HomeMy WebLinkAboutCP-21-SA-2464-2003COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
JOEL CARY BLACK
CHARGE: DRIVING WHILE OPERATING
PRIVILEGE IS SUSPENDED OR REVOKED
(DUI RELATED) (SUMMARY OFFENSE)
CP-21-SA-2464-2003
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., July 15, 2004.
In this summary offense case, on December 8, 2003, District Justice Harold
E. Bender found Defendant guilty of driving under suspension (DUI related).~
Defendant's public defender filed an appeal on his behalf from the District
Justice's judgment of sentence,2 and the case was tried de novo before this court
on March 30, 2004.3 At the conclusion of the de novo trial, at which private
counsel had replaced the public defender, Defendant was again found guilty, and
was sentenced to pay the costs of prosecution and a fine of $1,000 dollars, and to
undergo imprisonment in the Cumberland County Prison for a period of 90 days.4
Defendant has now filed an appeal from the judgment of sentence to the
Pennsylvania Superior Court.s The bases
expressed as follows:
I. AS TO THE ORDER OF
JUDGMENT OF SENTENCE
of Defendant's appeal have been
COURT AND
DATED 30
MARCH 2004, ENTERED AFTER A HEARING
DE NOVO
The Court erred in denying Appellant's Motion to
Dismiss the 1543(b) citation, Driving with a
~ Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.A. §1543(b)(1)(1.1)(i).
2 See Notice of Appeal from Judgment of Sentence, filed December 9, 2003.
~ See Notes of Testimony, trial, March 30, 2004, at 3 [hereinafter N.T. __ ].
4 Order of Court, March 30, 2004. The sentence was the mandatory sentence prescribed by 75
Pa. C.S.A. §1543(b)(1)(1.1)(i).
5 See Notice of Appeal, filed April 28, 2004.
Bo
II.
mo
Bo
Suspended License (DUI related), based upon a
violation of Pennsylvania Rule of Criminal
Procedure 403, which reads, "If by statute a
sentence of imprisonment is authorized for the
offense(s) charged, such sentence may only be
imposed if neither the fine nor the costs is specified
in the citation and the Defendant therefore must
personally appear before the issuing authority."
Appellant believes such citation should have been
dismissed in that the offense carried a sentence of
imprisonment as was authorized by statute, the
citation contained both the fines and costs and the
Appellant appeared before the Magistrate with
regards to this citation.
AS TO THE ORDER OF COURT AND
JUDGMENT OF SENTENCE DATED 30
MARCH 2004, ENTERED AFTER A HEARING
DE NOVO
The Court erred in finding the Appellant guilty
when the citation presented by the Commonwealth
violated Pennsylvania Rule of Criminal Procedure
410 in that the filing of the citation was done in an
untimely fashion and the Appellant suffered
prejudice as a result of the untimely filing.
Specifically, Rule 410 requires the Court to
consider three questions: First, did the
Commonwealth have a reasonable basis for filing
the citation? Next, were there compelling reasons
that prevented the [C]ommonwealth from issuing
the citation? And, finally, was the Defendant
prejudiced by the untimely filing? The
[C]ommonwealth's officer testified that he had a
reasonable basis for filing the citation on the night
in question, but did not file until two (2) months
later. Further, the officer testified that no
compelling reasons existed that prevented him
from issuing the citation and, finally, the Appellant
testified the untimely filing of the citation
prejudiced him in that he lost two witnesses that
2
could have testified that he was not the driver of
the vehicle.6
This opinion in support of the judgment of sentence appealed from is
written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
At the commencement of the de novo summary trial before this court,
Defendant's counsel, in effect, made a motion to dismiss the citation:
[DEFENDANT'S ATTORNEY]: Your Honor, at this
point prior to [the affiant's] taking the stand, I would make an
objection to the Court--a statement to the Court in the nature
of I do not believe the Court has authority under the Rules of
Criminal Procedure 403 to impose sentence in this matter. The
citation that was issued to [Defendant]7 includes fines for the
1543 violation, as well as a notation of a 90 day jail sentence.
Under the rules, this is not permissible. Under the rules,
sentence may only be imposed if neither the fines nor costs are
specified in the citation. Since they were both specified, I do
not believe the Court has authority to impose a sentence with
regard to this matter, and I ask that the Court make that
determination prior to proceeding.
THE COURT: I am not following you, could you say that
in another way?
[DEFENDANT'S ATTORNEY]: Rules of Criminal
Procedure 403, any time the citation is issued, if the statute
required fines and/or imprisonment, that information may not
be listed in the citation. This traffic citation that I have in my
possession that [Defendant] received lists the fine as $1,000 for
the 1543 violation, it also lists a 90 day jail term. Under the
rules when this is done, the Court does not have authority to
impose either jail or a fine, and I would ask the Court to make
that determination. Again, it comes under Rule 403, cited
under basically the section under subsection 6 of that rule.
6 Concise Statement of Matters Complained of, filed May 13, 2004.
7 Actually, the citation was filed rather than issued. N.T. 29; Traffic Citation No. A9181525-3,
filed November 13, 2003 (hereinafter Traffic Citation No. A9181525-3)
3
THE COURT: Are you saying if the police officer for
some reason writes what the fine is on the citation, including a
mandatory fine, that the Court loses jurisdiction over the case?
[DEFENDANT'S ATTORNEY]' What the rule says,
quote, If by statute a sentence of imprisonment is authorized
for the offense(s) charged, such sentence may only be imposed
if neither the fine nor costs is specified in the citation and the
Defendant therefore must personally appear before the issuing
authority.
In this matter, this is a 1543 violation, which carries a 90
day jail term. As Your Honor is aware, pursuant to this rule,
once on the citation the fine is listed, which it is here, 1,000,
EMS, the CAT Fund, the cost and total due listed, once listed, I
submit under this rule the Court does not have authority to
impose a sentence on [Defendant].8
After reviewing Pennsylvania Rule of Criminal Procedure 403, the court
denied Defendant's motion, which it construed as a motion to dismiss the citation.9
The evidence presented at trial may be summarized as follows:
On September 24, 2003, at approximately 10:20 p.m.,l° Sergeant Scott
Bradnickil and Officer Blanchard (first name not of record), 12 of the Shippensburg
University Police Department,13 observed a green FordTM Bronco15 automobile
being driven on the wrong side16 of Old Main Drive,17 in an area situated on the
campus of Shippensburg University,la Cumberland County,19 Pennsylvania.
8 N.T. 3-5.
9N.T. 5.
l0 N.T. 6.
~ N.T. 6.
~2 N.T. 19.
~3 N.T. 18.
14 N.T. 6.
~s N.T. 24.
16 N.T. 6-7, 19.
~7 N.T. 18.
~8 N.T. 18.
4
According to the testimony of Sergeant Bradnick,2° he and Officer Blanchard were
parked in their Chevrolet Blazer police vehicle,2~ facing toward the Bronco, as it
proceeded in their direction.~ As the Bronco approached, the officers observed
the automobile travel in the wrong lane of traffic for approximately 200 yards.~3
Upon reaching a distance of about 25 yards from the officers' location, the
Bronco, occupied by three individuals,~4 made a left mm onto Prince Street, and,
in doing so, "cut the intersection short.''25
Officer Bradnick then turned right26 onto Prince Street,27 and followed the
Bronco for approximately 500 yards.~8 While following the vehicle on Prince
Street, Officer Bradnick observed the Bronco cross over the yellow line29 into the
opposing lane of traffic with one-half of the vehicle3° on three separate
occasions.3~ Having observed this, Officer Bradnick activated his vehicle's red
and blue emergency lights and attempted to stop the Bronco.32 Shortly thereafter,
the Bronco stopped at an intersection, with the left mm signal activated, and
remained motionless for approximately 30 seconds.33 The driver of the Bronco
then disengaged the left mm indicator and continued straight, through the
19 N.T. 6.
20 The court found Officer Bradnick's testimony credible in every respect.
2~ N.T. 24.
22 N.T. 6, 19-20.
23 N.T. 7.
24 N.T. 21.
25 N.T. 7.
26 N.T. 21.
27 N.T. 7.
28 N.T. 21.
29 N.T. 7.
30 N.T. 21.
~ N.T. 7, 21.
32 N.T. 7, 22.
~ N.T. 22.
intersection, and proceeded for approximately 100 yards before yielding to the
officer's emergency lights and stopping the vehicle on the side of the roadway.34
Once stopped, the officer activated his vehicle's "take-down light,''35 which
allowed him to see clearly into the Bronco.36 Before approaching the Bronco, and
while relaying certain information to the police dispatch office,37 Officers
Bradnick and Blanchard observed the driver of the vehicle exchange positions
with a passenger in the rear seat of the vehicle, 38 later identified as Jesse Ehrhart.39
When Officer Blanchard approached the vehicle, he requested a driver's
license from Mr. Ehrhart, as well as vehicle registration information4° and proof of
insurance.4~ In response to Officer Bradnick's request for identification from Mr.
Ehrhart, Defendant, who was now seated in the rear seat, produced Mr. Ehrhart's
identification, which had been situated on the back seat, and offered it to Mr.
Ehrhart.42 During this interaction, Defendant offered a Pennsylvania identification
card to the officer43 and repeatedly reached forward and retrieved a beverage
located in the driver's-side cup holder of the center console, partook of the
beverage, and returned it to the driver's-side cup holder.44
34 N.T. 7.
3s N.T. 8. The officer testified that a "take-down light" is a dual-spotlight, situated on a light bar
located above the roof area of the police vehicle, which, when illuminated, lit the interior of a
vehicle in front of it. N.T. 8, 25.
36 N.T. 24.
37 N.T. 23.
38 N.T. 8, 11, 25-26.
39 N.T. 26.
40 The vehicle was registered to a Fay Black. N.T. 13. Registration records reflected the same
address for Fay Black as was listed for Defendant's residence on Defendant's identification card.
N.T. 13. Defendant identified Fay Black as his mother. N.T. 13.
4~ N.T. 9.
42 N.T. 10.
43 N.T. 9, 11-12. Defendant was also in possession of a driver's license from either North or
South Carolina. N.T. 12.
44 N.T. 9.
6
Officer Bradnick then requested that Defendant exit the vehicle.45
Defendant complied, and, thereafter, inquired as to the officer's motivation for
stopping them.46 Officer Bradnick responded by informing Defendant of the
various traffic offenses he had seen Defendant commit.47
In the course of the detention, Officer Bradnick ran a check of the
Pennsylvania Department of Transportation's records, which reflected that
Defendant's license had been suspended (DU! related).48 Confronted with this
information, Defendant made an admission to Officer Bradnick that he had been
the driver of the vehicle, that he was aware that his driving privileges were
suspended, and that he knew he would have to spend 90 days in jail.49
Upon completion of the investigation at the scene, Officer Bradnick did not
immediately cite Defendant for the traffic infractions or for driving under
suspension (DU! related).5° He allowed one of the two other occupants5~ to drive
the vehicle away.
Thereafter, the officer requested a certified copy of Defendant's driving
records3 from PennDOT. Upon its arrival, and after verifying that the record
reflected that Defendant's driving privileges were suspended (DU! related), the
officer filed the citation at issue sub judice.54 Officer Bradnick testified that he
45 N.T. 11, 26.
46 N.T. 11.
47 N.T. 12.
48 N.T. 11-12.
49 N.T. 12, 28. While testifying at the trial, Defendant denied ever making such a statement. N.T.
35. However, he conceded that he knew, at the time of the incident, that his license was
suspended. N.T. 39.
50 N.T. 22, 28.
5~ Officer Bradnick determined through PennDOT records that Jesse Ehrhart had a valid driver's
license. N.T. 13.
52 N.T. 17.
53 N.T. 12, 17. The record was admitted into evidence as Commonwealth's Exhibit 1. N.T. 18.
54 N.T. 28.
7
filed the citation on the same day he received the certified record from
PennDOT.55
The citation was filed on November 13, 2003.56 A copy of the citation,
mailed to Defendant at the address that appeared on his identification card, was
received by him in mid-November.57 According to the Defendant's testimony, the
copy of the citation he received included notations as to the costs and a fine of
$1,000.00 and a "90 day ,jail time" notation.5a Officer Bradnick testified that he
had not included the costs, fine or "jail time" notations on his filing and did not
know who at the district.justice's office might have added them.59
At the March 30, 2004 trial before this court, Officer Bradnick identified
the driver of the vehicle as the Defendant.® Defendant stipulated that his driving
privileges were suspended (DUI related) on the date in question.6~ According to
the certified driving record,62 notice of the suspension of driving privileges had
been sent to Defendant on November 16, 2000, to the address listed on
Defendant's identification card.63 According to Defendant's driving record, his
55 N.T. 28.
56 Traffic Citation No. A9181525-3.
57 N.T. 33.
58 N.T. 34.
59 N.T. 30-31.
60 N.T. 8.
6~ N.T. 14.
62 An inspection of the Defendant's eight-page driving record, admitted into evidence as
Commonwealth's Exhibit 1, reveals the following driving history: two reckless driving
infractions, one failure to yield, six exceeding maximum speed violations, six driving while
license suspended violations (not including the instant charge), one suspension for chemical test
refusal, two driving under the influence violations, two failure to respond notations, and three
violations in Maryland of unknown character. See Commonwealth's Exhibit 1.
63 Commonwealth's Exhibit 1. The address where official notice was sent was also the address
on record for Fay Black, Defendant's mother and owner of the vehicle Defendant drove on the
date in question. N.T. 13.
driving privileges had been either suspended or revoked continuously since May
18, 1994.64
For his part, Defendant testified at trial that one of the other two occupants
of the Bronco had actually been its driver on the occasion of the stop.65 According
to his testimony, both of these gentlemen left the Cumberland County area at some
time after the incident on September 24, 2003, and prior to his receipt of the
citation.66 Having lost track of these individuals, he indicated, he was unable to
procure their attendance at trial to corroborate his current67 version of the events in
question.6a
At the conclusion of the evidentiary phase of the case, Defendant's counsel
argued for the first time that the prosecution should be dismissed because the
citation was filed rather than issued, in violation of Pennsylvania Rule of Criminal
Procedure 410.69 The delay in institution of the prosecution which resulted from
this violation prejudiced Defendant, according to his counsel, because he failed to
keep track of the other occupants of the vehicle, who could have corroborated his
story that one of them was driving. 70
64 See Commonwealth's Exhibit 1.
65 N.T. 38.
66 N.T. 34.
67 Defendant conceded that he had not told the officer at the scene that he had not been driving.
N.T. 35.
68 N.T. 34-35.
69 N.T. 42-45.
70 N.T. 43.
9
DISCUSSION
Pennsylvania Rule of Criminal Procedure 403. Pennsylvania Rule of
Criminal Procedure 403 (Contents of Citation) provides, inter alia, that a citation
shall include
a citation of the specific section and subsection of the statute or
ordinance allegedly violated, together with a summary of the
facts sufficient to advise the defendant of the nature of the
offense charged.TM
Rule 403 also provides that a citation "delivered" to a defendant shall
include notice:
that the defendant shall, within 10 days after issuance of the
citation:
(a) plead not guilty by:
(i) notifying the proper issuing authority in
writing of the plea and forwarding as collateral
for appearance at trial an amount equal to the fine
and costs specified in the citation, plus any
additional fee required by law. If the amount is
not specified, the defendant shall forward the
sum of $50 as collateral for appearance at trial; or
(ii) appearing before the proper issuing
authority, entering the plea, and depositing such
collateral for appearance at trial as the issuing
authority shall require. If the defendant cannot
afford to pay the collateral specified in the
citation or the $50, the defendant must appear
before the issuing authority to enter a plea, or
(b) plead guilty by:
(i) notifying the proper issuing authority in
writing of the plea and forwarding an amount
equal to the fine and costs when specified in the
statute or ordinance, the amount of which shall
be set forth in the citation; or
Pa. R. Crim. P. 403(A)(6).
10
(ii) appearing before the proper issuing
authority for the entry of the plea and imposition
of sentence, when the fine and costs are not
specified in the citation; or
(c) appear before the proper issuing authority to
request consideration for inclusion in an accelerated
72
rehabilitative disposition program ....
The language relied upon by Defendant with respect to Rule 403 appears
not in the Rule but in a comment to the Rule:
If the law enforcement officer specifies the fine and costs
in the citation, the defendant may plead guilty by mail. The
officer may specify the fine and costs only when the penalty
provided by law does not include imprisonment and the statute
or ordinance fixes the specific amount for the fine.
Consequently, if by statute a sentence of imprisonment is
authorized for the offense(s) charged, such sentence may only
be imposed if neither the fine nor costs is specified in the
citation and the defendant therefore must personally appear
before the issuing authority.73
Several factors militated against a dismissal of the citation in Defendant's
case based upon a purported violation of this comment. First, a comment to a
Rule of Criminal Procedure does not have the force of a rule. Cf. Commonwealth
v. Lockridge, 570 Pa. 510, 518, 810 A.2d 1191, 1195 (2002). Second, the express
language of Rule 403 does not affirmatively proscribe the inclusion of the
statutory penalty applicable to an offense on a citation, and even anticipates it in
some instances. Third, even if such a proscription were to be inferred from the
Rule, nothing therein would support the drastic remedy of a dismissal of a citation
for noncompliance. Fourth, any notation of penalty on the citation subjudice was
not made by a member of the class (law enforcement officers) encompassed by the
comment.
72 Pa. R. Crim. P. 403(B)(2).
73 Pa. R. Crim. P. 403, comment.
11
Fifth, the intention of the drafters of the comment was obviously to avoid a
situation where a defendant subjected himself or herself by a guilty plea by mail
(a) to a prison sentence without having been made aware of certain rights
regarding counsel in such casesTM and/or (b) to an unliquidated fine; the language
of the comment should not be interpreted as extending beyond this purpose.
Finally, a defect in the form or content of a citation will not justify a dismissal of
the citation in the absence of prejudice to the defendant;75 no such prejudice is
present in this case, where Defendant did not enter an uncounseled guilty plea, by
mail or otherwise, and has had two summary trials on the merits of the
prosecution.
For these reasons, the court declined to dismiss the citation against
Defendant on the ground that, as received by Defendant from the issuing authority,
it allegedly included a notation as to the statutory penalties of a fine and
imprisonment.
Pennsylvania Rule of Criminal Procedure 410. Pennsylvania Rule of
Criminal Procedure 410 provides as follows:
When it is not feasible to issue the citation to the
defendant, or when evidence is discovered after the issuance of
a citation that gives rise to additional summary charges against
the defendant resulting from the same incident, a law
enforcement officer shall institute a criminal proceeding in a
summary case by filing a citation with the proper issuing
authority.76
"When determining whether the filing of a citation [as opposed to the
issuance of the citation at the scene] was the correct procedure under the rules,
[and whether a violation of the Rule should result in relief to a defendant,] the
courts have considered whether there was a reasonable basis for filing, whether
74 See Pa. R. Crim. P. 409, 414.
75 Pa. R. Crim. P. 109.
76 Pa. R. Cim. P. 410.
12
there were compelling reasons to prevent issuing the citation, and whether the
defendant was prejudiced by the filing.''??
Several considerations led the court to deny Defendant's request at the
conclusion of the de novo trial that the prosecution be terminated because of a
purported violation of Pennsylvania Rule of Criminal Procedure 410. First, as the
court noted at the time of the request, Defendant's motion should have been made
at a much earlier stage of the prosecution;78 it was not fair to place the
Commonwealth in a position of trying to respond to this oral motion at the
conclusion of the trial. Second, it has been held to be a reasonable practice for an
officer to await written verification in the form of a certified driving record from
the Department of Transportation before instituting a prosecution for driving under
suspension (DUI related).79 Finally, Defendant could hardly have been surprised
that a prosecution for driving under suspension ensued from this incident, and any
prejudice to his case resulting from his failure to maintain contact with friends
whose testimony might have assisted him was largely self-induced.
For the foregoing reasons, it is believed that the judgment of sentence was
properly entered in the present case.
BY THE COURT,
Corey Kintzer, Certified Legal Intern
Geoffrey S. Mclnroy, Esquire
Office of District Attorney
J. Wesley Oler, Jr., J.
77 Pa. R. Crim. P. 410, comment; see Commonwealth v. Odle, 16 Pa. D. & C.3d 750 (Cambria Co.
1980); Commonwealth v. Lombardo, 4 Pa. D. & C.3d 106 (Clearfield Co. 1977).
78 Cg Commonwealth v. Trunzo, 404 Pa. Super. 15, 21 n.3,589 A.2d 1147, 1149 n.3 (1991).
79 Commonwealth v. Geyer, 442 Pa. Super. 143, 148-49, 658 A.2d 824, 826-27 (1995).
13
Kirk S. Sohonage, Esquire
26 West High Street
Carlisle, PA 17013
Attorney for Defendant
14