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HomeMy WebLinkAboutCP-21-CR-1133-2002COMMONWEALTH V. RICHARD COULSON LAVERY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-1133 CRIMINAL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., January ,2003 The defendant was convicted by a jury of fleeing or attempting to elude a police officer~ and by the court of various related summary offenses.2 He has filed this timely appeal in which he raises the following issues: (1 .) We erred in finding that the stop of the defendant was the product of a "fresh and hot pursuit." (2.) We did not give defendant's counsel ample latitude to examine his expert witness in light of matters raised during recross examination. (3.) We erred in refusing to allow certain exhibits to go out with the jury. (4.) The evidence was insufficient to sustain the verdict or, in the alternative, the verdict was against the weight of the evidence. We will address each issue in the opinion that follows. ~ 75 Pa. C.S.A. § 3733. : Driving under suspension (75 Pa. C.S.A. § 1543(a)); reckless driving (75 Pa. C.S.A. § 3736) and illegal passing (75 Pa. C.S.A. § 3307). NO. 2002-1133 CRIMINAL Hot Pursuit. The defendant filed a pretrial motion to suppress all evidence obtained after his arrest. He alleged that the arrest was illegal since it occurred outside the arresting officer's jurisdiction. After an evidentiary hearing we denied the motion. Defendant challenges our decision on appeal. We will recite briefly the relevant facts established at the evidentiary hearing. At approximately 9:00 p.m. on January 25, 2002, the defendant's vehicle was traveling east on Trindle Road.3 Officer Shumaker of the Middlesex Township Police Department was traveling south on Hickorytown Road. As he was approaching the intersection with Trindle Road, he saw the defendant's vehicle execute a "very dangerous" pass in a marked no passing zone. At its intersection with Hickorytown, and for some distance in both directions, the center line of Trindle Road forms the boundary between Middlesex and Monroe Townships. The east bound lane is in Monroe Township, which is under the jurisdiction of the Pennsylvania State Police. The west bound lane is in Middlesex Township. In order to complete the illegal pass, the defendant's vehicle entered into and traveled approximately 70 yards within Officer Shumaker's jurisdiction. The officer immediately activated his lights in order to effectuate a traffic stop. What followed was a hair raising high speed chase in and out of traffic for over four miles.4 The chase took place in several jurisdictions, ending in the Borough of Mechanicsburg. As soon as it became apparent that the defendant would not stop, ~ Trindle Road, or State Route 641, is a two lane roadway serving as the main connector between the boroughs of Mechanicsburg to the east and Carlisle to the west. 4 Several cars in the westbound lane had to pull off the road to avoid a head on collision with defendant's vehicle. NO. 2002-1133 CRIMINAL Officer Shumaker enlisted the aid of his fellow officers in the neighboring jurisdictions. While he slowed down for his own safety, as well as that of the public, the officer never turned off his emergency lights nor did he stop his pursuit. The defendant was eventually forced to stop when he came upon a traffic jam.5 As soon as he stopped, he was placed under arrest by Officer Shumaker. The Municipal Police Jurisdiction Act6 specifically authorizes a municipal police officer to make an arrest outside his primary jurisdiction under certain specified circumstances. The portions of the Act applicable to the instant case provide as follows: (a) General rule.-Any duly employed municipal police officer who is within this Commonwealth, 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 in the following cases: (2) 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.? On appeal the defendant contends that we erred in finding that Officer Shumaker was in hot and fresh pursuit at the time of the arrest. The Superior Court has held that "the hot and fresh pursuit requirement... necessitates a finding that the (officer) met the immediate, continuous, and uninterrupted standard previously applicable under the Intrastate Hot Pursuit Act as well as the additional requirement of some sort of chase." Commonwealth v. McPeak, 708 A.2d s The Mechanicsburg police had employed "stop sticks" which caused the traffic jam that led to the defendant's apprehension. 6 42 Pa. C.S.A. § 8951-8954. 7 42 Pa. C.S.A. § 8953(a)(2). NO. 2002-1133 CRIMINAL 1263, 1266 (Pa. Super. 1998). We were satisfied that all of those requirements had been met in the instant case. Therefore, we denied the defendant's motion. 8 Re-ReDirect Examination of Defendant's Expert The defendant next contends that we did not give his counsel ample latitude to re- examine his own expert witness. We are at a loss to understand the basis for this complaint. Defendant's counsel called a mechanic to testify as an expert witness. On direct examination the expert testified that the defendant's vehicle could not attain speeds equal to that of the police car chasing it.9 On cross examination he conceded that the car in question was capable of reaching speeds of 85 miles per hour "on its best day." On redirect, defense counsel brought out the fact that the car in question, being as old as it was, did not often see "its best day". On recross, the District Attorney established that the expert had told a detective that the car in question could travel between 80 and 90 miles per hour. 8 At one point near the end of the chase, Officer Shumaker, advised county control that he was discontinuing pursuit for safety reasons. He then began to decelerate. However, he never turned off his lights nor did he actually disengage the pursuit. Furthermore, he never lost sight of the defendant's vehicle for more then a second or two. As we noted at the conclusion of the suppression hearing: He never stopped pursuit. I find as a fact that he told the County he was going to discontinue for the safety, but he never stopped the pursuit. His lights were flashing. He continued all along. To argue or insinuate otherwise is just absolutely ridiculous. I don't think that Section 8953 was meant to allow a fleeing violator to get away simply because the officer is concerned about the safety of himself and others. Had he turned left and gone and got a doughnut and a cup of coffee and then found him later in Mechanicsburg, you would have a case. But in this particular case, he didn't do that. He slowed down to 15 miles over the speed limit instead of 35 in order to protect himself and the public, but he continued on the pursuit. Transcript of Proceedings, September 9, 2002, pp. 21-22. 9 The mechanic also testified that there are several models that look similar to the defendant's car. NO. 2002-1133 CRIMINAL After recross we excused the witness. Defense counsel requested permission to ask some follow up questions, which we were reluctant to allow, l0 However, he was invited to sidebar to make an offer of proof. Counsel indicated that the detective had inquired about the wrong car.~ We allowed him to follow up, but limited his questioning to the offer of proof. We further advised him that we would consider allowing additional follow up questioning if needed. ~2 On re-re-direct the mechanic confirmed that the detective had inquired about a different car. However, he reiterated that the top speed for the defendant's vehicle was 85 miles per hour. The defense counsel did not request permission to ask any additional questions. ~3 Exhibits to the Jury. The defendant admitted a total of 14 photographs into evidence. The first eight were pictures of the intersection of Hickorytown and Trindle roads. The last six included two pictures of the car the defendant was driving as well as four similar looking vehicles. At the conclusion of the trial, we discussed with counsel which of those pictures would go out with the jury. 14 The defendant requested that they all go out. The Commonwealth objected to sending out any pictures except those of the actual car driven by defendant on the night in question. Defendant' s counsel argued strongly that the jury should be l0 Under the normal course of business, it is our practice to allow only redirect and recross. Although we could find no case law on point, we note that the scope of redirect is "largely within the discretion of the trial court." Commonwealth v. Dreibelbis, 493 Pa. 466, 479, 426 A.2d 1111, 1117 (1981). It would follow that the decision whether to allow examination beyond redirect is also within our discretion. ~ The car in question was a Volkswagen Golf. The detective had apparently asked about a Volkswagen Fox. ~2 See Trial Transcript, p. 74. ~ We note that we did not offer the opportunity for re-recross to the Commonwealth. 14 Trial Transcript, pp. 95-98. NO. 2002-1133 CRIMINAL allowed to take the pictures of the other cars with it to the deliberation room. He did not mention the various pictures of the site of the initial infraction. ~5 We decided to allow the jury to have only the two pictures of defendant's car. With regard to the pictures of the other vehicles, we noted "the fact that there are other Foxes and Golfs and other cars out there are - - ! mean... (t)hey add nothing.''~6 During the course of its deliberations, the jury asked to see Commonwealth' s Exhibit 2, which was a videotape of the entire chase. Defense counsel requested that the jury also be allowed to see defense exhibits 1 through 8. We declined his request, noting: They've asked to see the video, and I'll allow them to see the video. If they ask to see your photographs, I'll allow them to see your photographs.~7 Defendant' s Exhibits 1 through 8, pictures of the intersection of Hickorytown Road with Trindle Road, were designed to support the defense argument that the officer could not have seen the double yellow line on Trindle Road from his vantage point on Hickorytown Road. The videotape was of the chase itself, all of which took place over 4.2 miles on Trindle Road. The defendant conceded that he was stopped by the officer in Mechanicsburg where he admitted to having been driving under suspension. However, he contended that the vehicle chased by the officer for 4.2 miles was not his. The issue before the jury was whether the officer had been chasing defendant's vehicle not whether the officer was able to see the double yellow line at the point of the first infraction. ~s We note that we did not allow Commonwealth's Exhibit 2, a videotape of the chase made by the officer, to go out with the jury. Therefore, it would have been unfair to allow the pictures prepared by the defense to go out. 16 Trial Transcript, p. 96. 17 Trial Transcript, p. 99. NO. 2002-1133 CRIMINAL The decision on which exhibits to allow the jury to see during deliberations is committed to our discretion. Pa. Rule of Criminal Procedure 646(A); Commonwealth v. Bridges, 563 Pa. 1,757 A.2d 859, (2000). We exercised that discretion in the instant case in an attempt to enable the jury to focus on the issues before it without being unnecessarily confused. Sufficiency of the Evidence. A review of the record makes it clear that the defendant's sufficiency/weight of the evidence arguments are frivolous, at best. The officer testified that he pursued the defendant's vehicle, with his emergency lights flashing, for 4.2 miles. The chase approached speeds of 80 m.p.h, on a two lane roadway with a posted maximum speed limit of 45 m.p.h. The defendant wove in and out of traffic, executing high speed passes in posted no passing zones. Several oncoming cars had to leave the roadway to avoid a head on collision. The officer never lost sight of the vehicle he was chasing for more than a second or two and he recorded the entire chase on videotape. Finally, immediately upon being apprehended, the defendant conceded that he was driving under suspension. In view of the above, there was certainly sufficient evidence to allow the fact finder to conclude that all of the elements of the various offenses for which the defendant was convicted had been proven beyond a reasonable doubt. See Commonwealth v. Cox, 556 Pa. 368, 728 A.2d 923 (1999). Furthermore, no reasonable person could argue that the verdicts of guilt are "so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Zugay, 745 A.2d 639, 645 (Pa. Super. 2000). NO. 2002-1133 CRIMINAL DATE Edward E. Guido, J. Michelle Sibert, Esquire For the Commonwealth Karl Rominger, Esquire For the Defendant :sld