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HomeMy WebLinkAbout98-1470 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MARK ALLAN YOHE : 98-1470 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., March 3, 1999:-- On November 24, 1998, following a bench trial, defendant, Mark Allan Yohe, was found guilty of driving under the influence,1 and driving while his operating privilege was suspended, DUI related.2 On December 29, 1998, defendant was sentenced on the summary driving under suspension, DUI related count to a mandatory sentence of a $1,000 fine and imprisonment in the Cumberland County Prison for ninety days. On the count of driving under the influence, defendant was sentenced to a $300 fine and imprisonment in the Cumberland County Prison of not less than thirty days nor more than twenty months, to run consecutive with the sentence on the count of driving under suspension, DUI related. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania, in which he avers: (1) The court erred when it failed to suppress the evidence which emanated from the illegal stop of the Defendant. (2) The stop of Defendant was illegal because there was no bad or erratic driving and because he was not in violation of the cruising ordinance. (Emphasis added.) 1. 75 Pa.C.S. § 3731(a)(1). 2. 75 Pa.C.S. § 1543(b). 98-1470 CRIMINAL TERM Defendant filed a motion to suppress evidence which was denied on an order dated November 24, 1998. Having been the suppression judge, we find the following facts. On March 15, 1998, at approximately 5:00 a.m., Patrolman William Miller of the Carlisle Police was on patrol. He saw defendant park his car in a parking area off the 300 block of North West Street, turn out the lights, and get out of the vehicle. The officer drove to where defendant was standing and got out of his patrol car. Officer Miller had observed defendant driving in that area and wanted to see if he was lost or had a problem or needed some assistance. He testified: I had been acting as backup officer on Patrolman Kurtz's stop, which is just on the other side of the buildings from where I came into contact with Mr. Yohe. He had been observed traveling past Patrolman Kurtz's traffic stop approximately five times in a matter of just a few minutes. So I basically just -- I watched the vehicle go back into that area. I took my patrol vehicle back there, did not perform a traffic stop on Mr. Yohe. I was just stopping to see if he needed directions or had some kind of a problem. Officer Miller asked defendant if everything was okay, and if he needed assistance. He also advised him of the cruising ordinance of the Borough of Carlisle. Defendant become irate and leveled a stream of profanities at the officer. The officer smelled an odor of alcoholic beverage from defendant's breath. Defendant had slurred speech and was swaying. Sobriety tests were conducted after which defendant was arrested for driving under the influence. Defendant maintains that all of the evidence obtained by Officer Miller to support his convictions for driving under the influence and driving under suspension, DUI related, should have been suppressed because of an illegal stop. An interaction -2- 98-1470 CRIMINAL TERM between a citizen and a police officer may be classified as a mere encounter, an investigative detention, or an arrest (custodial detention). Commonwealth v. Ellis, 541 Pa. 285 (1995). A mere encounter is simply a request for information. It does not have to be "supported by any level of suspicion [and] carries no official compulsion to stop or to respond." Id. An investigative detention must be supported by reasonable suspicion, while an arrest or custodial detention must be supported by probable cause. Id. The fallacy in defendant's position is that Officer Miller never stopped him. The officer never activated his patrol vehicle lights or motioned for defendant to stop his vehicle. It was after defendant parked on his own accord and got out of his car, that Officer Miller drove up and inquired, in light of the fact that defendant had just been observed passing a single location approximately five times at 5:00 a.m., as to whether he needed any assistance.3 That was a mere encounter. The evidence obtained by Officer Miller as to defendant's intoxication and iicense suspension was discovered after he was legally in a position to observe defendant and was not the result of an investigatory stop of defendant's vehicle. Accordingly, defendant's motion to suppress evidence was properly denied by the order of November 24, 1998. 3. Office Miller also advised defendant of the Carlisle cruising ordinance although defendant had not violated that statute. The ordinance No. 1508 which is at Chapter 103 of the Carlisle Code prohibits driving a motor vehicle in a street past a traffic control point designed by a police officer in a designed area three or more times within any two hour period from 9:30 p.m. to 4:00 a.m. This incident occurred at 5:00 a.m. -3- 98-1470 CRIMINAL TERM (DATE) David Freed, Esquire Jaime Keating, Esquire For the Commonwealth Edga~B. Bayl~"y, J. ~ Ellen K. Barry, Esquire For Defendant :saa -4-