HomeMy WebLinkAbout00-2555 CriminalCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
STEPHEN E. SEYMORE · NO. 00-2555 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., October 3,2001.
IN this criminal case, following a jury trial presided over by the Honorable
Edward E. Guido, Defendant was found guilty of driving under the influence of
alcohol to a degree which rendered him incapable of safe driving~ and not guilty of
driving under the influence of alcohol at a time when his blood alcohol level was
0.10% or greater] He was also found guilty by Judge Guido of driving on
roadways laned for traffic, a summary offense.3 The driving-under-the-influence
offense was his third overall,4 and he was sentenced on July 24, 2001.s
Prior to trial Defendant had filed an omnibus pretrial motion for relief6 and
a motion in limine.7 The omnibus pretrial motion was in the form of a motion to
suppress based upon an alleged lack of a lawful basis for the stop of Defendant's
vehicle, inter alia.s The motion in limine was in the form of a motion to preclude
~ See Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa.. C.S.A. 83731(a)(1) (2001 Supp.).
2 Order of Court, May 16, 2001; see Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa.
C.S.A. 83731(a)(4) (2001 Supp.); Act of June 17, 1976, P.L. 162, 81, 75 Pa. C.S.A.83309.
~ Order of Court, May 16, 2001; see Act of June 17, 1976, P.L. 162, 81, 75 Pa. C.S.A. 83309.
4 See Order of Court, June 19, 2001.
5 Order of Court, July 24, 2001. Defendant had been sentenced on the summary offense at the
time that he was found guilty by Judge Guido. Order of Court, May 16, 2001.
A postsentence motion filed by Defendant was denied by Judge Guido on August 6, 2001.
Order of Court, August 6, 2001.
6 Defendant's Omnibus Pre-Trial Motion, filed January 16, 2001.
7 Defendant's Amended Omnibus Pre-Trial Motion (Motion in Limine), filed February 5,2001.
8 Defendant's Omnibus Pre-Trial Motion, paragraphs 1-2. A second basis for suppression
contained in the motion was abandoned by Defendant at the hearing on the motion. N.T. 24,
Hearing, March 1,2001.
admission of the result of a breath test to determine the alcoholic content of his
blood on the ground that the regulation prescribing a 20-minute observation period
prior to administration of the test had not been complied with in his case.9
A hearing on the pretrial motions was held by the undersigned judge,l°
Following the hearing, the motions were denied. ~
Defendant has filed an appeal to the Pennsylvania Superior Court from the
judgment of sentence.~2 Among the issues being pursued by Defendant on appeal
are the following which pertain to the pretrial matters, as expressed in his
statement of matters complained of on appeal:
1. The trial court erred in denying the Defendant's
Omnibus Pre-Trial Motion to suppress evidence on the basis
that the police lacked probable cause to stop.
2. The trial court erred in denying the Defendant's
Omnibus Pre-Trial Motion in Limine to preclude the
admissibility of the breath test results because of their failure to
comply with 67 Pa. Code Section 77.24, specifically failure to
obey the twenty minutes of continuous and consecutive
observation prior to the test being given.
3. The trial court erred in denying the Defendant's
Omnibus Pre-Trial motion in Limine to preclude the
admissibility of the breath test results because of their failure to
comply with 67 Pa. Code Section 77.24, specifically defendant
had ingested nicorette gum within twenty minutes prior to the
test being given. ~3
This opinion, pursuant to Pennsylvania Rule of Appellate Procedure
1925(a), is written (a) in support of the denial of Defendant's omnibus pretrial
motion to suppress on the ground that his vehicle had been stopped without a
lawful basis and (b) in support of the denial of his motion in limine to preclude
9]d'
The hearing on the motions was held on February 23, 2001, and March 1, 2001.
Order of Court, March 1, 2001.
Notice of Appeal, filed August 21, 2001.
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admission of his breath test result on the ground that the regulation prescribing a
20-minute observation period had not been complied with.
STATEMENT OF FACTS
In a pretrial motion to foreclose the admission of evidence, the credibility
of the witnesses is to be determined by the court as trier-of-fact, and in that
capacity the court "is entitled to believe all, part or none of the evidence
presented." Commonwealth v. Kendall, 767 A.2d 1092, 1093 (Pa. Super. Ct.
2001).
With this principle in view, the evidence at the hearing on Defendant's
motion to suppress and motion in limine may be summarized, in pertinent part, as
follows. On Saturday, April 15, 2000, at 1:32 a.m., Patrolman Troy L. McNair of
the Lower Allen Township Police Department (Cumberland County,
Pennsylvania) was on routine patrol, in a marked police car and in full uniform. ~4
As he traveled south on Pennsylvania State Route 15, which was a four-
lane highway divided by a median strip or rail, he noticed a red Ford Explorer in
front of him in the right lane cross the white fog line with its right wheels,
intruding about a foot onto the berm, and then abruptly jerk back into its lane of
traffic.~5 As the officer continued to observe the vehicle, it traveled with wide
swerving movements within its lane, punctuated by abrupt corrections, for several
hundred yards.~6 Its right wheels then again crossed the white fog line by about a
foot before the vehicle was again jerked back into its lane of traffic.~7
~s Defendant's Concise Statement of the Matters Complained of on the Appeal, paragraphs 1-3,
filed August 24, 2001.
14 N.T. 5-6, Hearing, February 23,2001.
~5 N.T. 5, Hearing, February 23, 2001.
16 N.T. 6, Hearing, February 23, 2001.
~7 N.T. 7, Hearing, February 23, 2001.
3
Based upon his observations of the movements of the vehicle, Patrolman
McNair initiated a stop of the vehicle at 1:33 a.m.~8 Defendant was the driver.~9
Following his observation of additional indicia that Defendant was under the
influence of alcohol,2° the officer placed Defendant under arrest for driving under
the influence, at 1:43 a.m.
Defendant was handcuffed and placed in the back of the officer's patrol
car.2~ He had no access to alcohol, food or other substances on his person or in the
vehicle.~3
Patrolman NcNair secured Defendant's vehicle at 1:44 a.m.24 From 1:46
a.m., when the officer began transporting Defendant to a booking center, until the
administration of a breath test at the booking center at 2:11 a.m., Defendant was in
the personal custody and presence of the officer, and observable by him.25
According to Patrolman McNair's testimony, "[f]rom the time I left the scene at
1:46, to the time he gave his breath test.., he was in my sight at all times.''26
During the trip to the booking center, which consumed the first eight
minutes of the period from 1:46 a.m. until the administration of the breath test at
2:11 a.m.,27 Defendant was within the officer's sight by way of the vehicle's rear-
view mirror, and the officer testified that throughout this period his eyes were "on
~8 N.T. 7, Hearing, February 23, 2001.
19 N.T. 7-8, Hearing, February 23, 2001.
:0 N.T. 8-11, Hearing, February 23, 2001.
:~ N.T. 13-14, Hearing, February 23, 2001
:: N.T. 15, 20, Hearing, February 23, 2001
:3 N.T. 18, Hearing, February 23, 2001.
:4 N.T. 15, Hearing, February 23, 2001.
:5 N.T. 15-17, Hearing, February 23, 2001
:6 N.T. 16, Hearing, February 23, 2001.
:7 N.T. 23, Hearing, February 23, 2001.
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the road, on him, on the road, on him.''28 Trooper McNair testified as follows with
regard to his observation of Defendant:
THE COURT: Officer McNair, at 1:46 a.m. until the time
that the breath test was administ[ered] at 2:11 a.m., did you
perceive either visually or [au]rally any indication or sign that
the Defendant had, during that period, ingested alcoholic
beverages or other fluids, regurgitated, vomited, eaten or
smoked?
THE WITNESS: No, I observed none of those things.
THE COURT: You perceived none of them?
THE WITNESS' I perceived none of them.29
In response to questions on cross-examination, Patrolman McNair testified
with specific reference to any indications of belching or gum-chewing on the part
of Defendant as follows:
[W]hile he was in my custody, I did not hear, see or
preceive in any way that he would have belched.
·.. I did not see, observe, or have any reason to believe he
had gum in his mouth. I did not see[,] observe or have any
reason to believe that he swallowed anything during that
time.3°
From the time that Defendant entered the booking center at 1:54 a.m. until
the administration of the breath test at 2:11 a.m., he was also under the continuous
observation of Brent Boggess, a central processing agent employed by the
Cumberland County District Attorney's Office, who administered the breath test.3~
With respect to this period, Mr. Boggess corroborated the officer's testimony as to
28 N.T. 17, Hearing, February 23, 2001.
29 N.T. 40-41, Hearing, February 23, 2001.
30 N.T. 42, Hearing, February 23, 2001. Defendant testified that he had one piece of Nicorette
gum in his mouth when he left the Knights of Columbus at an unspecified time prior to his
driving, that it was in his mouth for up to twenty minutes, and that he swallowed it when he
exited the patrol car at the booking center. N.T. 15-19, Hearing, March 1, 2001.
~ N.T. 47-49, Hearing, February 23, 2001.
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the absence of eating, drinking, regurgitating, vomiting or smoking on the part of
Defendant.32
The evidence established, to the court's satisfaction, that Defendant had
been kept under observation by a police officer and/or a certified breath test
operator for at least 20 consecutive minutes immediately prior to administration of
the breath test, and that during that period Defendant had not ingested alcoholic
beverages or other fluids, regurgitated, vomited, eaten or smoked. As noted
previously, following the hearing the court denied Defendant's motion to suppress
based on the contention that the stop of Defendant's vehicle was unlawful and
Defendant's motion in limine to preclude admission of the breath test based on the
contention that the regulation prescribing a 20-minute observation period prior to
administration of the test had been violated.33
DISCUSSION
Burden of proof On a motion to suppress, the burden is on the
Commonwealth to establish by a preponderance of the evidence that the evidence
challenged in the motion is admissible. Pa. R. Crim. P. 581(H); Commonwealth v.
DeWitt, 530 Pa. 299, 301,608 A.2d 1030, 1031 (1992); Commonwealth v. Benton,
440 Pa. Super. 441, 444, 655 A.2d 1030, 1032 (1995). The burden of proof is
similarly on the Commonwealth with respect to a motion to exclude results of a
breath test on the ground that the administration of the test was not in accordance
with regulations. See Commonwealth v. Townsend, 418 Pa. Super. 48, 50, 613
A.2d 564, 565 (1992), appeal denied, 533 Pa. 599, 617 A.2d 1274 (1992);
Commonwealth v. Thill, 417 Pa. Super. 485, 492, 612 A.2d 1043, 1046-47 (1992).
Stop of Defendant's vehicle. For the stop of a motor vehicle for a violation
of the Vehicle Code to be valid, the police officer must have reasonable and
articulable grounds to believe that a violation of the Code has occurred. Act of
N.T. 50, Hearing, February 23, 2001.
Order of Court, March 2, 2001.
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June 17, 1976, P.L. 162, 91, as amended, 75 Pa. C.S.A. 96308(a) (2001 Supp.);
Commonwealth v. McElroy, 428 Pa. Super. 69, 76, 630 A.2d 35, 39 (1993), appeal
denied, 543 Pa. 729, 673 A.2d 335 (1996). The police officer must be able to
articulate the specific facts that led him or her to believe that a provision of the
Vehicle Code was violated and such facts must reasonably support such a belief.
Commonwealth v. FFhitmyer, 542 Pa. 545, 550-51,668 A.2d 1113, 1116 (1995).
Under Section 3309(1) of the Vehicle Code, it is provided that "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." Act of June 17, 1976, P.L. 162, 91, 75 Pa. C.S.A. 93309(1).
Under Section 373 l(a) of the Vehicle Code, it is provided that "[a] person
shall not drive.., a vehicle... [w]hile under the influence of alcohol to a degree
which renders the person incapable of safe driving... [or] [w]hile the amount of
alcohol by weight in the blood of... an adult is 0.10% or greater." Act of June
17, 1976, P.L. 162, 91, as amended, 75 Pa. C.S.A. 93731(a)(1), (4)(i). Indicia of
driving under the influence include erratic driving, such as weaving within and
without one's lane and abrupt movements. See Commonwealth v. Baumgardner,
767 A.2d 1065, 1067 (Pa. Super. Ct. 2001); Commonwealth v. Howard, 762 A.2d
360 (Pa. Super. Ct. 2000). See generally, Commonwealth v. Graham, 703 A.2d
510 (Pa. Super. Ct. 1997); Commonwealth v. Kovaleski, 50 Cumberland L.J. 232
(2001), aff'd, No. 622 MDA 2001 (Pa. Super. Ct., September 17, 2001). In such
cases, it has been said that, "[a]t the very least, the police officer properly [stops]
the vehicle out of concern for [the defendant's] own safety based on his erratic
driving." Howard, 762 A.2d at 362 (quoting Commonwealth v. Masters, 737 A.2d
1229, 1232 (Pa. Super. Ct. 1999)).
In the present case, specific and articulable facts which warranted a
reasonable belief on the part of Trooper McNair that a violation of the Vehicle
Code had occurred consisted of Defendant's weaving within his lane of traffic, his
significant deviations on two occasions over the fog line, and his abrupt
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corrections of the movement of his vehicle, within a one-minute period, as
described above. Based upon these facts, the court was of the view that a lawful
basis for the stop of Defendant's vehicle existed and that suppression of evidence
premised upon the lack of such a basis would not have been justified.
Regulation prescribing 20-minute observation period prior to
administration of breath test. Section 77.24 of the Pennsylvania Code, relating to
breath test procedures, provides in pertinent part as follows:
(a) Observation. The person to be tested with breath test
equipment shall be kept under observation by a police officer
or certified breath test operator for at least 20 consecutive
minutes immediately prior to administration of the first
alcohol breath test given to the person, during which time the
person may not have ingested alcoholic beverages or other
fluids, regurgitated, vomited, eaten or smoked. Custody of
the person may be transferred to another officer or certified
breath test operator during the 20 consecutive minutes or
longer period as long as the person to be tested is under
observation for at least 20 consecutive minutes prior to initial
administration of the alcohol breath test.
67 Pa. Code §77.24 (2001). As a general rule, the provisions of the Statutory
Construction Act apply to regulations in the Pennsylvania Code. Act of December
6, 1972, P.L. 1339, §3, 1 Pa. C.S.A. §lS02(a)(1)(ii). Under the Act, words and
phrases are, in general, to be construed according to their common meanings. Act
of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S.A. §1903(a). The intent of the
drafter may, in appropriate cases, be determined from such factors as the mischief
to be remedied, the object to be attained, and the consequences of a particular
interpretation. Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S.A. §1921(c)(3),
(4), (6). A presumption exists that a result which is "absurd... or unreasonable"
was not intended and a presumption exists that the regulation was intended "to
favor the public interest as against any private interest." Act of December 6, 1972,
P.L. 1339, §3, 1 Pa. C.S.A. §1921(1)(5).
In this context, it may also be noted that the critical nature of BAC test
result evidence in a prosecution under Section 3731(a)(4) of the Vehicle Code
(driving while one's BAC level is .10% or greater) is not present where the
provision involved is, as in Defendant's case, Section 3731(a)(1) (driving under
the influence of alcohol to a degree which renders the person incapable of safe
driving). See Commonwealth v. Zugay, 745 A.2d 639, 646-48 (Pa. Super. Ct.
2000); Commonwealth v. Phillips, 700 A.2d 1281, 1288 (Pa. Super. Ct. 1997).
In the present case, a number of factors led to the court's conclusion that
the regulation requiring a 20-minute observation period prior to administration of
a breath test had been complied with. These included the facts that for a period of
25 consecutive minutes prior to the administration of the breath test, from 1:46
a.m. until 2:11 a.m., Defendant was in the immediate presence of the arresting
police officer, that for the first eight minutes of that period he was in a vehicle
within a few inches or feet of the officer, that the officer was able to and did
observe Defendant by way of the vehicle's rearview mirror during the ride to the
booking center, that Defendant was handcuffed and without access to food, drink,
cigarettes or other items, that during the final 17 minutes of the period Defendant
was also under the observation of the agent who administered the breath test, and
that at no time during the 25-minute period did Defendant evidence any ingestion
of alcoholic beverages or other fluids, regurgitation, vomiting, eating or smoking.
In reaching this conclusion, the court declined to adopt an interpretation of
the regulation in question which would have construed the words "kept under
observation" to mean
have been consistent
regulations prescribed
issue, as it developed,
BAC level had not,
"stared continuously at." Such a construction would not
with the more practical approach to the meaning of
by the rules of construction recited above. In addition, this
was largely mooted by the jury's finding that Defendant's
in fact, been proven to have been over the legal limit.
9
BY THE COURT,
J. Wesley Oler, Jr., J.
Daniel Sodus, Esq.
Assistant District Attorney
Patrick F. Lauer, Jr., Esq.
Attorney for Defendant
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