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HomeMy WebLinkAboutCP-21-CR-0521-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JOHN WALTERS : CP-21-CR-0521-2009 MEMORANDUM OPINION AND ORDER OF COURT Masland, J., July 21, 2010:-- On June 10, 2010, the court heard testimony on an oral motion to suppress evidence which was incorporated into a contemporaneous bench trial. Following the hearing/trial, the parties were granted an opportunity to brief the issues involved in the motion to suppress. Those issues are: 1. Did Officer Claeys possess probable cause to stop the defendant’s vehicle? and 2. Was the defendant traveling on a trafficway as defined by 75 Pa.C.S. Section 102? FACTUAL BACKGROUND The affiant, Officer Matthew Claeys, testified that in his eight years with the Lower Allen Township Police Department he had participated in approximately 100 investigations involving intoxicated persons and assisted in numerous others. On December 28, 2008, between 1 and 2 a.m., Officer Claeys was traveling west on Simpson Ferry Road following another vehicle when he noticed headlights traveling at a high rate of speed on an adjacent undetermined roadway (“roadway”) that ran perpendicular to Simpson Ferry Road. As the CP-21-CR-0521-2009 vehicle in front of the patrol vehicle passed the “T” intersection with the roadway, the officer slowed down because he believed the vehicle was traveling too fast to stop at the intersection, especially on a wet road surface. The vehicle in question slid to a stop inches before entering onto Simpson Ferry Road, with its wheels locking as the driver applied the brakes. Having stopped to avoid a possible collision, Officer Claeys flashed his high beams to allow the other vehicle to pull out of the roadway. After the vehicle had traveled a short distance on Simpson Ferry Road, the Officer Claeys activated his overhead lights in order to pull the driver over because of the careless driving he had observed. In the short distance before the car was pulled over on Simpson Ferry Road the officer did not observe any other violations of the Motor Vehicle Code. At trial, the officer described the defendant’s driving as careless because of both its speed of travel and the manner in which it stopped. The officer testified on direct examination that he believed the roadway in question was “open to the public via right or custom.” He also noted that the roadway, which was “mostly gravel” except for the section closest to Simpson Ferry Road, led to a business with several oil tanks located thereon. On cross- examination Office Claeys was unable to state whether the roadway was named or if it had a stop sign or thick white stop line. Nor, was he able to recall if there was a no trespassing sign on the property. The testimony with respect to matters that occurred subsequent to the suppression issue revealed that the defendant was the driver of the vehicle in -2- CP-21-CR-0521-2009 question; the defendant’s breath had a strong odor of alcohol and his eyes were bloodshot; the defendant was unable to properly perform three standardized field sobriety tests and following arrest, a test of his blood alcohol content within two hours of the stop yielded a result of .121 percent. DISCUSSION The threshold issue is whether Officer Claeys had probable cause or a reasonable basis for stopping the defendant’s vehicle. It is clear that an officer need not establish an actual violation of the Motor Vehicle Code prior to stopping a vehicle; however, in the absence of such a violation the officer must provide a reasonable basis for his belief that the Code was violated in order to validate the stop. Commonwealth v. Muhammed, 992 A.2d 897, 900 (Pa. Super. 2010). As noted above, Officer Claeys testified that the defendant’s vehicle was traveling at a high rate of speed and was barely able to stop prior to entering Simpson Ferry Road. The court finds that even if Officer Claeys did not have probable cause to stop the defendant for careless driving, under 75 Pa.C.S. Section 3714, he had reasonable suspicion to conduct an investigatory stop pursuant to Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008). Therefore, the court is satisfied that Officer Claeys appropriately stopped the defendant’s vehicle after observing careless driving behavior. Defendant claims that regardless of the basis for the stop, his vehicle was not on a trafficway, which is defined in 75 Pa.C.S. §102 as “the entire width between property lines or other boundary lines of every way or place of which -3- CP-21-CR-0521-2009 any part is open to the public for purposes of vehicular travel as a matter of right or custom.” Officer Claeys echoed the statutory language in stating his belief that the roadway was open to the public as a matter of right or custom; however, there were scant additional details to establish that this roadway is a trafficway. During a non-jury trial, the court is the sole arbiter of the weight and credibility of the evidence. So long as the court's factual determinations are supported by competent evidence, they are unassailable on appeal. McShea v. City of Philadelphia, 995 A.2d 334, 338 (Pa. 2010). Here, Officer Claeys testified, without objection, that he believed the roadway in question is open to the public as a matter of right or custom. As such, it constitutes a trafficway under the Motor Vehicle Code. The Officer's credible testimony was corroborated by his eight years of experience with the Lower Allen Township Police Department where his duties included patrolling the area the roadway in question is located. Based on this evidence, the court concludes the roadway is, in fact, a trafficway. 75 Pa. C.S. §102. Defendant's arguments to the contrary are unpersuasive. Essentially, defendant identifies what he would consider evidence necessary to prove whether the roadway is a trafficway; evidence the Commonwealth did not produce at trial. So framed, defendant's argument goes to the weight of the evidence and must fail. To reiterate, by defendant's own motion, this matter was conducted as a non-jury trial. In so doing, defendant empowered the court to weigh the evidence as it sees fit. In the exercise of this duty, the court is -4- CP-21-CR-0521-2009 persuaded beyond a reasonable doubt that the roadway is a trafficway. That is not to say that the Commonwealth presented overwhelming evidence on this question. Both parties speculate as to what the few facts demonstrate. Defendant implies that because Officer Claeys did not know of any “private road” signs posted to close the roadway, the court should assume that is private. Then we are asked to assume that the lack of evidence on the number of vehicles using the roadway means that there was little if any traffic. Together, these negative assumptions are offered to create a positive distinction between the instant case and Commonwealth v. Cameron, 668 A. 2d 1163 (Pa. Super. 1995), wherein a parking lot with restrictive signage and with a significant amount of traffic was held to be a trafficway under Section 102. Similarly, the Commonwealth suggests that because Officer Claeys testified about a business with oil tanks, we should assume there is a large parking lot with a high volume of vehicular traffic. The defendant asks us to assume that the tanks are huge and their mere presence in post 9/11 era renders the roadway verboten to the public. Interestingly, both briefs argue the significance of Commonwealth v. Aircraft Service International Group, 917 A.2d 328, in which the roadway in question was a fenced-in service road of a Philadelphia airport. Defendant’s arguments might be persuasive if there were a few more tangible facts to back them up as opposed to a mere absence of facts. To be sure, the burden is squarely on the Commonwealth to prove its case beyond a -5- CP-21-CR-0521-2009 reasonable doubt, and the defendant is free to speculate as to what may constitute such doubt. Nevertheless, all speculation aside, the court bases its decision on the scant but sufficient evidence provided by an officer who was credible, qualified, experienced, and sincere. Defendant failed to present any persuasive evidence to rebut this conclusion. Therefore, Officer Claeys’ testimony that the roadway was open to the public coupled with his knowledge that it contained a business with several oil tanks, results in the court’s finding that this roadway qualifies as a trafficway under 75 Pa.C.S Section 102. Arguably, the court could have avoided the issue given the fact that defendant’s vehicle pulled onto Simpson Ferry Road, which is unquestionably a trafficway; however that would only have resolved the question of the DUI and not the summary offense of careless driving. Had the careless driving exhibited by the defendant occurred on a non-trafficway, the fact that the vehicle drove on Simpson Ferry Road before being stopped would have sufficed for the purposes of proving an essential element of the crime of driving under the influence under 75 Pa.C.S. Section 3802. Finally, defendant appears to argue that when Officer Claeys flashed his headlights to permit the defendant to proceed from the roadway onto Simpson Ferry Road the officer’s conduct was akin to entrapment. The court notes that the flashing of headlights is a common occurrence at intersections where two vehicles are stopped, even where one (in the case the officer’s vehicle) need not have stopped. If the court had found that the roadway was not a traffic way, this -6- CP-21-CR-0521-2009 argument might provide some academic interest; however, our ruling that the defendant had driven on a traffic way before proceeding onto Simpson Ferry Road, renders this argument moot. Accordingly, the court issues the following order: ORDER OF COURT AND NOW, this day of July, 2010, following a hearing on defendant’s oral motion to suppress and a non-jury trial, the court denies the motion and finds the defendant guilty of Count 1, driving under the influence, high rate, Count 2, driving under the influence, general impairment, and Count 3, careless driving. The defendant is directed to appear for sentencing on Tuesday, September 7, 2010, at 1:30 p.m. in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Michael O. Palermo, Jr., Esquire For Defendant John Walters 31 Eastwick Lane Carlisle, PA 17015 Court Administrator :sal -7- CP-21-CR-0521-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JOHN WALTERS : CP-21-CR-0521-2009 ORDER OF COURT AND NOW, this day of July, 2010, following a hearing on defendant’s oral motion to suppress and a non-jury trial, the court denies the motion and finds the defendant guilty of Count 1, driving under the influence, high rate, Count 2, driving under the influence, general impairment, and Count 3, careless driving. The defendant is directed to appear for sentencing on Tuesday, September 7, 2010, at 1:30 p.m. in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Michael O. Palermo, Jr., Esquire For Defendant John Walters 31 Eastwick Lane Carlisle, PA 17015 Court Administrator :sal -8- CP-21-CR-0521-2009 -9-