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HomeMy WebLinkAbout02-2482 CriminalCOMMONWEALTH JAMES R. D'ALESSANDRO IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-2482 CRIMINAL TERM OPINION IN SUPPORT OF ORDER DATED FEBRUARY 11, 2003 Bayley, J., December 16, 2003:-- Defendant, James R. D'Alessandro, was charged with counts of driving under the influence,1 and three summary offenses. He filed an omnibus pre-trial motion to suppress evidence upon which a hearing was conducted on February 11, 2003. An order was entered on February 11, 2003, denying the motion. We find the following facts. On August 9, 2002, at 11:26 p.m., Officer Troy Wiser of the Borough of Mt. Holly Springs was on patrol in the Borough northbound on South Baltimore Avenue (Route 34). South Baltimore Avenue is two lanes with a double yellow line in the middle and fog lines on each side. Officer Wiser saw a pickup truck approaching in the opposite direction. The truck crossed over the fog line on the right side of the highway by about two and a half feet. It passed the officer who turned around and followed. Officer Wiser saw the truck continually weaving back and forth across the double yellow line and the right side fog line. It then turned right onto Yates Street where it went off the right side of the road and came within inches of striking a guardrail. At that point, Officer Wiser had followed the truck for approximately one-half 1 75 Pa.C.S. § 3731 (a)(1). 02-2482 CRIMINAL TERM a mile. It was still in the Borough of Mt. Holly Springs. The officer decided to stop the truck at the first safe place. He activated his lights and siren when the truck was approximately one-quarter mile into South Middleton Township. The truck did not stop immediately, but it did stop approximately five-tenths of a mile further into South Middleton Township. Defendant sought to suppress all evidence obtained by the police after he was stopped. He averred that Officer Wiser did not have probable cause to stop him based on his driving while in the Borough of Mt. Holly Springs. The Municipal Police Jurisdiction Act, at 42 Pa.C.S. Section 8953(a)(2), provides that a municipal police officer may enforce the laws of this Commonwealth beyond the territorial limits of his primary jurisdiction: [w]here 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. (Emphasis added.) In Commonwealth v. McPeak, 708 A.2d `1263 (Pa. Super. `1998), the Superior Court of Pennsylvania stated that, "[i]n order for [an] arrest to have been valid under the MPJA, the offense needed to have been committed in, or the officers needed to have probable cause to believe the offense was committed in, the officers' primary jurisdiction." In Commonwealth v. Gleason, 785 A.2d 983 (Pa. 200'1), the Supreme Court of Pennsylvania granted an allowance of appeal to determine: [w]hether an arresting officer possesses reasonable and articulable -2- 02-2482 CRIMINAL TERM grounds to believe that a licensee violated a provision of the Vehicle Code, warranting the stop of the licensee's car, based upon his observations that the licensee's vehicle crossed the berm line by six to eight inches on two occasions for a period of a second or two over a distance of approximately one quarter of a mile. (Emphasis added.) The Court reversed an order of the Superior Court and reinstated an order of the trial court granting the defendant's motion to suppress evidence. It concluded that there was a lack of any evidence that the defendant's driving created a safety hazard which would have supported a stop under the Vehicle Code at 75 Pa.C.S. Section 3309(1), which requires that a vehicle shall be driven as nearly as practicable entirely within a single lane. The Vehicle Code at 75 Pa.C.S. Section 3309(1), provides: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (1) Driving Within Single Lane.--A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety. Gleason is not applicable to the present case because the facts are different. Here, defendant's driving for approximately one-half mile within the Borough of Mt. Holly Springs while continually weaving over the double yellow line and fog line, and at one point almost striking a guardrail, created a safety hazard sufficient for Officer Wiser to have probable cause of a violation of Section 3309(1). Cf. Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002) (no basis to "profile" suspected drunk driver on mere basis of observation of undisciplined driving; probable cause arises only from -3- 02-2482 CRIMINAL TERM observation that forms conclusion that there had been a violation of the Motor Vehicle Code). Accordingly, Officer Wiser's stop of defendant's vehicle was lawful, and the evidence obtained after the stop was admissible against him. (Date) Michael Mervine, Esquire Assistant District Attorney Paul Bradford Orr, Esquire For Defendant :sal Edgar B. Bayley, J. -4-