HomeMy WebLinkAbout01-1934 CRIMINALCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
LEONARD DWAYNE
FAHNESTOCK
NO. 01-1934 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 16, 2002.
In this criminal case, Defendant was found guilty of driving under the
influence of alcohol in violation of Sections 3731(a)(1) and 3731(a)(4) of the
Vehicle Code, following a bench trial which included evidence of a BAC test
result of. 124% and various indicia of intoxication on Defendant's part.~ He was
sentenced to the mandatory minimum sentence applicable to the offense.2
On April 24, 2002, Defendant filed a timely appeal to the Pennsylvania
Superior Court from the judgment of sentence.3 IN a statement of matters
complained of on appeal, he has indicated that the sole issue on appeal is the
propriety of the court's denial of an omnibus pretrial motion in the form of a
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motion to suppress.
Defendant's motion to suppress was premised upon an alleged lack of a
lawful basis for a stop of his vehicle.5 This opinion in support of the court's denial
of the motion to suppress is written pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a).
~ See Order of Court, February 20, 2002.
: Order of Court, April 9, 2002.
s Defendant's Notice of Appeal, filed April 24, 2002.
4 Defendant's Concise Statement of Matters Complained of on Appeal, filed April 29, 2002.
5 Defendant's Omnibus Pre-Trial Motion, filed November 14, 2001; N.T. 3, Suppression Hearing,
December 3,2001 (hereinafter N.T. ~.
STATEMENT OF FACTS
A hearing on Defendant's omnibus pretrial motion was held by the writer
of this opinion on December 3, 2001. The facts regarding the stop of Defendant's
vehicle as shown at the hearing may be summarized as follows.
At 2:30 a.m. on Sunday, July 1, 2001, Patrolman Matthew J. Kennedy of
the Carlisle Borough Police Department6 was in full uniform in a marked police
car in the borough.7 His vehicle was stopped in the left northbound lane of
Hanover Street at its intersection with North Street. 8
From two blocks behind him, to the south, at the square in Carlisle where
Hanover Street intersected with High Street, he heard a long, sustained squealing
of tires.9 In his rearview mirror, he saw that the noise was emanating from a black
Thunderbird which was executing a left turn from High Street into a northbound
lane of Hanover Street.l° The magnitude of the squealing of the tires was such as
to indicate a vehicle that "was barely in control" as it made the turn. ~
The Thunderbird proceeded north on Hanover Street, switched lanes and
came to a stop next to Patrolman Kennedy's car in the right lane at the aforesaid
intersection, where a red light was controlling northbound traffic.~2 Patrolman
Kennedy observed that Defendant was the occupant/driver of the vehicle. ~3
The officer further observed that Defendant's eyes were very glassy and so
bloodshot that they "were just like glowing red.''~4 When Defendant looked at the
officer, his expression conveyed an impression of confusion and his eyes were
Patrolman Kennedy had been a member of the police force since 1998. N.T. 3-4.
N.T. 3-4.
N.T. 4-5.
N.T. 4-7, 10.
l0 N.T. 4-6, 9.
~ N.T. 5, 8.
~2 N.T. 5-6, 10.
~ N.T. 6.
14 N.T. 7.
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"like owlish, just real wide.''~5 In addition, Defendant's head was "bobbing.''~6
When asked to elaborate upon this characteristic, the officer responded as follows:
It was just sort of like he couldn't keep his head straight. It
was just like, you know, moving all over the place and like
circles and whatever, like he was having a hard time keeping
his head in one place.~7
Based on these circumstances, Patrolman Kennedy initiated a stop of
Defendant's vehicle.la A charge of driving under the influence eventually ensued.
Following the suppression hearing,~9 the court entered the following order
denying Defendant's motion to suppress:
AND NOW, this 3rd day of December, 2001, upon
consideration of Defendant's Omnibus Pretrial Motion in the
form of a Motion To Suppress based upon an allegedly illegal
stop of Defendant's vehicle, and following a hearing, the
Defendant's motion is denied.2°
DISCUSSION
When a defendant files a motion to suppress, the burden is on the
Commonwealth to establish by a preponderance of the evidence that the
challenged evidence is admissible. 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); Pa. R. Crim. P. 581(H).
Under the Fourth Amendment to the federal Constitution, "[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated .... "U.S. Const. amend.
IV. Under Article 1, Section 8, of the Pennsylvania Constitution, "[t]he people
~5 N.T. 7.
16 N.T. 7.
~7 N.T. 7.
~8 N.T. 7.
19 Patrolman Kennedy was the only witness at the suppression hearing.
testimony credible in all respects.
20 Order of Court, December 3,2001.
The court found his
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shall be secure in their persons, houses, papers and possessions from unreasonable
searches and seizures .... "Pa. Const. art. I, §8. For a stop of a motor vehicle for a
violation of the Vehicle Code to be compatible with these constitutional
provisions, the law enforcement officer must have at least reasonable and
articulable grounds to believe that a violation of the Code has occurred. DeW itt,
530 Pa. at 303-04, 608 A.2d at 1032; Commonwealth v. McElroy, 428 Pa. Super.
69, 76, 630 A.2d 35, 39 (1993), appeal denied, 543 Pa. 729, 673 A.2d 335 (1996);
see Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.A. §6308 (b)
(West Supp. 2001).
Driving under the influence is a violation of the Vehicle Code. Act of June
17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731 (West Supp. 2001). The
totality of the circumstances known to the officer are to be considered in a
determination of the issue of whether reasonable and articulable grounds existed
for a belief that a violation of the Code had occurred. See Commonwealth v.
Gayle, 449 Pa. Super. 247, 256, 673 A.2d 927, 931 (1996).
indicia of driving under the influence include erratic2~ or unsafe22 driving,
glassy eyes,23 bloodshot eyes,24 impairment of mental faculties25 and impairment
of physical faculties.26 In the present case, the officer's aural perception of erratic
or unsafe driving on the part of Defendant in the form of excessive speed in
negotiating a turn in the center of a municipality and his visual observation of
Defendant's bloodshot, glassy eyes, confused countenance, and inability to control
2~ 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), afl'd, No. 622 MDA 2001 (Pa. Super. Ct., September 17, 2001).
22 See Commonwealth v. Hamme, 400 Pa. Super. 537, 585 A.2d 1245 (1990); Pokrandt v. Shields,
773 F. Supp. 758 (E.D. Pa. 1991).
23 See Commonwealth v. Smith, 382 Pa. Super. 288, 555 A.2d 185 (1989).
24 See Commonwealth v. Smith, 382 Pa. Super. 288, 555 A.2d 185 (1989).
25 See Commonwealth v. Kowalek, 436 Pa. Super. 361,647 A.2d 948 (1994).
26 See Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000).
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the movemem of his head represented, in the court's view, reasonable and
articulable grounds to believe that a violation of the Vehicle Code in the form of
driving under the influence had occurred.
For these reasons, the order denying Defendant's omnibus pretrial motion
to suppress based upon a lack of a lawful basis for the stop of his vehicle was
entered.
BY THE COURT,
Jaime Keating, Esq.
Chief Deputy District Attorney
Jessica B. Rhoades, Esq.
Assistant Public Defender
J. Wesley Oler, Jr., J.
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