177, 469 A.2d 115, 119 (1983) (interpreting prior statute on "intrastate hot pursuit"). In some circumstances, an 25 See Commonwealth v. Savage, 695 A.2d 820 (Pa. Super. 1997). 26 Act of June 15, 1982, P.L. 512, § 4, 42 Pa. C.S. § 8953(a)(2). officer's pursuit for an offense committed within his or her primary jurisdiction may occur entirely outside of that jurisdiction. Commonwealth v. Fetsick, 392 Pa. Super. 264, 572 A.2d 793 (1990) (observation of offense within primary jurisdiction by officer located outside of jurisdiction, and subsequent pursuit). The Commonwealth Court has upheld the legality of a stop outside of an officer's primary jurisdiction in the following circumstances: [Officer] Ressler observed Licensee's erratic driving within Marietta Borough, his own jurisdiction. He followed Licensee who crossed the township line into East Donegal Township and exhibited more erratic driving. Licensee was stopped in East Donegal Township and an arrest and request for chemical testing followed. Ressler had the authority to follow and arrest Licensee outside his jurisdiction based on his observations of an offense inside his jurisdiction, under 42 Pa. C.S. § 8952(a)(2). Commonwealth of Pennsylvania, Department of Transportation v. Weichey, 143 Pa. Commw. 19, 24, 598 A.2d 575, 578 (1991). In the present case, Officer Goodhart had seen Defendant's vehicle at a bar several hours before his second observation of the vehicle at 2:25 a.m. On the latter occasion, the vehicle was "gunned" through an intersection, appeared to be weaving, and accelerated to a speed of between 55 and 60 miles per hour in a 35-mile-per-hour zone prior to exiting the borough at a point where road conditions precluded any effectual activation of lights by the officer. These observations were sufficient, in the court's view, to justify a stop of Defendant within the officer's primary jurisdiction.27 27 In driving under the influence cases, erratic or unsafe driving had been a common basis upon which lawful traffic stops have been predicated. See, e.g., Commonwealth v. Gomer, 445 Pa. Super. 571,665 A.2d 1269 (1995); Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v. Lymph, 372 Pa. Super. 97, 538 A.2d 1368 (1988); Commonwealth v. Lawrentz, 453 Pa. Super. 118, 683 A.2d 303 (1986), appeal denied, 548 Pa. 645,695 A.2d 784 (1987). Obviously, the matter is one of degree; not every minor variance from one's lane corridor would justify a traffic stop. See, e.g., Commonwealth v. Whitmyer, 542, Pa. 545, 668 A.2d 1113 (1995). 7 Having had a lawful basis to stop Defendant within his primary jurisdiction, Officer Goodhart's failure to activate his lights at the borough line under the circumstances described and his pursuit 1400 yards into an adjoining municipality, where Defendant's proximity confirmed beyond all doubt the validity of the officer's earlier perception of erratic and unsafe driving, did not, in the court's view, deprive the pursuit of its fresh and continuous characteristics. For this reason, it is believed that the officer's conduct did not represent a violation of the Municipal Police Jurisdiction Act. Even if it were to be assumed that Officer Goodhart exceeded his authority under the Municipal Police Jurisdiction Act, suppression would not have been appropriate in these circumstances. The Pennsylvania Superior Court has noted that suppression can be an inappropriate remedy for an unauthorized arrest made by a Pennsylvania municipal police officer outside his or her primary jurisdiction. Commonealth v. Saul, 346 Pa. Super. 155, 161,499 A.2d 358, 361 (1985). Stated more precisely, if the officer would have had the power to perform the duty that he or she performed had the officer been within his or her primary jurisdiction where the offense occurred, and if no constitutional rights were violated,28 suppression may be viewed as too harsh a remedy for the impropriety. See Commonwealth v. Bienstock, 449 Pa. Super. 299, 305 n.8, 673 A.2d 952, 955 n.8 (1996); cf. Commonwealth v. McCandless, 538 Pa. 286, 648 A.2d 309 (1994). Motion to dismiss--lack of reasonable suspicion to stop. With respect to Defendant's "motion to dismiss--lack of reasonable suspicion to stop," the general unavailability of a dismissal of charges as a remedy for an unlawful apprehension, and the inappropriateness of a discharge upon a diminished record, have been previously mentioned. On the latter point, In the present case, factors in addition to Defendant's display of erratic and unsafe driving included the occurrence of these events shortly at~er tavern closing hours and the officer's observation of the vehicle in question at a bar several hours earlier. 28 The absence of constitutional violations is discussed in the succeeding sections of this opinion. 8 however, Defendant, in his statement of matters complained of on appeal, seems to seek alternative relief in the form of a new trial in connection with the stop. If the pretrial motion to dismiss based upon the absence of a reasonable suspicion to stop is construed as a request for suppression of evidence, Defendant's position nevertheless appears to be without merit. Section 6308(b) of the Vehicle Code provides, in pertinent part, as follows: Whenever a police officer ... has articulable and reasonable grounds to suspect a violation of [the Vehicle Code], 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 other information as the officer may reasonably believe to be necessary to enforce the provisions of [the Vehicle Code].''29 The standard to be applied in considering the legality of a traffic stop for a suspected Vehicle Code violation (such as driving under the influence) is one of "articulable and reasonable grounds to suspect" such a violation. Commonwealth v. Hamilton, 543 Pa. 612, 618, 673 A.2d 915,918 (1996); Commonwealth v. Whitmyer, 542 Pa. 545, 553,668 A.2d 1113, 1116 (1995); Commonwealth v. Farrell, 448 Pa. Super. 492, 495,672 A.2d 324, 326 (1996). In driving under the influence cases, erratic driving has been a common basis upon which lawful traffic stops have been predicated. See, e.g., Commonwealth v. Lymph, 372 Pa. Super. 97, 100, 538 A.2d 1368, 1370 (1988). In the present case, at the time the stop was effected by Officer Goodhart, Defendant had been observed gunning his vehicle through an intersection, weaving on the road, accelerating to a speed of 20 to 25 miles per hour over the speed limit, crossing the center line twice, crossing the fog line four times, and following a vehicle ahead too closely. These occurrences, in the court's view, represented articulable and reasonable grounds to suspect 29 Act of June 17, 1976, P.L. 162, § 1, as amended, 75 Pa. C.S. § 6308(b). 9 that Defendant was driving under the influence. Motion to suppress evidence--lack of probable cause. With respect to Defendant's "motion to suppress evidence--lack of probable cause," the inappropriateness of a discharge upon a diminished record has been previously mentioned. If the relief requested on this basis is deemed to be a new trial, Defendant's position nevertheless appears to be without merit. Probable cause is "those facts and circumstances available at the time of the arrest which would justify a reasonable prudent man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator." Commonwealth v. Harper, 485 Pa. 572, 583,403 A.2d 536, 542 (1979). Common indicia of driving under the influence include erratic and unsafe driving,3° the odor of an alcholic beverage on one's breath,3~ a staggering gait, slurred speech,32 and glassy, bloodshot eyes? Defendant displayed all of these indicia prior to his arrest, and it is believed that they constituted facts and circumstances sufficient to justify a reasonable belief that a crime had been committed in the form of driving under the influence and that Defendant was the probable perpetrator of the crime. For the foregoing reasons, it is believed that the court's denial of Defendant's omnibus pretrial motion for relief was proper. William I. Gabig, Esq. Assistant District Attorney Patrick F. Lauer, Jr., Esq. Attorney for Defendant 30 See Commonwealth v. Carlson, 705 A.2d 468 (Pa. Super. Ct. 1998); Commonwealth v. Zelinski, 392 Pa. Super. 489, 573 A.2d 569 (1990). 3~ See Commonwealth v. Lutz, 443 Pa. Super. 262, 661 A.2d 405 (1985). 32 See Commonwealth v. Verticelli,. 451 Pa. Super. 22, 678 A.2d 379 (1996). 33 See Commonwealth v. Nicotra, 425 Pa. Super. 600, 625 A.2d 1259 (1993). 10