HomeMy WebLinkAboutCP-21-CR-0003145-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA
:
: CP-21-CR-3145-2008
: CHARGE: (1) DUI, GENERAL
: IMPAIRMENT (2nd)
V. : (2) DUI, HIGHEST RATE (2nd)
: (3) DRIVING ON ROADWAYS
: LANED FOR TRAFFIC (Summary)
:
:
DAVID EDWARD FECZKO :
OTN: L434132-6 : AFFIANT: TPR. KRISTA MILLER
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, Jr., J., January 19, 2010 –
Defendant David Feczko (hereinafter “Defendant”) was charged with DUI, General
Impairment; DUI, Highest Rate; and Driving on Roadways Laned for Traffic. On May 21, 2009,
based on a stipulated record, Defendant was found guilty as charged. On November 23, 2009,
Defendant was sentenced on Count 2 to pay the costs of prosecution, a $1,500.00 fine, and
undergo imprisonment in the Cumberland County Prison for 90 days to 5 years. On Count 3,
Defendant was sentenced to pay the costs of prosecution and a $25.00 fine. Count 1 merged
with Count 2 for sentencing purposes. Defendant filed a direct appeal to the Superior Court of
Pennsylvania. Defendant was released on ROR bail subject to the conditions: 1) That he
continue alcohol treatment with Mazzitti & Sullivan until successfully discharged and 2) That he
not drink any alcohol.
In a concise statement of matters complained of on appeal, Defendant alleges that the
Court erred in denying Defendant’s Suppression Motion and concluding that the arresting officer
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had the requisite reasonable suspicion to stop Defendant’s vehicle. An Omnibus Pretrial Motion
was filed on February 12, 2009, motioning to suppress evidence and alleging that the arresting
officer lacked reasonable suspicion to effectuate a stop and lacked probable cause to arrest
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Defendant for driving under the influence. The issue of probable cause to arrest was withdrawn
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on April 28, 2009 and this Court determined that there was sufficient evidence of reasonable
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suspicion to effectuate a stop.
STATEMENT OF FACTS
On August 19, 2008, while Trooper Miller was on patrol, she observed a vehicle crossing
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over the double yellow lines and swaying between the yellow lines and the white fog line.
Trooper Miller activated the camera within the patrol unit and observed the vehicle cross the
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white fog line several times and again cross the double yellow line. At this point, Trooper
Miller activated her lights and siren and conducted a stop, identifying Defendant as the driver of
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the vehicle. The video from the patrol car was submitted as an exhibit during the Omnibus
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Pretrial Motion hearing and viewed by the Court.
DISCUSSION
Police officers in Pennsylvania are permitted to effectuate a stop if they have reasonable
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suspicion that a violation of the motor vehicle code is occurring or has occurred. Prior to 2004,
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Concise Statement of Facts Complained of on Appeal, at 1, filed Dec. 23, 2009.
2
Defendant’s Omnibus Pretrial Motion at 2, filed Feb. 12, 2009.
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In Re: Omnibus Pretrial Motion Transcript at 3, Apr. 28, 2009 (Hereinafter OPMT at __.)
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OPMT at 15-6.
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OPMT at 4-5.
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OPMT at 5.
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OPMT at 4, 6.
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OPMT at 7.
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75 Pa.C.S.A. §6308 (b).
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Courts had held that officers were required to have probable cause of a violation before
effectuating a stop. This was a much higher burden. However, the language of 75 Pa. C.S.A.
§6308(b) was amended from “articulable and reasonable grounds” to “reasonable suspicion”
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effective February 1, 2004. This change reflected the legislature’s concerns about injuries
caused by drunk driving and subsequently created a lower burden for officers when making
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investigatory stops. When determining reasonable suspicion, innocent facts can combine under
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the totality of the circumstances to meet the burden. Although Defendant’s crossing the white
fog line or the double yellow line one time would not have given Trooper Miller reasonable
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suspicion of Defendant’s driving under the influence, crossing the fog line “two or three times”
combined with crossing the double yellow line twice while there was oncoming traffic amplifies
into reasonable suspicion.
Additionally, officers are required to give “specific observations which in conjunction
with reasonable inferences derived from those observations, led [them] reasonably to conclude,
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in light of his [or her] experience that criminal activity was afoot.” Trooper Miller has had
sufficient experience as a law enforcement officer and used her judgment and prior experience to
determine that the swaying and specific violations she observed were signs of driving under the
influence satisfactory to generate reasonable suspicion and conduct a stop. It cannot be
overlooked as was noted at the hearing, that the Defendant’s actions in crossing the double
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Commonwealth v. Battaglia, 802 A.2d 652 (Pa. Super. 2002).
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Pennsylvania 2003 Legislative Service, Act No. 2003-24, Approved Sept. 30, 2003.
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Commonwealth v. Sands, 887 A.2d 261, 271 (PA. Super. 2005).
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Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006) (quoting Commonwealth v.
Cook, 735 A.2d 673, at 676 (1999)).
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In Re: Omnibus Pretrial Motion Transcript at 5, Apr. 28, 2009.
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Commonwealth v. Reppert, 814 A.2d 1196, 1204 (Pa. Super., 2002) (citing Commonwealth v.
Cook, 735 A.2d 673, at 677 (1999)).
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yellow line was in and of itself a separate offense altogether. This action was a violation of 75
Pa.C.S.A. §3309(1), Driving on Roadways Laned for Traffic. The Officer would have been
justified to stop the Defendant’s vehicle for this violation alone.
While her testimony based on her observations is evidence enough and is adequate to
determine a finding of reasonable suspicion, the evidence was also given greater weight by the
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production of the video of Defendant’s driving recorded from the patrol car. This exhibit
speaks for itself and displays the swerving as described by Trooper Miller. Watching the video
provides ample proof that “the facts available to the officer at the moment of the [stop] ‘warrant
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a man of reasonable caution in the belief’ that the action taken was appropriate.”
CONCLUSION
For the foregoing reasons, this Court did not err in denying Defendant’s Suppression
Motion and concluding that the arresting officer had the requisite reasonable suspicion to
effectuate a stop.
By the Court,
M. L. Ebert, Jr., J.
Michelle H. Sibert, Esquire
Chief Deputy District Attorney
William T. Tully, Esquire
Attorney for Defendant
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OPMT at 9.
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Compare Commonwealth v. Smith, 917 A.2d 848, 856 (Pa. Super., 2007).
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Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000) (quoting Terry v. Ohio, 392 U.S. 1,
19-20 (1968)).
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