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HomeMy WebLinkAbout95-0747 CriminalCOMMONWEALTH V® HAROLD RAYMOND FAHNESTOCK IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-0747 CRIMINAL TERM CHARGE: DUI IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION FOR RELIEF Oler, J., August 7, 1996. In this criminal case, Defendant was charged with driving under the influence. Prior to trial, Defendant filed an omnibus pretrial motion fOr relief requesting dismissal of the prosecution and suppression of evidence. A hearing on Defendant's motion was held by the writer of this opinion on November 27, 1995. At the hearing, Defendant's counsel requested dismissal of the prosecution on the basis of a delay in the filing of %he complaint,~ and dismissal of the prosecution and suppression of a blood test result on the basis of an improper investigatory stop.2 Following the hearing, Defendant's omnibus pretrial motion was denied.3 A bench trial was held in the case before the Honorable Kevin A. Hess on April 29, 1996. The Defendant was found guilty of driving under the influence in violation of Sections 3731(a)(4) and x See Pa. R. Crim. P. 102(c) [complaint to be filed within five days of defendant's release under Pa. R. Crim. P. 102(b)]. 2 N.T. 39-43, Hearing, November 27, 1995 (hereinafter N.T. ). Order of Court, November 27, 1995 (Oler, J.). NO. 95-0747 CRIMINAL TERM 3731(a)(5) of the Vehicle Code.4 Judge Hess imposed the mandatory minimum sentence appplicable to second offenders on June 4, 1996.s On June 10, 1996, Defendant filed a post-sentence motion, challenging the ruling on his omnibus pretrial motion.6 In his brief in support of the post-sentence motion, Defendant states the issue being pursued as follows: Whether the police officer in stopping and arresting Harold R. Fahnestock violated the 1983 enactment of 75 PA. C.S.A. §6308(B) in that the officer did not have sufficient articulable and reasonable grounds to suspect a violation of the Motor Vehicle Code?? Order of Court, APril 29, 1996. 5 Order of Court, June 4, 1996; see Presentence Investigation Report, May 15, 1996. The offense was a second offense for mandatory sentencing purposes and a third offense overall. Id. 6 Defendant's Motions for Post Sentencing Relief, filed June 10, 1996. ? Brief on Behalf of Defendant, Harold Raymond Fahnestock, in Support of Motions For Post-Trial Relief, at 4 (filed July 15, 1996). Defendant has understandably not continued to argue the issue of dismissal of the prosecution on the basis of a delayed filing of the complaint, in view of the absence of any prejudice resulting from the delay. See N.T. 41-43; Commonwealth v. Talarigo, 366 Pa. Super. 231, 530 A.2d 1375 (1987); Pa. R. Crim. P. 150. 2 NO. 95-0747 CRIMINAL TERM STATEMENT OF FACTS Shortly after midnight8 on Wednesday, October 19, 1994, Pennsylvania State Trooper Leonard G. Lander, Jr., and a trooper by the name of Eisenhart were on routine patrol in a marked police car on State Route 641, in West Pennsboro Township, Cumberland County, Pennsylvania.~ The troopers' vehicle was proceeding west when they encountered Defendant's Chevrolet pick-up truck traveling in front of the patrol vehicle.~° The road was a basically straight, two-lane, east/west highway,1~ with a double-yellow center line and white berm, or fog, side lines.~2 Defendant's lane was nine feet wide,13 and his truck was seven and a half feet wide.~4 8 N.T. 13, 29. N.T. 4, 6-7, 14. ~o N.T. 7. 1~ N.T. 14-15. 12 N.T. 7, 13-14. ~4 N.T. 29. ~3 N.T. 33. NO. 95-0747 CRIMINAL TERM Over the course of a mile or mile and a half,~ Defendant's truck veered over the center line three times and over the fog line three times.~6 Trooper Lander recalled no similar difficulty on his part in remaining in his lane,~7 and the court was unable to accept' Defendant's attribution of what appeared to be weaving on his part~8 to intentional driving techniques related to poor macadam conditions.~9 Based upon his observation of Defendant's erratic driving, Trooper Lander concluded--reasonably, in the court's view--that Defendant might be operating the vehicle under the influence2° and proceeded to make a traffic stop, at 12:14 a.m.2~ The trooper ~s N.T. 16. ~6 N.T. 7, 17. ~? N.T. 8. ~9 N.T. 31-33. The trooper, for instance, did not recall any particular profusion of potholes. N.T. 8. 20 See also Act of June 17, 1976. §3309(1) (driving within single lane). P.L. 162, §1, 75 Pa. C.S. ~ N.T. 8, 13. NO. 95-0747 CRIMINAL TERM approached the truck and obtained Defendant's driver's license and vehicle registration.22 Defendant's speech was slurred, he emitted a strong odor of an alcoholic beverage, and he said that he had been drinking.23 He failed to satisfactorily perform the walk-and-turn field sobriety test, in that he deviated twice from a straight line and did not turn in conformity with the trooper's instructions.24 He also was unsuccessful in performing the finger-to-nose test.2s Defendant was blaced under arrest and transported to the Carlisle Hospital for a blood test.2~ The sample was drawn at 12:50 a.m. and yielded a BAC test result of .17%.2? 22 N.T. 8. 23 N.T. 8-9, 12. 24 N.T. 24. The trooper conceded that the line in question was an imaginary one and that the recommended procedure, where conditions permitted, was to use a visible line. N.T. 23. Defendant was 56 years old at the time of the incident, and the trooper testified that he was aware that a factor to be considered in evaluating one's performance on the walk-and-turn test was whether he or she was over 55. N.T. 23. 2s N.T. 9, 23. 26 N.T. 10. 27 N.T. 13. 5 NO. 95-0747 CRIMINAL TERM DISCUSSION As a general rule, the proper remedy for an unlawful detention in a criminal matter is the suppression of evidence resulting from the illegality, rather than a dismissal of the prosecution and discharge of the defendant.28 To the extent' that Defendant's assignment of error herein is premised upon the court's refusal to dismiss the prosecution because of an illegal detention, the inappropriateness of the remedy sought would appear to be dispositive of the issue being pursued. To the extent that the assignment of error is premised upon the court's refusal to suppress evidence because of the allegedly illegal detention, a review of the law regarding traffic stops is necessary. SeCtion 6308(b) pertinent part, as follows: Whenever a of the Vehicle Code provides, in police officer ... has articulable and reasonable grounds to suspect a violation of [the Vehicle Code], he may stop a vehicle, upon request or sighal, for the purpose of checking the vehicle's registra- tion, 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 28 Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61 (1994), cert. denied, U.S. , 115 S.Ct 1317, 131 L. Ed. 2d 198 (1995); Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v. Barndt, No. 94-0247 Criminal Term (Cumber- land Co., July 12, 1994). NO. 95-0747 CRIMINAL TERM reasonably believe to be necessary to enforce the provisions of [the Vehicle Code].29 The standard to be applied in considering the legality of a traffic stop for a suspected Vehicle Code violation (such as driving under the influence3°) is one of "articulable and reasonable grounds to suspect.''3~ In driving under the influence cases, erratic driving has been a common basis upon which lawful traffic stops have been predicated.32 A pattern of laqe deviations may properly be characterized as "erratic driving" in appropriate circumstances.33 In the present case, the Defendant's pattern of weaving to such an extent that he Act of June 17, 1976, P.L. 162. §1, as amended, 75 Pa. C.S. ~6308(b). See id., 75 Pa. C.S. §3731. 3~ Commonwealth v. Hamilton, Pa. 915, 918 (1996); Commonwealth v. Farrell, __, 672 A.2d 324, 326 (1996). , , 673 A.2d Pa. Super. , 32 See. e.g., Commonwealth v. Gommer, 445 Pa. Super. 571, 665 A.2d 1269 (1995); Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Commonwealth v. Lymph, 372 Pa. Super. 97, 538 A.2d 1368 (1988). 33 See, e.g., Commonwealth v. Lymph, 372 Pa. Super. 97, 100, 538 A.2d 1368, 1370 (1988). Obviously, the matter is one of degree; not every minor variance from one's lane corridor would justify a traffic stop. See, e.q., Commonwealth v. Whitmyer, Pa. , 668 A.2d 1113 (1995); Commonwealth v. Malone, 19 Pa. D. & C.4th 41 (Cumberland Co. 1993)(Bayley, J.). NO. 95-0747 CRIMINAL TERM crossed either the center line or the fog line a total of six times within a mile or mile and a half on a straight road represented, in the court's view, sufficiently erratic driving to constitute an articulable and reasonable~ factual basis for Trooper Lander to suspect a violation of the Vehicle Code in the form of driving under the influence. For this reason, the court declined to grant Defendant's motiOn to suppress on the ground that the investigatory stop was unlawful.34 The Honorable Kevin A. Hess Michael S. Schwoyer, Esq. Chief Deputy District Attorney For the Commonwealth Arthur R. Dils, Esq. Suite L1 ~ 101 $. Second ~treet Harrisburg, PA 17101 For the Defendant :js 34 The subsequent arrest of Defendant would appear to have been more than justified in terms of probable cause by Defendant's erratic driving, slurred speech, emission of a strong odor of an alcoholic beverage, admission of alcohol consumption, and unsatisfactory performances in field sobriety tests. 8