HomeMy WebLinkAbout97-1781 criminal appeal3. A34006/99
COMMMONWEALTH OF PENNSYLVANIA,
Appellee
REED ATVILLE STARR,
Appellant
1999 PA Super 239
IN THE SUPERIOR COURT OF
PEN NSYLVANIA
No. 332 MDA 99
Appeal from the Judgment of Sentence in the
Court of Common Pleas of Cumberland County,
Criminal Division, No. 97-1781
BEFORE: JOHNSON, JOYCE and TAMILIA, 33.
OPINION BY TAMILIA, J.'
F I L E O SEP 2 1 1999
JUDGMENT
oN CONSlDI~,,t770N ~F, i~ is now here ordered and
(djudged by this Court that the judgment of the Court of
Common Pleas of Cumberland County be, and the same
is hereby Afl±treed.
Dated:
.September 21, 1999
BY THE COUR~
]. A34006/99
COMMMONWEALTH OF PENNSYLVANIA,
Appellee
REED ATVILLE STARR,
Appellant
1999 PA Super 239
IN THE SUPERIOR COURT OF
PEN NSYLVANIA
No. 332 MDA 99
Appeal from the Judgment of Sentence in the
Court of Common Pleas of Cumberland County,
Criminal Division, No. 97-1781
BEFORE: .1OHNSON, ]OYCE and TAMILIA, ]].
OPINION BYTAMILIA, ].' I= I L E I:1 SEP 2 1 1999
¶ 1 Appellant, Reed Atville Starr, appeals from his October 7, 1998
judgment of sentence of a $300 fine and forty-eight (48) hours to twenty-
three (23) months' imprisonment imposed after he was convicted of driving
under the influence of alcohol,z
¶ 2 The evidence adduced at trial indicates that Patrolman William Strayer
of Upper Allen Township was on routine patrol in a marked police car on
August 15, 1997. At 9:51 p.m., while working the night shift, Officer
Strayer received a report from county control that a citizen had called in a
report of a possible drunk driver. The citizen indicated that he had followed
a purple or maroon Ford Explorer, license number SCL531, for several miles
over several roads. The vehicle was being driven erratically and weaving
back and forth, and the citizen was concerned for the safety of the public.
~Appellant was convicted of violating 75 Pa.C.S.A. § 3731(a)(1)(4).
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Eight minutes after receiving the citizen's report, Officer Strayer spotted
appellant's vehicle and followed him for approximately one and one-half
miles. His patrol car was equipped with a video camera, which was
activated as Strayer followed appellant. Strayer observed appellant's vehicle
being driven erratically and repeatedly straddling the white fog line on the
right side of the road. At one point, for approximately 300 yards, the
vehicle's right tires rode on top of the fog line. On two occasions, the officer
also observed dust come from under the vehicle's right tires as they left the
edge of the road. After the second of these occasions, Strayer stopped
appellant's vehicle. As he spoke with appellant, Strayer detected the odor of
alcohol. Appellant subsequently failed a field sobriety test and was arrested
for DU]~. Chemical testing of appellant's breath indicated a blood alcohol level
of. 152 percent.
¶ 3 On April 3, 1998, a hearing was held on appellant's omnibus pretrial
motion to suppress. Due to the nature of appellant's claim on appeal, a
detailed review of this hearing is necessary. The sole issue addressed at the
hearing was whether Strayer had reasonable and articulable suspicion so as
to justify the stop of appellant's vehicle. The parties stipulated that if the
court found that Strayer properly conducted the traffic stop, the subsequent
arrest for DU! was lawful. Strayer testified to receiving the radio report that
appellant's vehicle was "weaving back and forth so much to the point that
the person who called believed that the operator was driving under the
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influence." (N.T., 4/3/98, at 9-10.) He also testified that as he followed
appellant, "the vehicle swayed and on several occasions the tires of the
vehicle rode onto the white line on the right side and on one occasion they
crossed over the right side of Lisburn Road .... He would swerve over
right on the line and then come back over, and I believe there were three or
four occasions when he did this." (N.T. at 14.) Under questioning by the
district attorney, Strayer stated he stopped appellant's vehicle for two
reasons: based upon the radio report, he was concerned for public safety,
and he personally observed appellant's erratic driving (N.T. at 20-21). On
cross-examination, Strayer also testified he based the traffic stop on his
observations of appellant's driving. The specific section he believed
appellant had violated was 75 Pa.C.S.A. § 3309, Driving on roadways
lined for traffic, which provides, "A vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from the lane
until the driver has first ascertained that the movement can be made with
safety. ,,2
2Section 3309(1) provides in its entirety:
§ 3309. Driving on roadways lined for traffic
Whenever any roadway has been divided into two
or more clearly marked lanes for traffic the following
rules in addition to all others not inconsistent
therewith shall apply:
(1) Driving within single lane.-- A vehicle shall
be driven as nearly as practicable entirely within a
single lane and shall not be moved from the lane
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¶ 4 Following the hearing, the court concluded that Officer Strayer lacked
reasonable grounds to suspect a violation of section 3309, because that
section does not require "perfect adherence to driving entirely within a single
marked lane on all occasions.''3 (Slip Op. at 3-4, citing Commonwealth v.
Malone, 19 D & C 4th 41, 44 (C.P. Cumberland County 1993).)
Nonetheless, the court denied appellant's motion to suppress. ]:n an Opinion
in support of its Order denying suppression, the court stated it had
conducted its own review of the videotape from Strayer's patrol car. Based
on this review, the court concluded appellant's vehicle weaved constantly,
the vehicle's tires were on the berm numerous times, the vehicle almost
struck a traffic sign and appellant's driving was erratic. (Slip Op., Guido, ].,
5/7/98, at 3.) The court further concluded that based upon all the facts
before him on the night in question - the citizen's report of a possible drunk
driver and his own observations of appellant's driving - Officer Strayer "had,
at the very least, a reasonable and articulable basis to stop the Defendant to
investigate a possible Driving Under the ]:nfluence offense. 75 Pa.C.S.A.
3731." (Slip Op. at 4.) On this basis, the court denied appellant's
until the driver has first ascertained that the
movement can be made with safety.
3 The court emphasized that, as in Commonwealth v. IVlalone, 19 D &
C4th 41, 44 (C.P. Cumberland County 1993), there were no other vehicles
on the road at the time Officer Strayer followed appellant.
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2. A34006/99
suppression motion and, following a nonjury trial, he was convicted of DUI.4
This appeal followed.
¶ 5 Appellant claims that because Officer Strayer testified the traffic stop
was based upon a suspected violation of section 3309, the trial court
improperly substituted its judgment for that of the officer when it
determined the stop was justified because Strayer had a reasonable and
articulable basis to suspect appellant of DUI.s In a related claim, appellant
argues the trial court violated his constitutional right to a fair hearing by
substituting its judgment for that of Officer Strayer. We reject these claims.
]:nitially, appellant's claims are erroneously based on the assumption that
Officer Strayer stopped appellant based solely on the suspicion that he had
violated section 3309. Instead, as noted, Officer Strayer testified at length
that the stop was based on the citizen's report of a possible DUI and on his
4The charge under section 3309 was dismissed.
SAppellant's first claim reads as follows:
[T]he suppression court erred in failing to grant
appellant's motion for suppression where the court
determined that the stop of appellant's vehicle was
not justified for the reasons articulated by the
arresting officer, but formulated its own conclusions
as to the manner of appellant's driving to justify the
stop of appellant's vehicle, which conclusions differ
from the facts and observations articulated by the
arresting officer as his justification for the stop of
appellant's vehicle.
(Appellant's Brief at 3.)
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own observation of appellant's erratic driving.6 Far from substituting its
own judgment for that of Officer Strayer, the court recognized "the officer
did state that the violation of section 3309(1) was not the only basis for his
stop. He said it was based on all of the circumstances existing that night."
(Slip Op. at 4 n. 4.) As the trial court noted, we have repeatedly held that
an investigatory traffic stop may be based upon an officer's observation of
erratic driving. See e.g. Commonwealth v. Hamme, 583 A.2d 1245 (Pa.
Super. 1990); Commonwealth v. Lymph, 538 A.2d 1368 (Pa. Super.
1988). Also, where the officer has not witnessed erratic driving first hand,
authority for a traffic stop nonetheless exists where the officer receives a
6Officer Strayer testified as follows:
Q. So what was the reason ultimately or the
reasons ! should say that you pulled this car over?
A. My first was the level of concern from our
original caller that he had not only taken the time to
contact Cumberland County Control, but he had
actually followed his car over several roads in several
directions and attempted to stay with this car as
much as possible until the police arrived in the area.
Q. And what else?
A. Once ! saw that car, seeing it matched the
description and, as you saw there, there was very
limited other traffic in the area, noticed that the car
on several occasions rode onto the white line and at
least on one occasion, .maybe more, that it actually
crossed over to the point you can see the white line
on the inside edge of the tire, the right side tire.
Q. The areas in which the car went over too
far on the right-hand side--
A. Um-hum.
(N.T., 4/3/98, at 20-21.)
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report from another officer or citizen witness and later personally observes
the erratic driving. See e.g. Hamme, supra; Commonwealth v.
Levesque, 364 A.2d 932 (Pa. 1976); Commonwealth v. Guerry, 364 A.2d
700 (Pa. Super. 1976). It is true, as appellant suggests, the trial court drew
certain factual conclusions based on its review of the videotape.
Nonetheless, in concluding that Officer Strayer had reasonable and
articulable suspicion to conduct a traffic stop of appellant's vehicle, the court
clearly relied upon Strayer's testimony and the other facts available to him
on the night in question.
¶ 6 In reviewing a trial court's denial of a motion to suppress, our
responsibility is to determine whether the record supports the factual
findings of the suppression court and the legitimacy of the inferences and
legal conclusions drawn from those findings. Commonwealth v, Hughes,
555 A.2d 1264 (Pa. :[989). We must consider the evidence of the
prosecution's witnesses and so much of the evidence of the defense, as read
in the context of the record as a whole, remains uncontradicted. /'d.
Employing this standard of review, we find no error in the trial court's
conclusion that the facts known to and articulated by Officer Strayer
provided a lawful basis for the stop of appellant's vehicle. See Hamme,
supra (police report of defendant's erratic driving sufficient to constitute
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reasonable and articulable suspicion to support a traffic stop).7 Accordingly,
we reject appellant's claim that the trial court impermissibly substituted its
judgment for that of Officer Strayer.8
¶ 7 Appellant's final claim is that the trial court erred "in admitting the
results of the chemical testing of Appellant's breath into evidence where the
Commonwealth failed to establish that the simulator solution or ampoules
used in the accuracy testing and in the actual testing itself were certified by
the manufacturer to produce the results intended and that such certification
resulted from tests conducted by independent laboratories." (Appellant's
Brief at 8-9.) This issue arose during the trial testimony of Cathleen Cook, a
certified operator of the ]:ntoxilyzer 5000, the device used to conduct alcohol
testing of appellant's breath. Defense counsel objected to the admissibility
of the test results on the basis that the Commonwealth did not admit into
evidence a manufacturer's certification of the simulator solution used in
conjunction with the device.9 The trial court found, and we agree, that
7Of course, as appellant recognizes, once Officer Strayer detected the odor
of alcohol and appellant failed the field sobriety tests, probable cause existed
to arrest appellant for DUI:. See Commonwealth v. Hamme, 583 A.2d
1245 (Pa. Super. 1990) (detection of odor of alcohol on breath and failure of
field sobriety test was sufficient to establish probable cause for arrest after
valid traffic stop).
8In light of this finding, appellant's related constitutional claim also fails.
9The Commonwealth did admit certificates of accuracy and calibration for the
]:ntoxilyzer 5000. 67 Pa.Code 77.22 defines "simulator solution" as follows:
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resolution of this issue is controlled by the holding of Commonwealth v.
Little, 512 A.2d 674 (Pa. Super. 1986). In that case, a panel of this Court
rejected the precise claim raised by appellant herein:
Appellant next contends that the
Commonwealth did not properly admit evidence
pertaining to certification of simulator solution and
ampoules utilized in the breath testing process. The
lower court reasoned that 'since there is no statutory
requirement for the solutions which are used to test
intoximeters to be certified, the Court also properly
admitted the intoximeter results.' Lower ct. op. at 3.
To this finding we must agree.
/'d. at 677 (citation omitted). As Little noted, the certification requirements
of simulator solution and ampoules are set forth under 67 Pa.Code 77.24(d)
and (e), which at this time provide:~°
(d) Simulator solution certification. The
manufacturer of simulator solution shall certify to the
test user that its simulator solution is of the proper
concentration to produce the intended results when
used for accuracy inspection tests or for calibrating
breath test devices. This certification shall be based
on a gas chromatographic analysis by a laboratory
independent of the manufacturer.
Simulator solution.--An aqueous standard ethanol
solution which, when equilibrated with air in the
breath simulator device, produces an air-alcohol
mixture of a predetermined concentration that is
designed to give a specific reading on breath test
equipment and can be used to calibrate and verify
the accuracy of Type A alcohol breath test devices.
~o Since the 1986 decision in Commonwealth v. Little, 512 A.2d 674 (Pa.
Super. 1986), the Pennsylvania Code has been modified so as to require
specifically that certification be done by a laboratory independent of the
manufacturer.
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(e) Ampoule certification. The manufacturer of
ampoules utilized in Type A breath testing devices
shall certify to the user that its ampoules will
produce the intended results when used for actual
alcohol breath tests, accuracy inspection tests or for
calibrating breath test devices. The certification shall
be based on laboratory testing conducted by a
laboratory independent of the manufacturer. The
laboratory testing shall employ generally accepted
scientific methods sufficient to insure that the
ampoules conform to manufacturer specification.
Discussing these provisions, the Little court continued:
'Section 77.24(d) and (e), respectively, clarify
that the certifications by the manufacturer of
simulator solution and by the manufacturer of
ampoules are to be based upon testing by an
independent laboratory.' 15 Pa.B. 682 (February 23,
1985).D1]
This regulation requires that the manufacturers
of ampoules certify to their users that the ampoules
will give the anticipated results when used for
alcohol breath tests, accuracy inspection tests or
calibrations using breath test equipment, 77.24(e).
Certification of the accuracy of ampoules will ensure
the integrity of the entire testing procedure ....
The Departments believe that the manufacturers of
ampoules can most effectively, economically and
efficiently analyze their own ampoules and certify
their accuracy to their users.
14 Pa.B. 4600-601 (December 22, 1984). We
find that the legislature has spoken on this issue and
that the Commonwealth does not bear the burden of
simulator solution or ampoule certification. The
legislature has determined that the manufacturer is
in the best position to test and certify its own
product through independent testing. Furthermore,
we find that the placing of such a product on the
market by the manufacturer, after independent
See footnote 10.
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testing, to be certification to the user that the
product will produce the intended results per
statutory requirement. 67 Pa.Code 77.24(d), (e).
Absent some suggestion that the products were in
fact defective, the Commonwealth was under no
burden to show certification of the manufacturer's
product.
I'd. at 678 (emphasis added). As the trial court found, appellant in this case
has not suggested that the simulator solution or ampoules used in the
testing of his breath were defective. Thus, Little provides that the
Commonwealth had no burden to produce certifications for the solution or
ampoules.
¶ 8 In order to avoid this conclusion, appellant argues Little no longer
represents the law of the Commonwealth. According to appellant,
subsequent rulings of this Court "clearly indicate that the law now requires
the Commonwealth to show full compliance with both the statutory and
regulatory requirements pertaining to chemical testing of breath as a pre-
condition to admissibility, including establishing that the simulator solution
and ampoules used to establish the accuracy of the machine's operation
have been properly tested and certified." (Appellant's Brief at 22.) In
support of this argument, appellant relies principally on two cases,
Commonwealth v. Townsend, 613 A.2d 564 (Pa. Super. 1992), and
Commonwealth v. Th#l, 612 A.2d 1043 (Pa. Super. 1992). However, as
the trial court noted, Townsend and Thill are inapposite. In both cases,
this Court held that where the evidence demonstrated that the laboratory
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which determined the accuracy of the simulator solution was not
independent of the solution's manufacturer, it was error to admit a breath
test because 67 Pa.Code 77.24 requires that accuracy be determined by an
independent laboratory. Neither case involved the Commonwealth's
obligation to produce certificates for the solution or ampoules, instantly,
there was no question as to the independence of the laboratory testing the
solution used to determine appellant's blood alcohol level. ]instead,
appellant is claiming the Commonwealth has a general obligation to produce
the certificates, even where there is no suggestion of a product defect.
Little rejected this claim and its decision in this regard has been cited as
recently as 1998. See Commonwealth v. Hoopes, 722 A.2d 172, 176 (Pa.
Super. 1998) ("]:nstantly, we agree with the trial court that Little is binding
precedent. Appellant has introduced no evidence to suggest that the
laboratory's product was defective. Consequently, the Commonwealth was
not required to produce certification by an independent laboratory, and the
trial court properly rejected Appellant's argument."); see also
Commonwealth v. Brosnick, 607 A.2d 725, 729 (1992) ("The Superior
Court has concluded . . . that the manufacturer's certificate presumptively
establishes the accuracy of the ampoule and that the Commonwealth (the
party with the burden of proof) is entitled to rely on the certificate[.] Little,
[supra]. Such a conclusion is consistent with one of the purposes of 75
Pa.C.S. § 1547 which is to facilitate the acquisition of chemical testing under
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scientifically accepted standards, and to permit their utilization in legal
proceedings so that intoxicated drivers are removed from the roads of the
Commonwealth."). As these cases indicate, Little remains good law and we
reject appellant's claim to the contrary. Likewise, we reject appellant's claim
that Little's requirement that a defendant produce some suggestion of a
product defect improperly shifts the burden of proof from the
Commonwealth to the defendant. Far from shifting the burden of proof from
the Commonwealth, Little establishes a rebuttable presumption that placing
the solution or ampoules on the
constitutes certification that the
market, after independent testing,
products will operate as intended.
Defendants are permitted to rebut that presumption with some evidence of a
product defect, instantly, appellant failed to offer evidence of a defect and
the Commonwealth was therefore entitled to rely on the presumption of
accuracy. Accordingly, we find no abuse of discretion in the trial court's
admission of the test results. See Commonwealth v. Verticelli, 706 A.2d
820 (Pa. Super. 1998) (an appellate court will not reverse a trial court's
evidentiary ruling absent an abuse of discretion).
¶ 9 Having rejected appellant's claims on appeal, we affirm the October 7,
1998 judgment of sentence.
¶ 10 Judgment of sentence affirmed.
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