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Home My WebLink AboutCP-21-CR-0000078-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0078-2009 : : ANTHONY ROSELLI II : IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. OPINION AND ORDER Before the court is a defense motion to suppress evidence. The facts are as follows. On August10, 2008, at approximately 12:55 a.m., Corporal Jerry Oberdorf (“Oberdorf”) of the Pennsylvania State Police was in full uniform and operating a marked car. Oberdorf observed a blue Jeep being driven by Anthony Roselli, II (“Defendant”) driving with half of the 1 vehicle across the white fog line and onto the berm. (Prelim. Hr’g. Tr. 3:6-16) When Oberdorf first observed Defendant’s vehicle, he was travelling east on Trindle Road, and Defendant was travelling west on Trindle Road, in the area of Fairview Street in North Middleton Township. Id. 3:12-15. Oberdorf then executed a U-turn in order to catch up to Defendant’s vehicle, and he had to travel at considerable speed to do so because the Defendant was driving in excess of the speed limit. Id. 3:17-20. At the border between North Middleton Township and Carlisle Borough, Trindle Road becomes High Street. Oberdorf observed Defendant driving through the intersection of High Street and North Spring Garden Street without stopping, although the traffic signal displayed a steady red indication. Id. 3:21-23. Oberdorf continued following Defendant, and he observed Defendant driving through a steady red signal at the intersection of High Street 1 The transcript of the Preliminary Hearing was incorporated into the record of this case by agreement. CP-21-CR-0078-2009 and North East Street without stopping. Id. 4:2-4. Defendant then turned left onto Bedford Street, where Oberdorf initiated a traffic stop. Id. 4:4-5. When Oberdorf made his first contact with Defendant, he recalled Defendant having bloodshot, glassy eyes, slightly slurred speech, and a strong odor of alcohol on his breath. When asked by Oberdorf, Defendant indicated he had been drinking, and Defendant also admitted to driving partially on the berm of the roadway and running through a red light without stopping. Defendant submitted to the Horizontal Gaze Nystagmus (“HGN”), Walk and Turn, One Leg Stand, and Preliminary Breath Test (“PBT”) field sobriety tests. The PBT was administered last, approximately fifteen minutes after first observing Defendant’s vehicle. (Prelim. Hr’g. Tr. 35:12-14.) The results of all of these tests indicated impairment. Oberdorf then took Defendant into custody and transported him to Carlisle Regional Medical Center for a blood draw that indicated Defendant’s blood alcohol content was 0.122%. DISCUSSION Defendant first alleges that insufficient probable cause existed for Oberdorf to conduct a traffic stop of Defendant’s vehicle. Defendant’s counsel begins this argument by pointing to 75 Pa.C.S.A. § 6308(b), which reads, in relevant part: Whenever a police officer … has reasonable suspicion that a violation of [the Vehicle Code] 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 [the Vehicle Code]. 2 CP-21-CR-0078-2009 75 Pa.C.S.A. § 6308(b). This provision is coupled with a number of authorities generally supporting the proposition that probable cause for a vehicle stop does not exist where a vehicle makes momentary and minor deviations from marked roadway lanes. See, e.g., Com. v. Gleason, 567 Pa. 111, 785 A.2d 983, (2001); Com. v. Garcia, 859 A.2d 820, 823 (Pa.Super. 2004); Com v. th Battaglia, 802 A.2d 652, 656 (Pa.Super. 2002); Com. v. Malone, 19 Pa. D. & C.4 41, 44-45 (Cumberland Co. 1993). In September 2003, the General Assembly amended 75 Pa.C.S.A. § 6308(b), effective February 1, 2004. See Com. v. Smith, 917 A.2d 848, 850 (Pa.Super. 2007), citing Martin v. Com., 588 Pa. 429, 449, 905 A.2d 438, 450 (2006) (Eakin, J., concurring) (“Effective February 1, 2004, the General Assembly ‘lowered the quantum of cause an officer must possess from “articulable and reasonable grounds” [which is equivalent to probable cause] to “reasonable suspicion” to conduct a vehicle stop.’”) Specifically, the phrase “reasonable suspicion” was inserted for the purpose of eliminating the standard created in Gleason. Com v. Sands, 887 A.2d 261, 267-68 (Pa.Super. 2005), quoting Legislative Journal-House, July 8, 2003 at 1444-45 (Comments of Representative Harper). The relevant standard for application of the current version of Section 6308(b) is found in Commonwealth v. Sands, 887 A.2d 261 (Pa.Super. 2005). In Sands, the defendant driver passed over the fog line by about three feet, three different times on a portion of the road without curves or other obstructions to explain the drifting. Sands, 887 A.2d at 272. The court found that the police officer had reasonable suspicion that the defendant was driving under the influence based on these conclusions, observing that the court “must accord due weight to the specific reasonable inferences [he] is entitled to draw from the facts in light of his experience.” Sands, 887 A.2d at 3 CP-21-CR-0078-2009 272, quoting Com. v. Rogers, 578 Pa. 127, 133, 849 A.2d 1185, 1189 (2004) (internal quotation marks omitted). In any event, Defendant’s counsel ignores Oberdorf’s observation of Defendant driving at two an excessive rate of speed and driving through red lights without stopping. Instead, Defendant’s counsel contends that Oberdorf’s decision to execute a vehicle stop was based solely on Defendant driving with half of his vehicle on the wrong side of the white fog line. This does not comport with the facts of the case. The testimony is abundantly clear that the trooper executed a traffic stop on Defendant’s vehicle after he observed Defendant fail to comply with not one, but two traffic lights displaying steady red indications. Clearly, Oberdorf had sufficient reasonable suspicion to execute a traffic stop on Defendant’s vehicle under 75 Pa.C.S.A. § 6308(b). Defendant also argues that any evidence involving the HGN test and the PBT should be suppressed. The Commonwealth concedes that the results of these tests are inadmissible at trial. We are satisfied, therefore, that these issues are moot. Defendant finally asserts that Oberdorf lacked probable cause to place him under arrest. Defendant first points to Commonwealth v. Kohl, 395 Pa.Super. 73, 576 A.2d 1049 (1990) in making this argument. In Kohl, the court addressed, inter alia, the question of whether probable cause existed to justify a warrantless search under 75 Pa.C.S.A. § 1547(a)(1). The court said, “Probable cause exists where the officer has knowledge of sufficient facts and circumstances to warrant a prudent person to believe that the driver has been driving under the influence of alcohol or a controlled substance.” Com. v. Kohl, 395 Pa. Super. at 79, 576 A.2d at 1052 (1990) (internal citations omitted). 4 CP-21-CR-0078-2009 Here, Oberdorf’s observation of multiple moving violations, Defendant’s glassy, bloodshot eyes, slightly slurred speech, and the odor of alcohol on Defendant’s breath formed the basis upon which Oberdorf asked Defendant to submit to standardized field sobriety tests. Four tests were conducted: the HGN test, the Walk and Turn test, the Stand on One Leg test, and the PBT. In Oberdorf’s opinion, all four tests indicated impairment. Defendant’s counsel argues that because they are not admissible at trial, the results of the HGN test or the PBT cannot factor into Oberdorf’s determination of whether probable cause to arrest Defendant existed. The question of admissibility at trial and whether police may use these tests are, of course, two distinctly separate inquiries. HGN testing is a permissible means by which police officers can determine whether probable cause to arrest for DUI exists. Police officers such as Oberdorf receive training in administering the HGN test. No authorities exist forbidding their use by police officers when determining whether probable cause to arrest exists. With regard to the PBT, 75 Pa.C.S.A. § 1547(k) provides expressly that, “The sole purpose of this preliminary breath test is to assist the officer in determining whether or not the person should be placed under arrest.” 75 Pa.C.S.A. § 1547(k). ORDER rd AND NOW, this 23 day of June, 2009, the omnibus pretrial motion of the Defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. 5 CP-21-CR-0078-2009 Daniel Sodus, Esquire Sr. Assistant District Attorney Justin J. McShane, Esquire For the Defendant :rlm 6 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-0078-2009 : : ANTHONY ROSELLI II : IN RE: OMNIBUS PRETRIAL MOTION BEFORE HESS, J. ORDER rd AND NOW, this 23 day of June, 2009, the omnibus pretrial motion of the Defendant in the nature of a motion to suppress evidence is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Daniel Sodus, Esquire Sr. Assistant District Attorney Justin J. McShane, Esquire For the Defendant :rlm