HomeMy WebLinkAboutCP-21-CR-0000631-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1) DRIVING UNDER THE
: INFLUENCE, GENERAL
v. : IMPAIRMENT
: (2) DRIVING UNDER THE
: INFLUENCE, HIGHEST
: RATE OF ALCOHOL
KENNETH E. :
GOTTSHALL, JR. :
OTN: L418954-4 : CP-21-CR-0631-2008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 6, 2009.
In this criminal case, Defendant was found guilty following a bench trial by
the Honorable Edward E. Guido of this court of Driving under the Influence,
General Impairment, and Driving under the Influence, Highest Rate of Alcohol,
1
each a second offense for mandatory sentencing purposes. He received a standard
2
range sentence.
From the judgment of sentence, Defendant has filed an appeal to the
3
Pennsylvania Superior Court. He remains at liberty on bail pending disposition of
4
the appeal.
The sole issue raised on the appeal, as expressed in Defendant’s statement
of errors complained of on appeal, is as follows:
Did the trial court err in denying Defendant’s Pre-trial Omnibus
Motion to Suppress evidence gathered after a traffic stop of Defendant’s
vehicle when there was no reasonable suspicion to stop Defendant’s
5
vehicle.
1
Order of Court, January 5, 2009.
2
Order of Court, March 3, 2009.
3
Defendant’s Notice of Appeal, filed March 3, 2009.
4
Order of Court, March 3, 2009.
5
Defendant’s Concise Statement of Matters Complained of on Appeal, filed March 27, 2009.
The pre-trial ruling complained of having been made by the undersigned
judge, this opinion in support of the ruling is written pursuant to Pennsylvania
Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
6
As the result of an incident occurring on October 21, 2007, Defendant was
charged in an Information with Driving under the Influence, General Impairment,
Driving under the Influence, Highest Rate of Alcohol, and Restriction on
7
Alcoholic Beverages. He filed an omnibus pretrial motion in the form of a
“Motion To Suppress—Lack of Reasonable Suspicion” on June 25, 2008,
contending that a stop of Defendant’s vehicle was effected without “reasonable
8
suspicion” and was thus violative of Sections 8 and 9 of Article I of the
Pennsylvania Constitution and the Fourth Amendment to the United States
9
Constitution.
At a hearing on the motion to suppress, the only evidence presented was
testimony of Commonwealth witness William J. Ceravola, the affiant in the case,
whom the court found entirely credible. In pertinent part, the evidence may be
summarized as follows:
At 1:44 a.m. on Sunday, October 21, 2007, Police Officer William J.
Ceravola of the Borough of Mount Holy Springs, Cumberland County,
Pennsylvania, observed a green Pontiac being driven by Defendant traveling on a
street in the borough at the rate of 10 miles per hour in a 25 mile-per-hour speed
10
zone. Defendant ultimately turned left on a two-way street having a 16-foot-wide
6
N.T. 4, Suppression Hearing, October 6, 2008 (hereinafter N.T. __).
7
Information, filed May 20, 2008. Defendant was ultimately found not guilty of Restriction on
Alcoholic Beverages. See Order of Court, January 5, 2009.
8
Defendant’s Omnibus Pretrial Motion, ¶11.
9
Defendant’s Omnibus Pretrial Motion, ¶12.
10
N.T. 3-6.
2
11
cartway and proceeded to drive down the middle of the street. The vehicle then
12
pulled to the right and stopped in a position blocking a residential driveway.
Believing that the driver may have been experiencing mechanical difficulty,
the officer stopped his patrol car behind that of Defendant with a view toward
13
rendering assistance. The layout of the street at that location was such that the
officer’s car was necessarily impeding a lane of travel, and he turned his flashing
14
lights on for purposes of traffic safety.
15
Defendant’s vehicle had not been “stopped” by Officer Ceravola,
16
Defendant was not, at this point, being detained by the officer, and Defendant
became aware of the officer’s presence only when the officer appeared on foot at
17
Defendant’s window. Officer Ceravola observed Defendant put a green bottle of
18
beer in the vehicle’s console, and noticed that he did not appear to know where
19
he was. When Defendant rolled down the window, the officer smelled a strong
20
odor of an alcoholic beverage and noticed further indicia of intoxication in the
21
form of slurred speech, glassy eyes, and fumbling with paperwork.
Following the hearing, the court entered an order denying Defendant’s
22
motion to suppress.
11
N.T. 5, 10.
12
N.T. 5, 11.
13
N.T. 6-7, 12.
14
N.T. 5-6, 12.
15
N.T. 6, 11.
16
N.T. 6-11.
17
N.T. 7.
18
N.T. 7.
19
N.T. 7.
20
N.T. 7.
21
N.T. 7-8.
22
Order of Court, October 6, 2008.
3
DISCUSSION
Statement of Law
Mere encounter. “It is often stated that under both federal and state
constitutional jurisprudence, there are three types of recognized interactions
between a law-enforcement officer and a citizen.” Commonwealth v. Sands, 2005
PA Super 372, ¶17, 887 A.2d 261, 268.
. . . Not every encounter between citizens and the police is so intrusive as
to amount to a “seizure” triggering constitutional concerns. . . . [The
Pennsylvania Supreme Court] has noted that there are three basic
categories of interactions between citizens and the police. The first
category, a mere encounter or request for information, does not need to be
supported by any level of suspicion, and does not carry any official
compulsion to stop or respond. . . .
Commonwealth v. Smith, 575 Pa. 203, 211, 836 A.2d 5, 10 (2003).
Among motor vehicle cases in which a mere encounter was involved is that
of Commonwealth v. Johonoson, 2004 PA Super 17, 844 A.2d 556. “In
Johonoson, a police officer was operating a police vehicle at approximately 3:00
a.m. when he noticed the defendant driving on a rural road in Chester County. The
defendant was driving substantially lower than the speed limit, with his four-way
hazard lights flashing. . . . The defendant then pulled his vehicle, which had been
damaged in an accident, to the side of the road. As a result, the officer pulled in
behind the defendant, activated the police vehicle’s overhead lights as a safety
precaution, and walked up to the defendant’s car in order to determine if assistance
was needed. When he approached the defendant’s vehicle, the officer observed
indicia of intoxication, and the defendant subsequently was arrested and convicted
of driving under the influence of alcohol.” Commonwealth v. Hill, 2005 PA Super
156, ¶9, 874 A.2d 1214, 1218 (Joyce, J., dissenting) (citation and quotation marks
omitted). In affirming a judgment of sentence, the Johonoson court rejected the
defendant’s position that the interaction constituted a seizure for constitutional
purposes, noting inter alia:
4
Appellant relies almost exclusively on Trooper Perloff’s flashing
lights as a signal that he was “not free to leave,” thus making the
interaction an investigative detention. We recognize that flashing overhead
lights, when used to pull a vehicle over, are a strong signal that a police
officer is stopping a vehicle and that the driver is not free to terminate this
encounter. The same is not necessarily true under the factual
circumstances presented here. It is one traditional function of State
Troopers, and indeed all police officers patrolling our highways, to help
motorists who are stranded or who may otherwise need assistance. Such
assistance is to be expected, and is generally considered welcome.
Often, and particularly at night, there is simply no way to render this
aid safely without first activating the police cruiser’s overhead lights. This
act serves several functions, including avoiding a collision on the highway,
and potentially calling additional aid to the scene. Moreover, by activating
the overhead lights, the officer signals to the motorist that it is actually a
police officer (rather than a potentially dangerous stranger) who is
approaching.
Commonwealth v. Johonoson, 2004 PA Super 17, ¶¶18-19, 844 A.2d 556, 562.
On the other hand, in Commonwealth v. Fuller, 2007 PA Super 407, 940
A.2d 476, the Pennsylvania Superior Court held that the interaction between a
motorist and police rose to the level of a seizure for constitutional purposes under
the following circumstances:
On May 11, 2006, shortly after midnight, Pennsylvania State
Troopers William Hoppel and Thomas Wool were traveling south-bound
on Gulick Street in Blossburg Borough when they observed in the distance
ahead a pick-up truck driven by Appellant traveling in the same direction.
Trooper Hoppel testified that as he and Trooper Wool eventually caught
up to the back of the truck, the truck slowed down almost to a complete
stop and then pulled off onto the berm of the road. The troopers then
pulled their vehicle onto the berm behind Appellant’s truck, and activated
their emergency lights. When Trooper Hoppel exited the police car and
approached Appellant’s truck, he noticed that Appellant was not wearing
his seat-belt, that his eyes were bloodshot and glassy, and that he smelled
of alcohol. Upon Trooper Hoppel’s request, Appellant produced his
driver’s license, but could not find his vehicle registration or insurance
card. When asked why he pulled off the roadway, Appellant told Trooper
Hoppel “because you guys were behind me.” . . . Trooper Hoppel asked
where Appellant was coming from, and he responded that he was coming
from a bar. Trooper Hoppel then requested that Appellant perform several
field sobriety tests, and when he was unable to do so, Appellant was
placed under arrest. A blood test revealed that Appellant had a blood
alcohol concentration (“BAC”) of .18%.
Id. at ¶2, 940 A.2d at 478. In reaching this conclusion, the Superior Court noted
that the appellant had “not engage[d] in any conduct[, such as driving significantly
5
or unusually slowly,] that would [have] suggest[ed] to the police that he needed
assistance.” Id. at ¶12, 940 A.2d at 475.
Traffic stop based upon reasonable suspicion. Under Section 6308(b) of the
Vehicle Code, the authority of a police officer extends to a stop of a motorist
based upon a reasonable suspicion that the driver is violating, or has violated, any
provision of the Code:
Whenever a police officer . . . has reasonable suspicion that a
violation of this title is occurring or has occurred, he may stop a vehicle,
upon request or signal, for the purpose of checking the vehicle’s
registration, proof of financial responsibility, vehicle identification number
or engine number or the driver’s license, or to secure such other
information as the officer may reasonably believe to be necessary to
enforce the provisions of this title.
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §6308(b).
Under Section 3802(a) of the Vehicle Code, “an individual may not drive,
operate or be in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the individual is rendered
incapable of safely driving, operating or being in actual physical control of the
23
movement of the vehicle.” Indicia of driving under the influence can include
24
erratic driving.
Under Section 3301(a) of the Vehicle Code, it is provided that “[u]pon all
roadways of sufficient width, a vehicle shall be driven upon the right half of the
roadway except [in certain circumstances not here relevant].” Act of June 17,
1976, P.L. 162, §1, 75 Pa. C.S. §3301(a).
Finally, a sufficient basis for a reasonable suspicion of a violation of the
25
Vehicle Code is far less than that required for a finding of guilt of the violation.
See Commonwealth v. McElroy, 428 Pa. Super. 69, 630 A.2d 35 (1993). Stated
otherwise, the Commonwealth’s inability to sustain its burden of proof beyond a
23
Act of September 30, 2003, P.L. 120, §16, as amended, 75 Pa. C.S. §3802(a) (2008 Supp.).
24
Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990).
25
See Commonwealth v. McElroy, 428 Pa. Super. 69, 630 A.2d 35 (1993).
6
reasonable doubt as to the violation is not, of itself, dispositive of the issue of
reasonable suspicion. See id. In addition, the validity of a stop is to be judged on
an objective basis, not upon the subjective view of the officer in question as to his
or her legal authority under the circumstances. Id.
Application of Law to Facts
In the present case, where Defendant (a) was driving ten miles per hour in a
25-mile-per-hour speed zone shortly before 2:00 a.m. on a Sunday morning, (b)
was operating the vehicle in the middle of the cartway, (c) stopped the vehicle in a
position blocking a driveway, and (d) was unaware prior to the officer’s
appearance next to his window that a police car had stopped behind him, and
where the officer (a) had engaged his vehicle’s flashing lights for traffic safety
purposes only, (b) had acted prudently in doing so under the circumstances, (c)
had not stopped Defendant’s vehicle, and (d) approached Defendant’s vehicle
solely for the purpose of rendering assistance to him if needed, the court was of
the view that the facts herein resembled those in Johonoson more than those in
Fuller and that the interaction between the officer and Defendant in its pertinent
phase represented a mere encounter as opposed to a seizure for constitutional
purposes.
If, for the sake of argument, it is assumed that the interaction rose to the
level of a seizure dependent for its legality upon a reasonable suspicion on the part
of the officer that a violation of the Vehicle Code had occurred, the officer’s
observation of (a) Defendant’s operation of the vehicle in the middle of the street,
(b) his excessively slow speed and (c) his act of blocking a private driveway
justified such a suspicion, in the court’s view. The fact that in a subjective sense
the officer may not have viewed the circumstances as warranting, initially, more
than a mere encounter with Defendant did not affect the actual scope of his
authority as measured by an objective standard.
For the foregoing reasons, the court entered the order complained of on
appeal, denying Defendant’s motion to suppress.
7
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Vincent M. Monfredo, Esq.
Attorney for Defendant
8