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HomeMy WebLinkAbout01-1344 CRIMINALCOMMONWEALTH STEVEN MICHAEL FRY IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1344 CRIMINAL TERM OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., December 10, 2001 :-- On October 4, 2001, defendant was found guilty at a bench trial of driving under the influence of the alcohol to a degree that rendered him incapable of safe driving,1 driving while his operating privilege was suspended,2 following too closely,3 and driving while he was an habitual offender.4 On November 6, 2001, defendant was sentenced to pay a fine and undergo a term of imprisonment on the count of driving under the influence. He was sentenced to pay fines on the three other counts. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, he avers that "The Court erred in denying Defendant's Motion to Suppress Evidence as a result of a stop on June 8, 2001 ." 1 75 Pa.C.S. § 3731 (a)(1). 2 75 Pa.C.S. § 1543(a). 3 75 Pa.C.S. § 3310. 4 75 Pa.C.S. § 6503.(1). 01-1344 CRIMINAL TERM Defendant's motion to suppress evidence was denied by an order following a hearing on October 4, 2001. Based on the evidence, we find the following facts. On June 8, 2001, shortly after 2:00 a.m., Officer Jeffrey Kurtz, of the Borough of Carlisle Police, was on patrol traveling north on South Hanover Street in the Borough. Officer Kurtz saw a tractor-trailer coming toward him from the opposite direction. The truck was just south of the intersection of Ridge Street and South Hanover Street. Officer Kurtz saw the headlights of a vehicle behind the trailer weave toward the left, although the vehicle did not cross the double yellow line dividing the lanes of South Hanover Street. The officer passed the truck, and saw that the vehicle to its rear was "very close" to the back of the trailer. The officer turned around at Ridge Street, and followed the truck and vehicle south on South Hanover Street. The vehicle behind the truck was a Geo Metro. As the truck and Geo Metro passed Willow Street the speed limit on South Hanover Street increased from 25 miles per hour to 35 miles per hour. The Geo Metro was traveling consistently close to the back of the trailer. The officer testified that he doubted that the driver of the truck could see the little car behind him. A light turned red at Noble Street. The truck and the Geo Metro slowed and the officer pulled along side of the Geo Metro and saw that it was approximately ten feet behind the trailer. The Geo Metro was approximately twelve feet long. Officer Kurtz fell back and got behind the truck and the Geo Metro again as they stopped at the red light. When the light turned green, the truck and the Geo Metro started up, and the car stayed close behind the trailer. The truck and the Metro continued in this manner, and went under -2- 01-1344 CRIMINAL TERM the overpass of the southbound and northbound lanes of Interstate 81. The truck and the Geo Metro both went left onto the northbound entrance ramp on Interstate 81. As the Geo Metro started to go up the northbound ramp, Officer Kurtz activated his emergency lights, and the car ultimately stopped. The officer had observed the vehicle for about a half a mile. The driver was defendant, Steven Fry? DISCUSSION Defendant argues that Officer Kurtz did not have probable cause to believe that he was committing the summary offense of following too closely in violation of the Vehicle Code at 75 Pa.C.S. Section 3310(a). If there was probable cause, the stop Section 3310(a) was lawful and the motion to suppress evidence was properly denied. provides: General rule.--The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway. In Commonwealth v. Phinn, 761 A.2d 176 (Pa. Super. 2000), a state trooper stopped a vehicle for following too closely. A search of the vehicle conducted at the scene of the stop resulted in the seizure of marijuana. The defendant sought to ~ Six photographs, described by Officer Kurtz, were admitted into evidence. The photographs include a tractor-trailer, a vehicle, and a tape measure. The officer had these photographs taken using a tractor-trailer similar in size to the one that he had observed defendant driving behind on June 8, 2001. Officer Kurtz testified that the measurement of the distance as shown in the photographs reflects the distance of ten feet that he saw defendant consistently drive behind the tractor-trailer on South Hanover Street. -3- 01-1344 CRIMINAL TERM suppress all evidence gained after the vehicle stop, arguing that the stop was unlawful. The trial court suppressed the evidence. As to the legality of the stop, the Superior Court of Pennsylvania concluded: It was established that appellee's vehicle was following the vehicle ahead of it in bumper to bumper fashion. We disagree however, with the [trial] court's legal conclusion that [the Pennsylvania state troopers] observation thereof, standing alone, was insufficient to justify his stop of appellee's vehicle for a violation of Section 3310. We find that [the trooper] had reasonable suspicion to believe a violation of Section 3310 had occurred when he observed appellee's Accord traveling less than a motor-cycle distance behind a tractor-trailer on Interstate 80 where the vehicles' respective rates of speed were at or near the speed limit for that highway. The evidence clearly bespeaks a hazard within the contemplation of Section 3310. Thus, we conclude that the initial stop of appellee's vehicle was lawful. In Commonwealth v. Bybel, 779 A.2d 523 (Pa. Super. 2001), the facts were: On April 25, 2000, Trooper Michael W. Piccini of the Pennsylvania State Police was parked fifteen feet from Interstate 80 as he monitored the speed of westbound traffic with radar. At about eight p.m., he saw Appellant's white Honda coupe following two to three feet behind a tractor trailer in the passing lane. Though both vehicles were travelling the posted sixty-five mile per hour speed limit in good driving conditions, Trooper Piccini stopped Appellant and cited her under Section 3310(a) for travelling too closely behind the tractor trailer. On appeal following a conviction for violating Section 3310(a) of the Vehicle Code, the Superior Court of Pennsylvania affirmed the judgment of sentence, concluding: [t]he Commonwealth presented evidence that appellant not only tailgated the tractor trailer, but also compromised safety on the Interstate in the process. Even with the good driving conditions that night, Trooper Piccini testified, Appellant could not have avoided a collision if the tractor trailer had cause to brake suddenly, Therefore, we find no error with the trial court's reliance on Trooper Piccini's testimony to convict Appellant under Section 3310(a), for the -4- 01-1344 CRIMINAL TERM evidence sufficiently established that Appellant defied reason and prudence when she followed so very closely at such a high rate of speed. (Emphasis added.) In Commonwealth v. Kemp, (01-0666), decided by this court on September 6, 2001, the facts were: On February 15, 2001, Trooper Brett Hanlon of the Pennsylvania State Police was operating a radar unit from a marked patrol car on Interstate 81 in Cumberland County. He was checking northbound traffic. He received a radio call from a trooper, who was traveling southbound, who told him to clock a particular car that he had just seen "flying" in the northbound lanes. Trooper Hanlon kept his eye out for the car, and when it approached it immediately slowed down, a right turn signal came on, and it moved quickly into the right hand lane between two cars. Trooper Hanlon testified that "it was somewhat - I considered it a risky maneuver based on his speed and the traffic conditions.''5 Trooper Hanlon testified that there was a tractor-trailer in the vicinity, and the vehicles around him on his radar unit were all going the speed limit, thus he was unable to obtain a radar clock. Notwithstanding, he followed the car. Trooper Hanlon testified that the car was "following another vehicle at a distance that was too close, in considering what he did in front of me, based on that and also based on him following the vehicle in front of him too close, I made a traffic stop." (One footnote omitted.) 5 Trooper Hanlon testified that he observed a weight transfer in the vehicle after the driver had obviously seen him. We concluded: [u]nlike the facts in Phinn, there is no evidence (facts) to support the conclusion of Trooper Hanlon that defendant's car was "following another vehicle at a distance that was too close." Defendant moved into traffic that was going the speed limit on an interstate highway. There is no testimony as to how far defendant's vehicle was behind another vehicle, and over what distance. The conclusion of Trooper Hanlon that defendant was following too closely does not satisfy the legal requirement of probable cause, i.e., articulable and reasonable grounds to believe that defendant violated a provision of the Vehicle Code, in -5- 01-1344 CRIMINAL TERM order to effectuate a lawful stop. Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995). (Emphasis added.) Unlike the facts in Kemp, in the present case defendant drove for about one-half mile while consistently, approximately ten feet to the rear of a tractor-trailer. Like the evidence in Bybel, safety was being compromised by defendant tailgating the truck. Like the evidence in Phinn, defendant driving within a car length or less behind a tractor-trailer for approximately one-half a mile bespeaks of a hazard within the contemplation of Section 3310(a) of the Vehicle Code. Notwithstanding, defendant suggests that because the speed limit on South Hanover Street where he was driving was initially only 25 miles per hour, and then rose to 35 miles per hour, that his tailgating the tractor-trailer for about one-half mile did not constitute a hazard. We disagree. As Officer Kurtz testified, he doubted that the driver of the truck could see the car behind him. While the truck and the Geo Metro was traveling slower than the speeds of the vehicles on the Interstate highways as in Bybel and Phinn, nevertheless, defendant's conduct was still hazardous. Accordingly, the stop of defendant's car by Officer Kurtz was lawful. The motion of defendant to suppress evidence was properly denied. (Date) Edgar B. Bayley, J. -6- 01-1344 CRIMINAL TERM Jonathan Birbeck, Esquire For the Commonwealth Jessica B. Rhoades, Esquire For Defendant :sss -7-