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HomeMy WebLinkAbout02-71, 02-767 CriminalCOMMONWEALTH GREGG THOMAS IRWIN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-0767 CRIMINAL TERM 02-0071 CRIMINAL TERM CHARGE: D.U.I. IN RE: 1925 OPINION HOFFER, P.J.: The defendant appeals from rulings made at the pre-trial hearing on the following matters: 1 .) The failure of the court to suppress the stop for lack of probable cause; 2.) The finding that the officer's probable cause did not become stale; 3.) The court's examination of a witness; 4.) The court's failure to suppress all of the defendant's roadside and booking center statements as obtained without benefit of Miranda warnings or as fruits of the aforementioned unconstitutional stop;1 5.) The failure of the court to dismiss the action against the defendant for a delay in filing charges which the defendant alleges amounts to a due process violation, and the failure of the court to dismiss for violation of the defendant's right to a speedy trial; and ~ Immediately prior to trial the defendant filed a supplemental motion to suppress his statements made at the booking center. The motion was based upon an issue not previously addressed by us, i.e., the defendant's assertion of his right to counsel. The trial judge granted the motion and suppressed the audio portion of the booking center tape. Therefore, no incriminating statements made at the booking center were heard by the jury. 6.) The failure Information. of the Commonwealth to include a "to wit" clause in the DISCUSSION The failure of the Court to suppress the stop for lack of probable cause 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. 72 Pa.C.S. § 6308(b). In the present case, Trooper Mays testified that he observed the defendant's vehicle traveling from one side of the road to the other, over the course of approximately one and a half miles, on both Fairfield Street2 and on Forge Road3. In addition, the officer observed the defendant drive over the corner of a raised traffic strip that separates the north and south-bound lanes of traffic while attempting to make a left turn. These observations, coupled with the fact that the officer's initial observation of the defendant's vehicle occurred while it was exiting the parking lot of a bar, gave the officer articulable and reasonable grounds to stop the defendant. The officer's observations of the defendant go beyond mere "erratic" or "bad" driving, which are insufficient assertions to create probable cause. See, e.g., Commonwealth v. Gleason, 567 Pa. 111,785 A.2d 983 (Pa. 2001); Commonwealth v. Battaqlia, 2002 PA Super. : Fairfield Street, South Middleton Township, Cumberland County is an unlined road. ~ Forge Road is lined with a double yellow line and a white fog line in the area where Trooper Mays observed the defendant. 209, 802 A.2d 652 (Pa. Super. Ct. 2002). It is well settled in Pennsylvania that the correct standard for vehicular stops is "articulable and reasonable grounds to suspect" a violation of the Vehicle Code. Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995). The "probable cause" and "articulable and reasonable grounds" standards are one in the same. Commonwealth v. Gleason, 567 Pa. 111,121, 785 A.2d 983, 988. Because Trooper Mays articulated more specific and reasonable grounds than mere "erratic" or "bad" driving for his belief that the defendant was violating the Vehicle Code, the stop was lawful. The finding that the officer's probable cause did not become stale Defense counsel argues that the officer's probable cause to stop became stale during the mile and a half that the officer followed the defendant. Cases that have found probable cause to have become stale generally involve days, weeks, even months of elapsed time between the initial achievement of probable cause and the execution of the warrant. See, e.g., Commonwealth v. Eazer, 455 Pa. 320, 325, 312 A.2d 398,400 (1973) (two month-old criminal act is too remote in time and certainty to provide the requisite existing probable cause necessary for the issuance of a search warrant). Courts have been reluctant, however, to set a hard and fast rule as to what constitutes staleness; such a determination must be made on a case by case basis. Commonwealth v. Stamps, 493 Pa. 530, 536; 427 A.2d 141, 144 (1981), citing United States v. Harris, 403 U.S. 573, 579 n.2, 91 S. Ct. 2075 (1971). Trooper Mays continually observed the defendant crossing in and out of his lane of traffic. He continuously observed this along two different roads, one road bearing lines and the other road unmarked. intervening actions or circumstances during the Because there were no officer's observation, and because no significant time elapsed between the probable cause and the stop, the officer's probable cause did not become stale. The Court's examination of a witness Pennsylvania Rule of Evidence 614 provides, "[w]here the interest of justice so requires, the court may interrogate witnesses, whether called by itself or by a party." Pa.R.E. 614. A trial judge has a right and, at times, a duty, to interrogate witnesses. Questioning from the bench, however, should not show bias or feeling, nor be unduly protracted. Commonwealth v. Seabrook, 475 Pa. 38, 45, 379 A.2d 564, 567 (1977); Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81, 83 (1948). The purpose of limiting judicial interrogation of witnesses is to prevent the judge from exposing his opinion on the proper disposition of the case. Commonwealth v. Myma, 278 Pa. 505, 507-08, 123 A.2d 486, 487 (1924), rev.'d on other grounds by Commonwealth ex tel. Cummins v. Price, 421 Pa. 396, 218 A.2d 758 (1966). Because this was a non-jury hearing and because the court's questioning of the witness caused no prejudice to either party, it was a permissible exercise of judicial authority. While a trial judge should avoid extended examination of witnesses, and should instead permit counsel to bring out the evidence in a case, the judge may develop a point neglected by counsel where it is required in the interest of obtaining a fair result. Myma. In the present case, the court's interrogation was aimed at clarifying an indefinite point which neither side had precisely developed on direct, cross, or redirect examination. That is, the court merely attempted to elicit more specific information with regard to the officer's observations of "bad driving." The colloquy among the court, defense counsel, and the officer was as follows: THE COURT: Mr. Rominger [Defense Counsel], are you going to be arguing to me lack of probable cause to stop? MR. ROMINGER: I believe I have asserted that in my motion, yes, Your Honor. THE COURT: You did. And all I have heard so far is, quote, bad driving, unquote, without knowing what it is. Sir [to the witness], would you tell us what you saw, what the driving was as far as you saw, without characterizing it as good or bad or anything else?4 See Transcript (In Re: Omnibus Motion) of July 3, 2002 at 11. This was the only question that the court directed at any witness during the testimony. The witness then gave a complete and specific account of what he observed, including street names, the speed and nature of the defendant's driving, and the length of the witnesses observation. There was no jury to be prejudiced, and the judge's questions showed no bias on his own part. These questions, especially where no jury was present, do not represent improper involvement of the judge as an advocate in the case. See, e.g. Commonwealth v. Miller, 234 Pa. Super. 146, 154, 339 A.2d 573, 578 (Pa. Super. 1975). The failure to suppress defendant's roadside and booking center statements The defendant contends that his statements to the officer at the scene of the stop must be suppressed because they were made without the benefit of Miranda warnings.5 In order for Miranda to apply, the defendant must be in custody. An ordinary traffic stop does not require Miranda warnings. The defendant argues that according to Commonwealth v. Turner, 201 Pa. Super. 79, 772 A.2d 970 (Pa. Super. 2001), he was in custody from the time the officer directed him to exit the vehicle. Turner is factually distinguishable from the present case as the defendant in Turner was placed in a police cruiser and questioned therein. Here, the Miranda v. Arizona defendant was not in the police cruiser and was not yet under custodial arrest when the statements in question were made.6 The Turner court stated' The Commonwealth asserts that a suspect is not in custody when a police officer makes a traffic stop and asks the driver basic investigative questions. However, such encounters are limited to "ordinary" traffic stops. See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138 82 L.Ed.2d 317 (1984) (likening an ordinary traffic stop to an investigative detention). See also Pennsylvania v. Bruder, 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed. 172 (1988) (concluding that an ordinary traffic stop during which a police officer asks a driver a modest number of questions and requests him to perform a simple balancing test at a location visible to passing motorists did not involve "custody" for purposes of Miranda rule.) Turner at 975 (emphasis added). The officer asked the defendant routine questions and asked him to perform standard roadside tests outside of both vehicles at a location visible to passing motorists.7 The Bruder case referred to by the Turner court is directly on point. Therefore, the roadside statements made before the defendant was put into the police cruiser were made while the stop was still an ordinary traffic stop, and did not require Miranda warnings. The failure of the Court to dismiss the action against the defendant for a due process violation and for violation of the defendant's right to a speedy trial 6 A review of the transcript of the trial makes it clear that no statements of the defendant after he was taken into custody were admitted into evidence. 7 Officer Mays informed the defendant why he was stopping him, asked to see his driver's license and registration card, asked him where he was coming from, asked him to exit the vehicle, conducted a "walk-and-turn" test. A prosecution for a DUI offense must be commenced within two years after it is committed. 42 Pa.C.S. § 5552. In the present case, the alleged DUI offense occurred on February 10, 2000 and the Commonwealth filed the charges on February 8, 2002. The charges were filed within the statutorily proscribed two- year period and therefore no violation has occurred. The Commonwealth did not sit idle on this case for two years and then capriciously file charges two days before the statute of limitations ran. This case was originally filed promptly and a preliminary hearing was held on June 27, 2000, less than 5 months after the defendant's arrest. The charges were dismissed by the district justice on that date and the Commonwealth requested in August of 2001 that the court approve re-filing of this matter which it did on August 24, 2001. The court later vacated that re-filing order on February 6, 2002 and again allowed the Commonwealth to re-file on February 8, 2002. It is true that the charges against the defendant were filed, dismissed, and then re-filed twice by the unreasonable delay. In addition, defense postponement of prosecution in this case by Commonwealth. But this does not amount to an counsel contributed to the asking for a continuance. In proceedings on July 3, 2002, defense counsel asked for a continuance to delay his submission of a brief until September 2002. Neither the defendant's due process rights or his right to a speedy trial were violated. The failure of the Commonwealth to include a "to wit" clause in the Information. In regard to the defendant's final argument, the Court of Common Pleas of Cumberland County, the Honorable Kevin A. Hess presiding, ruled in Commonwealth v. John E. Stone, Jr., a copy of which is attached hereto, that Pa.R.Crim. P. 560 controls this issue and does not require the Commonwealth to include a "to wit" statement in the Information.