HomeMy WebLinkAbout92-1523 CriminalCOMMONWEALTH
• IN THE COURT OF COMMON PLEAS OF
• CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 1523 CRIMINAL 1992
CHARGE: (A) DRIVING UNDER THE
INFLUENCE
PHILIP E. McCLELLAN, II (B) DRIVING VEHICLE
ED
AFFIANT: TPR. KEITHAFE ELEYDIG
BEFORE OLER ,J
ORDER OF COURT
AND NOW, this 30th day of March, 1993, upon consideration of
Defendant's Motion To Suppress Evidence and following
the Motion is GRANTED to the extent that it seeks
Defendant's suppression
a hearing,
inculpator y statuppression of
statement, DENIED to the extent that it
seeks suppression of
grounds the blood test result on constitutional
and the
as to
disposition to time of trial to the
extent that it seeks exclusion of the blood test result
on mere
evidentiary grounds.
BY THE COURT,
J Wesley O1 , Jr., J•
Thomas A. Placey, Esq.
Assistant District Attorney
James F. Heinly, Esq.
601 Estelle Drive
Lancaster, PA 17601
Attorney for Defendant
:rc
COMMONWEALTH IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 1523 CRIMINAL 1992
V. CHARGE: (A) DRIVING UNDER THE
INFLUENCE
: (B) DRIVING VEHICLE
SAFE SPEED
PHILIP E. McCLELLAN, II AFFIANT: TPR. KEITH LEYDIG
IN RE: DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
BEFORE OLER, J.
OPINION AND ORDER OF COURT
Oler, J.
In the present criminal case in which the Defendant is charged
with driving under the influence' and driving at an unsafe speed,2
a motion to suppress evidence has been filed on his behalf. A
hearing was held on the motion on March 11, 1993, and March 22,
1993. Based upon the evidence presented at the hearing, the
following Findings of Fact, Discussion and Order of Court are made
and entered:
FINDINGS OF FACT
1. The Defendant and moving party is Philip E. McClellan, II,
a junior at Dickinson College in Cumberland County, Pennsylvania,
and resident of York, York County, Pennsylvania,' born January 30,
' Act of June 17, 1976, P.L. 162, §l, as amended, 75 Pa. C.S.
§3731 (1992 Supp.).
2 Act of June 17, 1976, P.L. 162, §l, 75 Pa. C.S. §3361.
This is a summary offense.
3 N.T. 81, 92, Suppression Hearing, Commonwealth V.
McClellan, 1523 Criminal 1992 (Cumberland Co.) (March 11, 22, 1992)
(hereinafter N.T. ).
4 N.T. 81.
No. 1523 Criminal 1992
1971.5
2. Defendant has been charged with driving under the
influence and driving at an unsafe speed (summary offense),6 as a
result of an incident occurring on the afternoon of Monday, May 18,
1993,' on Route 233, Cooke Township, Cumberland County,
Pennsylvania.'
3. At the aforesaid time and place, the Ford Bronco' in which
the Defendant was traveling10 failed to negotiate a curve," left
the roadway, 12 rolled over, and came to rest in woodland on its
roof,13 leaving 70 feet of slid marks on the road and 58 feet of
tire marks on the berm and dirt."'
4. At the aforesaid time and place, the weather was warm and
dry, with no adverse conditions, and it was light out."
5
N.T.
95.
6
See notes 1, 2 supra.
'
N.T.
5-6.
'
N.T.
7.
'
N.T.
5.
10
N.T.
10.
11
N.T.
5.
12
N.T.
5.
13
N.T.
5.
"a
N.T.
9.
15
N.T.
6, 9.
K
No. 1523 Criminal 1992
5. Four other young men were with Defendant at the time of
the accident,16 one of whom was injured and taken to a hospital by
a trailing vehicle without police knowledge 17 and the other three
of whom remained with Defendant at the accident scene. 18
6. At approximately 5:35 p.m., Pennsylvania State Trooper
Keith Douglas Leydig,19 of the Carlisle, Cumberland County,
Pennsylvania, barracks, 20 responded to the one -vehicle accident, 21
surveyed the scene as described above, 22 determined that the four
individuals had all been involved in the accident, 23 secured the
driver's license of each, 24 obtained the registration card and
insurance card from the vehicle, 25 and determined that the keys
were in the vehicle.26
16 N.T. 10-12, 19-20.
17 N.T. 78, 19-21; 24; Commonwealth's Exhibit 3.
is N.T. 11-12.
19 N.T. 5.
20 N.T. 5.
21 N. T. 5.
22 N.T. 5-10.
23 N.T. 11.
24 N.T. 12.
25 N.T. 12.
26 N.T. 14, 28.
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No. 1523 Criminal 1992
7. The individuals all had bloodshot eyes, 27 were somewhat
dirty and not neatly dressed, 28 each had an odor of alcoholic
beverage emanating from him, 29 and appeared to the trooper to be
under the influence to a degree rendering the person incapable of
safe driving."
8. The individuals refused to tell the trooper who the driver
of the vehicle was without a lawyer being present."
9. The registration and insurance cards were uninformative as
to which of the individuals was the driver, 12 indicating ownership
of the vehicle by a business entity known as York Fasteners ;33 the
location of the keys to the vehicle was similarly uninformative.31
10. Believing that exigent circumstances for prompt action
existed, 35 in the form of a dissipation of evidence as to blood
alcohol content through the passage of time,36 the trooper and
27
N.T.
13.
28
N.T.
11.
29
N.T.
13.
30
N.T.
25, 39.
31
N.T.
13-14.
32
N.T.
12.
33
N.T.
12.
34
See
note 26 supra and accompanying text.
35
N.T.
14, 24-25.
36
N.T.
24-25.
4
No. 1523 Criminal 1992
another state police officer who had arrived37 placed all four
individuals under arrest for driving under the influence."
11. The individuals were read their Miranda rights, 39 and
transported in custody to the Carlisle, Cumberland County,
hospital, 40 where they arrived at approximately 6:30 p.m."'
12. At the hospital, Defendant was read the implied consent
warning, 42 and he gave permission for the drawing of blood. 43
13. A specimen of blood was drawn from Defendant44 at 6:35
p.m. 45
14. At the hospital, Trooper Leydig was made aware of the
presence of an accident victim in the emergency room who might be
of interest, 46 and upon investigation the patient identified
37 N.T. 14.
38 N.T. 14-15.
39 N.T. 15.
40 N.T. 15.
41 N.T. 15.
42 N.T. 18.
43 N.T. 18; Commonwealth's Exhibit 1.
44 N.T. 19. Blood was also supplied by the other three
individuals. Id.
45 Commonwealth's Exhibit 1.
46 N.T. 19.
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No. 1523 Criminal 1992
himself47 and revealed that Defendant had been the driver of the
vehicle when he was injured.d8
15. Notwithstanding Defendant's repeated assertion of a right
to consult an attorney prior to making a statement as to operation
of the vehicle, 49 he continued to be interrogated on the
subject, 50 and at 8:32 p.m., 51 following discussion on the
telephone with his mother, whom police had called, 52 he executed
a waiver of his Miranda right S5' and made an inculpatory
statement. -14
16. The result of a test to determine the alcoholic content
of Defendant's blood specimen was .13%.55
DISCUSSION
In the present case, Defendant seeks the suppression of
Defendant's inculpatory statement on the ground that it resulted
from impermissible police interrogation following his invocation of
67 N.T. 19.
ae N.T. 20.
49 N.T. 31, 93.
50 N.T. 31.
51 Commonwealth's Exhibit 2.
52 N.T. 32, 35.
53 N.T. 36; Commonwealth's Exhibit 2.
54 Commonwealth's Exhibit 2.
55 N.T. 97.
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No. 1523 Criminal 1992
the right to counsel" and of the blood test result on the ground
that the blood was obtained by police in the absence of reasonable
grounds to believe that Defendant was driving, operating or in
actual physical control of the vehicle in question while under the
influence.57 These issues will be discussed seriatim.
Suppression of Inculpatory Statement
Statement of law. "[W]here a suspect invokes his Fifth
Amendment right to counsel, the police must cease interrogation
until counsel is afforded and present at the interrogation ...."
Appeal of Pack, Pa. Super. , , 616 A.2d 1006, 1010
(1992).58 "If a defendant indicates in any manner at any time
prior to or during questioning that he wishes to remain silent or
wants an attorney, interrogation must cease." Commonwealth v.
Hackney, 353 Pa. Super. 552, 557, 510 A.2d 800, 803 (1986).
"[W]hen an accused has invoked his right to have counsel present
56 Defendant's Memorandum of Law, at 5-6.
57 Defendant's Memorandum of Law, at 6-9. An additional
ground for exclusion of evidence as to the blood test result,
relating to the lapse of time between vehicle operation and
extraction of blood, has been relegated by agreement of counsel to
the trial court, with it being the responsibility of defense
counsel to reassert the motion at time of trial. N.T. 2-3; Order
of Court, March 11, 1993.
58 "It is the Fifth Amendment protection against compelled
self-incrimination which provides the right to counsel during
custodial interrogation. After arraignment, the right to counsel
during interrogation is provided also by the Sixth Amendment
guarantee of the assistance of counsel." Commonwealth v. Hackney,
353 Pa. Super. 552, 558, 510 A.2d 800, 803 (1986).
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No. 1523 Criminal 1992
during interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police -
initiated custodial interrogation even if he has been advised of
his rights...." Edwards v. Arizona, 451 U.S. 4771 484, 101 S. Ct.
1880, 1884, 68 L. Ed. 2d 378, 386 (1981), reh'g denied, 452 U.S.
973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981). Suppression of
evidence resulting from a violation of one's rights in this regard
is mandated. Commonwealth v. Hackney, 353 Pa. Super. 552, 510 A.2d
800 (1986).
Application of law to facts. In this case, the Defendant
repeatedly indicated that he would not respond to police questions
without an attorney. Notwithstanding his assertion of this right,
interrogation did not cease. The fact that he eventually yielded
on the point does not, of itself, demonstrate a valid waiver.
Based upon the foregoing authority, the inculpatory statement
resulting from the continued interrogation must be suppressed."
Suppression of Blood Test Result
Statement of law. Under Section 1547 of the Vehicle Code, a
59 Whether the Defendant could be prosecuted for a violation
of Section 3746 of the Vehicle Code (duty of driver of automobile
to report accident involving injury or death, or vehicle damage
requiring towing) or of Section 3744 of the Vehicle Code (duty of
driver of automobile involved in accident resulting in injury or
death to supply information relating to financial responsibility
and exhibit driver's license to investigating officer at scene) is
not presently before the Court. Act of June 17, 1976, P.L. 162,
§l, 75 Pa. C.S. §3746; id., as amended, 75 Pa. C.S. §3744 (1992
Supp.).
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No. 1523 Criminal 1992
person is deemed to have consented to administration of a chemical
test of his or her breath, blood or urine for the purpose of
determining blood alcoholic content when a police officer has
reasonable grounds to believe that he or she was driving under the
influence.60 A license suspension will result from the refusal of
one placed under arrest for driving under the influence to submit
to such a test, 61 and the refusal will be admissible in the
prosecution. 62
"Intoxication is not a condition outside the realm of
understanding or powers of observation of ordinary persons."
Commonwealth v. Neiswonger, 338 Pa. Super. 625, 628 n.2, 488 A.2d
68, 69 n.2 (1985) (competency of police officer, who has observed
defendant's appearance and acts, to testify as to intoxication and
ability to drive safety). Factors which bear upon whether a person
is reasonably thought to be under the influence of alcohol include
the circumstances of any accident which may have occurred, 63 the
60 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.
51547(a) (1992 Supp.).
61 Act of June 17, 1976, P.L. 162, §l, as amended, 75 Pa. C.S.
§1547(b) (1992 Supp.).
62 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.
§1547(e) (1992 Supp.).
63 See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920
(1990).
6
No. 1523 Criminal 1992
odor of an alcoholic beverage, 64 and bloodshot eyes."
The problem confronting a police officer who is placed in a
position of knowing that one of a very few persons is responsible
for an offense, and who is acting under exigent circumstances, 66
has been discussed by Pennsylvania's appellate courts. In this
regard, it has been observed that "[p]robable cause may justify the
arrest of more than one person. If, for example, ... A is found
one block north of a recently robbed bank and matches the
description of the robber, the arrest of A does not preclude the
subsequent arrest of B who also matches the description and is
found one block south of the bank." Commonwealth v. Bunch, 329 Pa.
Super. 101, 116, 477 A.2d 1372, 1380 (1984); see Commonwealth v.
Chase, 394 Pa. Super. 168, 575 A.2d 574, allocatur denied, Pa.
590 A.2d 295 (1990) .67
Thus, in Bunch the Pennsylvania Superior Court cited with
apparent approval a Florida Supreme Court decision upholding the
subjection of all five living victims of a two -car accident to
64 See Commonwealth v. Fick, 391 Pa. Super. 625, 571 A.2d 1091
(1990); Commonwealth v. Fairley, 298 Pa. Super. 236, 444 A.2d 748
(1982).
65 See Commonwealth v. Hanes, 397 Pa. Super. 38, 579 A.2d 920
(1990).
66 Cf. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826,
16 L. Ed. 2d 908 (1966).
67 Cf. Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189
(1975) (dragnet arrests held impermissible).
10
No. 1523 Criminal 1992
blood alcohol tests, upon the theory that the "officer had
reasonable cause to believe that one or more of the limited group
of five had been driving under the influence of alcohol."
Commonwealth v. Bunch, 329 Pa. Super. 101, 114 n.2, 477 A.2d 1372,
1379 n.2 (1984).
Application of law to facts. In this case, the circumstances
of the accident, indicating excessive speed and impaired judgment,
as well as the odor of an alcoholic beverage, bloodshot eyes, and
unkempt condition, were sufficient to lead the trooper to
reasonably believe that the operator of the vehicle, who was among
the limited group of four that refused to divulge who was driving,
had been under the influence of alcohol within the purview of
Section 3731 of the Vehicle Code. The circumstances in which the
trooper found himself in terms of preservation of evidence were
exigent. Based upon the foregoing authority, his arrest of the
Defendant and request that he submit to a blood test was not
unconstitutional, and the blood test result will not be suppressed
on constitutional grounds.
For the reasons stated in this Opinion, the following Order
will be entered:
ORDER OF COURT
AND NOW, this 30th day of March, 1993, upon consideration of
Defendant's Motion To Suppress Evidence and following a hearing,
the Motion is GRANTED to the extent that it seeks suppression of
11
No. 1523 Criminal 1992
Defendant's inculpatory statement, DENIED to the extent that it
seeks suppression of the blood test result on constitutional
grounds, and DEFERRED as to disposition to time of trial to the
extent that it seeks exclusion of the blood test result on mere
evidentiary grounds.
Thomas A. Placey, Esq.
Assistant District Attorney
James F. Heinly, Esq.
601 Estelle Drive
Lancaster, PA 17601
Attorney for Defendant
:rc
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
12