HomeMy WebLinkAbout01-2654 CriminalCOMMONWEALTH
VS.
DAVID J. ARMOUR
OTN: L090553-1
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-2654 CRIMINAL
IN RE: OPINION PURSUANT TO RULE 1925
In this case, the defendant was found guilty of a count of driving under the influence and
driving under suspension at a nonjury trial held before the President Judge, the Honorable
George E. Hoffer. He was sentenced for driving under suspension and for driving under the
influence on October 22, 2002. He remained on bond pending appeal. In a concise statement of
matters complained of on appeal, the defendant preserves one issue; namely, that the
undersigned erred in denying the defendant's earlier suppression motion and, specifically, in
finding that the affiant, Patrolman Jeffrey O'Donnell, had probable cause to stop the defendant's
vehicle.
The events leading up to the stop of the defendant's vehicle occurred on Hummel Avenue
in Lemoyne on May 26, 2001. On that date, at approximately 11:00 p.m., one Carol Sawchuck
was on her porch at the apartment building at 237-B Hummel Avenue. She heard the screeching
of tires and the sound of a car moving very fast. She called the police and told them that there
was a "red car racing down the street." N.T. 4. Officer O'Donnell responded to the telephone
complaint and he proceeded to a Uni-Mart across the street from 237-B Hummel Avenue. There
he observed a red Honda Prelude pulling into the north side of the Uni-Mart. The defendant, the
lone occupant of the vehicle, got out and went inside the Uni-Mart. He left the vehicle running.
When the defendant, Mr. Armour, returned to his vehicle, he pulled out onto South Third Street.
01-2654 CRIMINAL
At that point, Officer O'Donnell followed him and shortly pulled him over using the emergency
lights of the police vehicle. IN the meantime, Ms. Sawchuck was observing Officer O'Donnell as
he approached the vehicle at the Uni-Mart. The red Honda Prelude was the same vehicle she had
seen "racing."
At the suppression hearing, the following exchange occurred between Patrolman
O'Donnell and the Commonwealth attorney:
Q Now, what was the purpose that you pulled this
particular vehicle over?
A The reason was ! was checking the area for the
report from Ms. Sawchuck as well as a violation of
3701 of the Pennsylvania Vehicle Code, Leaving
an Unattended Vehicle Running.
Q So you actually witnessed the summary offense
of 3701, is that correct?
A That's correct.
N.T., pp. 12-13.
A number of recent pronouncements of our appellate courts, which we will not here
reprise, raise questions about what observations do and do not warrant the stop of a motor
vehicle. Established, however, is the principle that a police officer may stop a vehicle when he is
able to articulate specific facts possessed by him, at the time of the questioned stop, which
provide probable cause to believe that the vehicle or the driver is in violation of some provision
of the Motor Vehicle Code. Com. v. Whitmyer, 668 A.2d 1113 (Pa. 1995). Moreover, there is
no requirement that an actual violation of the Motor Vehicle Code be ultimately established to
validate a vehicle stop. See Com. v. Wituszvnski, 750 A.2d 349 (Pa. Super. 2000).
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01-2654 CRIMINAL
The provision of the Vehicle Code, purportedly violated in this case, can be found at 75
Pa.C.S.A. 3701. It reads:
(a) General rule - - No person driving or in charge
of a motor vehicle shall permit the vehicle to stand
unattended without placing the gearshift lever in a
position which under the circumstances impedes
the movement of the vehicle, stopping the engine,
locking the ignition in vehicles so equipped,
removing the key from the ignition and, when
standing upon any grade, turning the front wheels
to the curb or side of the highway and effectively
setting the brake.
The penalty for the violation of this section is a fine of $5.00.
In reading the cases which have construed the statute, it is clear that this section is
normally applied in assessing liability under circumstances in which vehicles were not properly
secured and, while unattended, rolled away thereby causing some sort of damage. In fact, in
seventeen years on the bench, we have never seen a case in which a person has been prosecuted
for allowing their car to idle while they entered a convenience store. It is reasonable to conclude
that Officer O'Donnell would not have stopped the car for a violation of Section 3701 had the
vehicle not been a red car similar to and in the vicinity of the one reported to have been seen
racing. Nonetheless, we believe the question is whether or not the officer can articulate a
violation of the Vehicle Code not whether the defendant would ultimately have been found
guilty. Accordingly, we continue to be satisfied that our refusal to suppress evidence of the
traffic stop in this case was proper.
January 2, 2003
Kevin A. Hess, J.
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01-2654 CRIMINAL
Jaime Keating, Esquire
Chief Deputy District Attorney
Arla Waller, Esquire
Assistant Public Defender
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