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HomeMy WebLinkAbout93-0244 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 244 CRIMINAL 1993 V. CHARGE: (A) DUI (B) ONE WAY ROADWAYS & TERRY L. GRAHAM ROTARY TRAFFIC ISLANDS IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER. J ORDER OF COURT AND NOW, this I 'day of September, 1993, upon consideration of Defendant's Omnibus Pretrial Motion, and following a hearing, for the reasons stated in the accompanying Opinion, the motion to suppress is DENIED; the motion to exclude field sobriety test evidence is DENIED; the motion to exclude blood alcohol test results is DENIED AS PREMATURE, without prejudice to reinstate the motion at time of trial; the motion to exclude evidence of the passenger's rudeness has been GRANTED by prior court order, quoted in the accompanying Opinion; the motion to sequester witnesses at the hearing has been DENIED by prior court order, quoted in the accompanying Opinion; and the motion to authorize admission of evidence of prior malfunctions of the intoxilizer used to test Defendant's breath is DEFERRED for disposition by the trial court upon appropriate offer of proof. BY THE COURT, Wesley Ole r. ' Kimberley Ann Kardelis, Esq. Assistant District Attorney David E. Hershey, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Defendant :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 244 CRIMINAL 1993 V. CHARGE: (A) DUI (B) ONE WAY ROADWAYS & ROTARY TRAFFIC TERRY L. GRAHAM ISLANDS IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION BEFORE OLER. JR. OPINION AND ORDER OF COURT Oler, J. In the present Vehicle Code case involving charges of driving under the influence' and driving the wrong way on a one-way street,' Defendant has filed an omnibus pretrial motion. In the motion, he seeks the following relief. (1) suppression of evidence based upon a lack of probable cause for his vehicle's stop and his arrest; (2) exclusion of field sobriety test evidence based upon a failure to utilize a proper test procedure; (3) exclusion of blood alcohol test results in the absence of expert testimony relating the results back to the time of driving; (4) exclusion of evidence of a passenger's rudeness toward the police; (5) sequestration of Commonwealth witnesses at the hearing on the motion; and (6) authorization of the admission into evidence of past malfunctions of the intoxilizer machine. A hearing was held on the motion on Friday, September 3, 1993. STATEMENT OF FACTS On Thursday, January 7, 1993, at about 10:15 p.m., while driving with a passenger on the campus of Shippensburg University in Cumberland County, ' Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(a) (1993 Supp.). 2 Act of June 17, 1976, P.L. 162, §1, 75 Pa. C.S. §3308(b). No. 244 Criminal 1993 Pennsylvania, Defendant was stopped by Officer Deborah Springer of the Shippensburg University Police Department. The stop was occasioned by the officer's observation of Defendant entering a one-way street the wrong way and proceeding along it in excess of the campus 15 mile -per -hour speed limit. Notice of the campus speed limit is posted at the campus entrance. The entrance to the one-way street is posted with a "Do Not Enter" sign and a "One -Way" arrow, as well as being partially blocked with a pavement extension to deter wrong - way entry. The street is 20 feet in width, with parking permitted on one side. The road on this occasion was dry, the weather "nice," and the area well lighted. Upon approaching the Defendant in his car, the officer smelled the odor of an alcoholic beverage emanating from his person and vehicle, and observed six to eight beer cans, some of which were open, in the back seat. The Defendant initially resisted production of his driver's license; his speech was slurred and incorporated the word "fucking," his eyes were red and glassy, his appearance was disheveled, and he said he had been drinking. The passenger became verbally abusive to Officer Springer and stated to another officer, "This bitch is causing us problems." Defendant swayed when he stood up, held onto the car to maintain his balance, and staggered when he walked. A walk -and -turn field sobriety test was halted almost immediately by Officer Springer, without being scored, out of concern for Defendant's safety. The officer conceded that the area of the attempted test contained a "slight 2 No. 244 Criminal 1993 incline." Three law enforcement officers with experience in dealing with intoxicated persons testified that in their opinion Defendant was under the influence and incapable of safe driving. A breathalyzer test result was .12% at 11:30 p.m. STATEMENT OF LAW Suppression of evidence based upon alleged illegality of stop and arrest. "Encounters with police may be classified as mere encounters, non-custodial detentions, custodial detentions and formal arrests." Commonwealth v. Ellis, 379 Pa. Super. 337, 354, 549 A.2d 1323, 1331 (1988).3 "The classification of the encounter determines the applicability and scope of constitutional protections ...." Id. "An individual has not been arrested when he is stopped briefly for questioning. Thus, an officer may stop and briefly detain and question an individual if the investigating officer can point to speck and articulable facts which reasonably warrant the belief that criminal activity is afoot. These brief investigatory stops are not considered to be arrests." 1 Wasserbly, Pennsylvania Criminal Practice §6.01 (1991). "A policeman who lacks the requisite level of information for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Id. §6.02. 3 Non-custodial detentions "are also commonly referred to as Terry stops, traffic stops, investigatory detentions and intermediate detentions." Commonwealth v. Ellis, 379 Pa. Super. 337, 354 n.5, 549 A.2d 1323, 1331 n.5 (1988). 3 No. 244 Criminal 1993 Even in the absence of probable cause, an investigating police officer may stop and briefly detain an individual, as long as the officer can point to specific and articulable facts, which, in conjunction with the natural inferences derived from these facts, warrant the intrusion.4 With respect to driving under the influence, erratic or unsafe driving is a common ground for initiating an investigatory stop.' "An investigative detention, of course, may ripen into an arrest based upon probable cause when police uncover additional information confirming earlier suspicions." 1 Wasserbly, Pennsylvania Criminal Practice §6.02 (1991); see, e.g., Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990). Probable cause is "those facts and circumstances available at the time of the arrest which would justify a reasonable prudent man in the belief that a crime has been committed and that the individual arrested was the probable perpetrator." Commonwealth v. Harper, 485 Pa. 572, 583, 403 A.2d 536, 542 (1979). Indicia of being under the influence have been held by this Court to include "excessive speed and impaired judgment, as well as the odor of an alcoholic beverage, bloodshot eyes, and unkempt condition...." Commonwealth v. McClellan, 42 Cumb. L.J. 312, 318 (1993). Additional factors present in this case include the presence of beer cans in the vehicle, an admission by the Defendant of alcohol consumption, inappropriate language, swaying, holding onto a car for support, and staggering. 4 1 Wasserbly, Pennsylvania Criminal Practice §6.02 (1991). s See Commonwealth v. Hamme, 400 Pa. Super. 537, 583 A.2d 1245 (1990); Pokrandt v. Shields, 773 F. Supp. 758 (E.D. Pa. 1991). 4 No. 244 Criminal 1993 The Defendant's disregard of a clearly marked one-way intersection and his speed in excess of that permitted on campus represented specific and articulable facts sufficient to warrant an investigatory stop as described above, even if, as Defendant argues, the signage was not in strict compliance with regulations. In this regard, the officer, even if lacking the requisite level of information for probable cause to effect an arrest, was nevertheless "not required to simply shrug [her] shoulders and allow a crime to occur or a criminal to escape." This proper investigative detention thereafter "ripen[ed] into an arrest based upon probable cause when [the officer] uncovered additional information ...." For these reasons, Defendant's motion to suppress evidence based upon a lack of probable cause for the vehicle's stop and his arrest must be denied. Exclusion of field sobriety test evidence based upon alleged failure to utilize proper test procedure. Defendant notes that a training manual used in the school where Officer Springer was first educated in administration of field sobriety tests suggests that "walk and turn requires a hard, dry, level, non -slipping surface with sufficient room for the suspect to complete nine heel -to -toe steps," and that "[i]ndividuals wearing heels more than two inches high should be given the opportunity to remove their shoes." It is argued that failure to meet these criteria warrants exclusion of evidence as to Defendant's test. First, it may be doubted whether the officer's testimony that the area in R No. 244 Criminal 1993 question possessed a "slight incline" shows its unsuitability as not "level" for purposes of the manual. Second, there was no testimony establishing that the footwear worn by Defendant had heels in excess of two inches. Third, the conclusiveness of the manual for present purposes has not been established. Fourth, and most important, no testimony is proposed as to Defendant's score on the test — the testimony will be that under the aforesaid circumstances he took two steps, started to fall, and was told to stop for his own safety. Whether or not a test result in accordance with the manual's scoring system would have been admissible had the process proceeded to conclusion, it seems clear that the Defendant's physical behavior, placed in the context of the surrounding circumstances, is part of the evidence which is relevant to his condition, to be accorded such weight and effect as the jury cares to give it. For this reason, Defendant's motion to exclude evidence in connection with the field sobriety test will be denied. Exclusion of blood alcohol test results in the absence of relation -back testimony. Whether the Commonwealth will present expert testimony at trial relating back the blood alcohol test result to the time of driving is not a matter determinable at this time. For this reason, Defendant's motion to exclude the test result as unsupported by such testimony will be denied as premature, without prejudice to Defendant's right to reinstate the issue before the trial judge, at the time of trial. Exclusion of evidence of passenger's rudeness. At the hearing on Defendant's 0 No. 244 Criminal 1993 omnibus pretrial motion, the Commonwealth stated that it did not intend to introduce evidence as to the passenger's rudeness in its prosecution of Defendant, although it did intend to explain the presence of a second campus police officer on the scene in terms of a need to deal with the passenger. The following Order, acceptable to both counsel, was entered at the hearing, disposing of Defendant's motion in this regard: AND NOW, this 3rd day of September, 1993, upon consideration of the Defendant's Omnibus Pretrial Motion as it relates to evidence of the alleged rudeness of the passenger in the Defendant's vehicle, and it having been agreed by Kimberley Kardelis, Esquire, on behalf of the Commonwealth that the Commonwealth does not intend to present evidence of such rudeness at trial, that portion of the motion is granted, and the Commonwealth is precluded from presenting evidence of the passenger's rudeness at trial. Nothing in this Order is intended to preclude the Commonwealth from presenting testimony and evidence to the effect that Officer Kater was present on the scene and was occupied in dealing with the passenger. Sequestration of hearing witnesses. At the hearing on Defendant's omnibus pretrial motion, the Defendant's motion for sequestration of Commonwealth witnesses at the hearing was considered. The Commonwealth opposed the motion, and the Court, following argument, entered the following Order: AND NOW, this 3rd day of September, 1993, upon consideration of the Defendant's motion to sequester Commonwealth witnesses at this hearing on the Defendant's Omnibus Pretrial Motion, and the Commonwealth in the person of Kimberley Kardelis, Esquire, having objected to the proposed sequestration of witnesses, the motion is denied. 7 No. 244 Criminal 1993 "The question of whether to sequester witnesses is one within the discretion of the court ...." Commonwealth v. Davis, 363 Pa. Super. 562, 581, 526 A.2d 1205, 1215 (1987). In support of the motion, Defendant presented no reasons peculiar to the present case which seemed to the Court to require sequestration. The testimony on behalf of the Commonwealth at the hearing consisted of that of two campus police officers and one municipal police officer. In general, the testimony did not cover the same events, the facts were not in dispute, and on the point which Defendant appeared to regard as most critical — the number and placement of one-way or do -not -enter signs — the witnesses did not agree. As to the latter point, the Court for purposes of this Opinion assumed that the signage was not in conformity with regulation. For these reasons, it is believed that the motion to sequester witnesses was permissibly denied. Authorization of admission into evidence of past malfunctions of intoxilizer machine. Defendant advises that an examination of log book entries for the intoxilizer used to test Defendant's breath "shows a history of malfunctions of the unit..., beginning in July of 1992 ....i. He seeks authorization "to present evidence of malfunctions of the intoxilizer unit to the jury for consideration for the period of July of 1992 through February of 1993."' The Court believes that this matter is one best B Defendant's Brief in Support of Omnibus Pre -Trial Motion for Relief, at 16-17. 7 Id., at 17-18. No. 244 Criminal 1993 reserved to the trial court, and has advised Defendant that he may wish to be prepared with an offer of expert testimony to show the relevance of malfunctions of the nature experienced and in the time period involved to the reliability of the machine's test result in this case. For this reason, the motion for authorization of admission of this evidence will be deferred. For the foregoing reasons, the following Order of Court will be entered: ORDER OF COURT AND NOW, thish" day of September, 1993, upon consideration of Defendant's Omnibus Pretrial Motion, and following a hearing, for the reasons stated in the accompanying Opinion, the motion to suppress is DENIED; the motion to exclude field sobriety test evidence is DENIED; the motion to exclude blood alcohol test results is DENIED AS PREMATURE, without prejudice to reinstate the motion at time of trial; the motion to exclude evidence of the passenger's rudeness has been GRANTED by prior court order, quoted in the accompanying Opinion; the motion to sequester witnesses at the hearing has been DENIED by prior court order, quoted in the accompanying Opinion; and the motion to authorize admission of evidence of prior malfunctions of the intoxilizer used to test Defendant's breath is DEFERRED for disposition by the trial court upon appropriate offer of proof. BY THE COURT, n a J. Wesley Oler, r. �/ J. 9 No. 244 Criminal 1993 Kimberley Ann Kardelis, Esq. Assistant District Attorney David E. Hershey, Esq. 2233 North Front Street Harrisburg, PA 17110 Attorney for Defendant :rc Rol