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HomeMy WebLinkAbout94-0247 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 94-0247 CRIMINAL TERM CHRISTINA M. BARNDT : APPEAL FROM SUMMARY IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J.; July 12, 1994 In the present criminal case, Defendant appealed to this Court from summary convictions by a district justice for a violation of the Crimes Code provision respecting purchase, consumption, possession or transportation of liquor or malt or brewed beverages by a minor,~ and a violation of the Vehicle Code provision respecting driving on roadways laned for traffic.2 A trial de novo, which was not preceded by any pretrial motions, was held before the writer of this Opinion on May 3, 1994, at the conclusion of which Defendant was found guilty on both charges.3 She was sentenced to pay a fine of $25 on the Crimes Code violation and a fine of $25 on the Vehicle Code violation.4 On June 3, 1994, Defendant filed a notice of appeal to the Superior Court from the judgment of sentence. Pursuant to an Order of this court on June 10, 1994,5 she filed a Statement of Matters ~ Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S. ~6308(a) (1994 Supp.). Act of June 17, 1976, P.L. 162, ~1, 75 Pa. C.S. ~3309(1). Order of Court, In re Verdict, May 3, 1994. Order of Court, In re Sentence, May 3, 1994. Costs of prosecution, a CAT Fund assessment of $30, and an Emergency Medical Services Fund assessment of $10 were also imposed. Id. 5 See Pa. R.A.P. 1925. 94-0247 Criminal Term Complained of on Appeal, on June 13, 1994. In pertinent part, the statement sets forth the basis of the appeal as follows: 1. The authority of a police officer to arrest without a warrant does not extend to the summary offense of underage drinking under circumstances where the appellant did not exhibit disorderly conduct, a breach of the peace, drunkenness or any other irregular behavior. Therefore, the arrest in this case was unlawful, and the trial court erred by considering any evidence as a result of the unlawful detention. With no evidence to consider, the Defendant should have been found not guilty. 2. In order to stop a single vehicle for a summary violation of the vehicle code, the officer must have probable cause, based upon specific, articulable facts, that the vehicle or the driver is in violation of the vehicle code. Because 75 Pa. C.S.A. ~3309, Driving on Roadways Laned For Traffic, is a prohibition, and not a criminal offense, not only was the original stop improper, but also the Court erred in finding the Defendant guilty of that offense.6 The gravamen of the appeal appears to be that Defendant should be discharged as to both offenses because no admissible evidence existed against her, and as to the Vehicle Code violation in particular because the statutory provision in question is merely directory. The basis for the position that the evidence was inadmissible appears to be that Defendant's detention and arrest were unlawful, and the basis for the position that the detention and arrest were unlawful appears to be (1) that a warrantless Statement of Matters Complained of on Appeal. 2 94-0247 Criminal Term arrest may not be made for a violation of the provision of the Crimes Code respecting purchase, consumption, possession or transportation of liquor or malt or brewed beverages by a minor and (2) that not even a stop may be made for violation of a directory provision of the Vehicle Code, such as that relating to driving on roadways laned for traffic. This Opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925. ~tatement of Facts Evidence adduced at trial tended to establish the following facts: At approximately 1:15 a.m. on November 8, 1993, Officer David Herb of the Mid-Cumberland Valley Regional Police Department, while on routine patrol, observed a white Dodge sedan sitting in the middle of the roadway over the center line on North Queen Street, Shippensburg, Cumberland County, Pennsylvania. As Officer Herb approached, the vehicle pulled away, still straddling the center line, and turned left onto Richard Avenue. While progressing along Richard Avenue, the vehicle crossed the center line twice. Officer Herb stopped the vehicle at Richard Avenue and North Prince Street. Upon approaching the vehicle, Officer Herb perceived a strong odor of an alcoholic beverage. There were several people in the vehicle, and Defendant was the driver. It was determined that Defendant was nineteen years of age. Defendant stated that she was 94-0247 Criminal Term not drinking, but that some of the other occupants of her vehicle were drinking beer. Officer Greg Martin, also of the Mid-Cumberland Valley Regional Police Department, arrived on the scene to assist Officer Herb. Defendant agreed to a search of her vehicle and signed a consent in this regard because, she said, she had not been drinking. The officers determined that Defendant was not under the influence of alcohol; however, two of the passengers were under the influence, and the police proceeded with the search of the vehicle. Two partial cases of Budweiser beer were found in the trunk of the vehicle. Defendant was aware that she was carrying the beer in her trunk. Thereafter, Defendant was charged with a violation of the Crimes code provision respecting purchase, consumption, possession or transportation of liquor or malt or brewed beverages by a minor and a violation of the Vehicle Code provision respecting driving on roadways laned for traffic. She was transported by police to the police station. At the police station, citations were issued to Defendant, and her parents were notified. She was released at 2:30 a.m. Statement of Law Offenses under Crimes Code and Vehicle Code,. Section 6308(a) of the Crimes Code provides, in pertinent part, as follows: A person commits a summary offense if he, being less than 21 years of age, attempts to 4 94-0247 Criminal Term purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in S6310.6 (relating to definitions). Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. ~6308(a) (1994 Supp.).7 Section 3309(a) of the Vehicle Code provides as follows: Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply: (a) Driving within a single lane. - 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, ~1, 75 Pa. C.S. ~3309(a). It is further provided in the Vehicle Code that "[i]t is a summary offense for any person to violate any of the provisions of [the Vehicle Code] unless the violation is by [the Vehicle Code] or other statute of this Commonwealth declared to be a misdemeanor or felony." Id. ~6502 (1994 Supp.). Procedures in summary offense cases. Prosecutions for summary offenses are instituted pursuant to the Pennsylvania Rules of Criminal Procedure. Rule 51 provides as follows: ? product Budweiser is designated in the Pennsylvania Bulletin as a registered by the manufacturer with the Pennsylvania Liquor Control Board as a "malt or brewed beverage" as defined in the Liquor Code. 22 Pa. Bull. 4146 (1992). 5 94-0247 Criminal Term Criminal proceedings in summary cases shall be instituted either by: (a) issuing a citation to the defendant; or (b) filing a citation; or (c) filing a complaint; or (d) arresting without a warrant when arrest is specifically authorized by law. In the case of the nontraffic summary offense of underage drinking, the authority of a police officer to arrest without a warrant extends only to situations where the violator exhibits disorderly conduct, breach of peace, drunkenness or other irregular behavior. Commonwealth v. Bullers, 410 Pa. Super. 176, 599 A.2d 662 (1991). In the case of traffic summary offenses, "[t]he Vehicle Code provides the procedure for arresting a defendant without a warrant .... " Pa. R.C.P. 76, comment. Section 6308(b) of the Vehicle Code states as follows: Whenever a police officer · · · has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle ' s registration, 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 reasonably believe to be necessary to enforce the provisions of [the Vehicle Code ] . Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa. C.S. 6 94-0247 Criminal Term 6308(b) (1994 Supp.). Thus, a vehicle stop and minimal period of detention are permissible where an officer views a traffic violation. See Commonwealth v. Parker, 422 Pa. Super. 393, 619 A.2d 735 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177 (1992); Commonwealth v. Triplett, 387 Pa. Super. 378, 564 A.2d 227 (1989). In the course of a permissible detention arising out of a traffic stop, a warrantless search of a vehicle by police may be justified where "the seizing officer has [reasonable cause] to believe that the contents of the automobile offend the law,,,8 where police safety is involved,9 or where the motorist validly consents to the search.~0 It has been held that a warrantless search of a vehicle was supported by probable cause where a 19-year old motorist had an odor of an alcoholic beverage on his breath and his vehicle was in an area known as a drinking site for underage individuals. Commonwealth v. Trunzo, 404 Pa. Super. 15, 589 A.2d 1147 (1991) (beer discovered in trunk held properly admitted in underage drinking prosecution). ~ Commonwealth v. Talley, Pa. Super. 640, 642 (1993). _ , , 634 A.2d ~ Commonwealth v. Morris, 422 Pa. Super 343, 619 A 2d 709 (1992). · . ~o Cf. Commonwealth v. Elliott, 376 Pa. Super. 536, 546 A.2d 654 (1988); Commonwealth v. Mancini, 340 Pa. Super 592, 490 A 2d 1377 (1985). · · 7 94-0247 Criminal Term Finally, as a general rule the effect of an illegal arrest is the exclusion of resultant evidence, as opposed to a direct discharge of the defendant. See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990). Application of Law to Facts In the present case, it appears to the Court that the stop and temporary detention of Defendant for a Vehicle Code violation was lawful~under the statutory authority cited above.~ The search of Defendant's vehicle, which was arguably supported by probable cause in the form of Defendant's age, the odor of an alcoholic beverage emanating from her vehicle, her erratic driving, and her inebriated passengers, was, in any event, authorized by her consent - an apparently voluntary, knowing and intelligent grant of permission on her part. To the extent that Defendant's detention exceeded Permissible limits when the officer transported her to the police station and called her parents, a suppression of evidence resulting from the impropriety would be warranted. However, no additional evidence was produced in that period. A discharge of the Defendant based ~ In this regard, the Court is unable to agree with Defendant that a driver's noncompliance with Section 3309(a) of the Vehicle Code by crossing into the oncoming lane of traffic represents less than a violation of the Code for purposes of the rule permitting an officer to stop a vehicle. The fact that it may not be a violation of Section 3309(a) for a driver to cross a white line while merging into a through lane of traffic does not seem to the Court to compel a contrary conclusion. Cf. Commonwealth v. Whitmyer, 415 Pa. Super. 393, 609 A.2d 809 (1992). 8 94-0247 Criminal Term upon this allegedly unlawful arrest would not be an appropriate remedy. For these reasons, it is believed that the Court's verdicts of guilty were permissibly returned, and that the judgment of sentence was properly entered. It is unnecessary to further support these results on the basis of an absence of a pretrial suppression motion.~2 Office of the District Attorney Gregory B. Abeln, Esq. Attorney for Defendant .rc ~ But see Commonwealth v. Trunzo, 404 Pa. Super. 15, 19-23 n.3, 589 A.2d 1147, 1149-50 n.3 (1991). 9