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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHERELLE PARKER
Appellant No. 231 EDA 2014
Appeal from the Order December 23, 2013
In the Court of Common Pleas of Philadelphia Municipal Court -
Traffic Division at No(s): MC-51-CR-0018485-2011
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 22, 2014
Appellant, Cherelle Parker, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying her petition for a writ
of certiorari filed after the Municipal Court found her guilty of two (2) counts
1
We affirm.
The relevant facts and procedural history of this appeal are as follows.
On April 30, 2011, at approximately 12:18 a.m., Philadelphia Police Officers
Israel Miranda and Stephanie Allen were on routine patrol when they
observed Appellant driving a silver Jeep Cherokee. Appellant drove
eastbound on Haines Street, which is a one-way street for westbound traffic
only. At the intersection of Haines and Baynton Streets, Appellant made a
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1
75 Pa.C.S.A. § 3802(a)(1), (c).
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left turn onto Baynton Street without using a turn signal. At that point, the
officers activated the emergency lights and sirens on their patrol car and
initiated a traffic stop. Appellant immediately pulled over on Baynton Street.
Officer Miranda smell
asked Appellant if she had been drinking. Appellant responded affirmatively.
As Appellant searched her purse for the paperwork, she appeared
disoriented. The officers noticed Appellant had glassy eyes, and her speech
was slow. Officer Miranda ordered Appellant to step out of the vehicle, and
she complied. Appellant, however, had trouble standing as she alighted
from vehicle. Ultimately, the officers arrested Appellant for DUI.
Subsequent testing re
The Commonwealth filed a criminal complaint charging Appellant with
DUI. On September 20, 2011, the Municipal Court conducted a hearing. At
the beginning of the hearing, Appellant orally moved to sup
Hearing, 9/20/11, at 5; R.R. at 2). Appellant argued that the officers
conducted an illegal vehicle stop without probable cause or reasonable
suspicion. Appellant also argued that the officers did not have probable
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cause to support the arrest. After receiving testimony from Officer Miranda,
Officer Allen, and Appellant, the court took the matter under advisement.
On November 1, 2011, the Municipal Court granted App
suppression motion, issuing the following on-the-record statement:
Let me make it clear for the record that there are two
major factors for the findings of fact and conclusions of law
in this case. The first factor on which I base these findings
of fact and conclusions of law was the testimony of Police
Officer Miranda with regard to his ability to reasonably
determine based on his observations and personal and
professional experience whether [Appellant] was under the
influence of alcohol. Police Officer Miranda testified that he
has arrested approximately two hundred suspects for DUI
and yet in his personal and professional life he has only
observed one hundred individuals who were intoxicated.
, one can
reasonably conclude that fifty percent of all those arrested
by him for DUI were not intoxicated, which is disturbing.
further when he indicated, quote, no one can drink any
amount of alcohol without being impaired, unquote. Police
of arrest for DUI taken together with his zero tolerance for
drinking raises a serious doubt with this [c]ourt as to his
ability to reasonably determine whether there was
sufficient reasonable suspicion or probable cause to arrest
[Appellant].
The second and most troubling factor for these findings of
fact and conclusions of law is Police Officer Miranda clearly
causing himself and his partner to testify in a less than
truthful manner on very obvious and critical points before
this [c]ourt. Both Police Officers Miranda and Allen
testified unequivocally that there was, quote, no traffic in
the vicinity of Germantown and Haines, unquote, around
midnight on Friday, April 29, 2011. For both officers to
testify that from 11:30 p.m. to 12:30 a.m. there were no
cars driving on the streets of Germantown on a Friday
night in the springtime was incredible based on both my
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personal experience as a Philadelphia native and based on
easily accessible crime statistics for the 14th Police District.
th
District would not be designated as it is by the Philadelphia
Police Department as one of the worst high crime, high
arrest areas in the city. Sadly, it was not until Police
Officer Allen, under strenuous cross-examination by
defense counsel, that she contradicted her own earlier
testimony, and equally importantly, that of her fellow
partner when she testified, quote, there was a car in front
of us on the street, unquote. The reluctant admission that
another vehicle or vehicles was or were on the street at
the time of the arrest raises serious doubts about the
ntly,
another vehicle at the time they allege to have observed
[Appellant] driving her vehicle the wrong way.
The lack of veracity as to traffic coupled with the sheer
number of discrepancies between the testimony of the
officers and the police paperwork makes it impossible for
this [c]ourt to accept as true any of their testimony. For
example, Officers Miranda and Allen testified that
never mentioned in the police paperwork. The police
testimony woefully insufficient with regard to his
percentages of arrests for DUI, especially taken together
with his zero tolerance statement about intoxication. And
this [c]ourt further finds it cannot rely upon the testimony
of either Police Officer Allen or Police Officer Miranda
because of their lack of veracity.
Consequently, this [c]ourt concludes that the
Commonwealth has not met its burden for the stop,
reasonable suspicion, and probable cause for the arrest
and this [c]ourt, therefore, grants the motion to suppress.
(N.T. Hearing, 11/1/11, at 3-7; R.R. at 40-44).
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On November 14, 2011, the Commonwealth filed a motion for
reconsideration and new matter. In addition to asking the court to
reconsider the suppression ruling, the Commonwealth requested the recusal
(Motion to Reconsider and New Matter, filed 11/14/11, at 4). On November
15, 2011, the court denied the motion to reconsider the suppression ruling.
The court denied the recusal request on November 21, 2011.
On November 29, 2011, the Commonwealth filed a notice of appeal
separate order entered that same day, the CCP granted the
conjunction with the orders. Appellant subsequently sought permission to
, which this Court
denied on March 30, 2012.
On January 16, 2013, Appellant appeared for trial before a specially
assigned, out-of-county jurist. That same day, the Municipal Court found
Appellant guilty of two (2) counts of DUI and sentenced her to seventy-two
for writ of certiorari with the CCP on January 24, 2013. On December 23,
2013, the CCP denied the petition for writ of certiorari.
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Appellant timely filed a notice of appeal on January 14, 2014. On
January 23, 2014, the court ordered Appellant to file a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P 1925(b). Appellant
timely filed a Rule 1925(b) statement on February 6, 2014.
Appellant raises two issues for our review:
SUPPRESS ON GROUNDS OF CREDIBILITY COULD VALIDLY
BE REVERSED BY THE COURT OF COMMON PLEAS.
WHETHER THE COURT OF COMMON PLEAS ERRED IN
ORDERING THE RECUSAL OF [THE] MUNICIPAL COURT
In her first issue, Appellant asserts the Municipal Court properly
granted her suppression motion in light of numerous inconsistencies in the
maintains Officer Miranda testified that there were no other vehicles on the
road at the time of the traffic stop, but Officer Allen conceded that there was
statement that any consumption of alcohol renders an individual incapable of
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original determination that the officers were not credible. Appellant
ruling. We disagree.
We review the denial of a suppression motion as follows:
Our standard of review in addressing a challenge to a trial
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the
prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the record
supports the findings of the suppression court, we
are bound by those facts and may reverse only if the
court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en
banc) (internal citations and quotation marks omitted). Further, Both
Municipal and Common Pleas Courts are bound by the same law and apply
Commonwealth v. Harmon, 469 Pa. 490, 498, 366 A.2d 895, 899 (1976)
(internal footnote omitted). s of both courts are trained in the
law and their decisions are subject to review on post-trial motions and upon
Id.
Section 6308 of the Motor Vehicle Code provides:
§ 6308. Investigation by police officers
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* * *
(b) Whenever a police
officer is engaged in a systematic program of checking
vehicles or drivers or has reasonable suspicion that a
violation of this title is occurring or has occurred, he may
stop a vehicle, upon request or signal, for the purpose of
responsibility, vehicle identification number or engine
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
investigatory purpose relevant to the Commonwealth
v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010), appeal denied, 611 Pa.
officer to articulate specific facts possessed by him, at the time of the
questioned stop, which would provide probable cause to believe that
the vehicle or the driver was in violation of some provision of the
Code Id. (emphasis in original).
are within the knowledge of the officer at the time of the arrest, and of
which he has reasonably trustworthy information, are sufficient to warrant a
[person] of reasonable caution in the belief that the suspect has committed
Commonwealth v. Thompson, 604 Pa. 198,
203, 985 A.2d 928, 931 (2009) (internal quotation marks omitted).
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correct or more likely true than false. Rather, we require
only a probability, and not a prima facie showing, of
criminal activity. In determining whether probable cause
exists, we apply a totality of the circumstances test.
Id. (emphasis in original) (internal citations and quotation marks omitted).
Pennsylvania law makes clear, however, that a police officer has probable
cause to stop a motor vehicle if the officer observed a traffic code violation,
even if it is a minor offense. Commonwealth v. Chase, 599 Pa. 80, 89,
960 A.2d 108, 113 (2008).
Section 3308 of the Motor Vehicle Code provides:
§ 3308. One-way roadways and rotary traffic islands
* * *
(b) Driving on one- Upon a
roadway designated for one-way traffic, a vehicle shall be
driven only in the direction designated at all or such times
as shall be indicated by official traffic-control devices.
75 Pa.C.S.A. § 3308(b). Further, Section 3334 provides:
§ 3334. Turning movements and required signals
(a) Upon a roadway no person shall
turn a vehicle or move from one traffic lane to another or
enter the traffic stream from a parked position unless and
until the movement can be made with reasonable safety
nor without giving an appropriate signal in the manner
provided in this section.
75 Pa.C.S.A. § 3334(a).
Instantly, the original Municipal Court conducted a suppression hearing
where the Commonwealth presented testimony from Officers Miranda and
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Allen. Officer Miranda testified that he and Officer Allen were on patrol when
they observed Appellant driving eastbound on Haines Street. Officer
Miranda explained that Haines Street is a one-way street for westbound
proceeded down Haines Street. At the intersection of Haines and Baynton
Streets, Appellant made a left turn without signaling. (See N.T. Suppression
Hearing at 69; R.R. at 18.) Officer Miranda explained that no other vehicles
hicle. At that point, the
officers initiated a traffic stop and Appellant pulled over on Baynton Street.
Appellant behind the wheel, and asked Appellant for her paperwork. As
Appellant fumbled through her handbag, Officer Miranda asked Appellant
Id. at 18; R.R. at 5). Upon
interacting with Appellant, Officer Miranda smelled a strong odor of alcohol
Id.) Officer Miranda asked
Appellant to step out of her vehicle, and she complied. Officer Miranda
Id. at 19-20; R.R. at 5). Appellant subsequently
failed to produce her identification or paperwork for the vehicle. Officer
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Allen conducted a pat dow
arrested Appellant for DUI.
After having the officer describe his interaction with Appellant, the
prosecutor asked Officer Miranda about his DUI detection training:
[COMMONWEALTH]: Now, do you have training in
detection of impaired drivers?
[WITNESS]: Yes, they teach us that in the
Academy.
[COMMONWEALTH]:
give you in the Academy?
[WITNESS]: We go through all the motor
vehicle laws and all the DUIs, how to detect DUIs.
[COMMONWEALTH]: I see. And have you ever made
a DUI arrest before?
[WITNESS]: Yes.
[COMMONWEALTH]: About how many times?
[WITNESS]:
[COMMONWEALTH]: And have you had occasions to
see intoxicated persons during the course of your career
and in your personal life?
[WITNESS]: Yes.
[COMMONWEALTH]: And about how many times?
[WITNESS]: About 100.
(Id. at 25-
personal experiences, the officer believed Appellant was incapable of safe
driving on the night of her arrest.
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On cross-
statements about his experiences with intoxicated persons:
[COUNSEL]: Okay. You said, one of the questions you
said on direct was that you had 200 DUI arrests?
[WITNESS]: Yes.
[COUNSEL]:
100 people intoxicated?
[WITNESS]:
(Id. at 38; R.R. at 10). Officer Miranda attempted to clarify that he was
comparing the number of intoxicated persons he had encountered during his
police career to the number of intoxicated persons he had encountered in his
personal life. Defense counsel, however, continued to press the officer with
questions about whether he had arrested individuals that he believed were
not intoxicated.
Later during cross-examination, defense counsel questioned Officer
Miranda about the amount of alcohol a person can drink before being unable
to operate a vehicle:
[COUNSEL]: Would you agree people can drink alcohol
and operate a vehicle?
[WITNESS]: No.
[COUNSEL]:
THE COURT: Give him a chance to answer the questions.
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[WITNESS]:
type of alcohol and driving, more than likely you might be
impaired.
(Id. at 55; R.R. at 14) (emphasis added).
testimony. Officer Allen testified
driving in the wrong direction on Haines Street. Officer Allen indicated that
at the time of their initial observations. During the traffic stop, Officer Allen
She was disoriented, she was moving rather slow, she kept
looking from the back to the front, she was looking around
the front. She had containers of food in the car, platters,
and she actually spilled a platter of food into the passenger
seat, the front passenger seat.
(Id. at 79; R.R. at 20).
Officer Miranda flashed a hand signal to notify Officer Allen of his belief
that Appellant was intoxicated. After Officer Miranda ordered Appellant out
of the vehicle, Officer Allen conducted the pat down search. Appellant
Id. at 82; R.R. at
was incapable of safely operating a motor vehicle on the night in question.
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On cross-examination, Officer Allen testified that there was another
first observed Appellant driving down Haines Street. In response, defense
Id. at 106;
R.R. at 27). Officer Allen explained that there were no cars on Baynton
Street, where the traffic stop occurred. Further, Officer Allen reiterated that
After the Commonwealth rested, Appellant testified on her own behalf.
Appellant denied driving down Haines Street on the night of her arrest.
Appellant said she left a restaurant on Chelten Avenue at approximately
11:30 p.m. After proceeding southbound on Chelten Avenue, Appellant
made a right turn onto Germantown Avenue, followed by a right turn onto
Rittenhouse Street. At the intersection of Rittenhouse and Baynton Streets,
Appellant claimed to have made a left turn onto Baynton Street. While
Appellant indicated that there was traffic in the area of Germantown Avenue,
Appellant did not specify whether there were other vehicles traveling on
Rittenhouse or Baynton Streets. (Id. at 121-22; R.R. at 31).
At the intersection of Baynton and Haines Streets, Appellant saw the
had been drinking. Appellant admitted telling the officer that she had
consumed one chocolate martini earlier that evening. Appellant also
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admitted that she had taken her shoes off while driving the vehicle.
Appellant explained she had been wearing high heels all night, and her feet
Id. at 125; R.R. at 32).
Following the hearing, the original Municipal Court jurist granted
about the number of intoxicated individuals he had arrested. The court
See N.T.
Hearing, 11/1/11, at 4; R.R. at 41.) Here, the Municipal Court
misc
of the DUI suspects he had arrested were not intoxicated, Officer Miranda
was attempting to explain that he had encountered approximately 200
intoxicated drivers as a police officer and another 100 intoxicated individuals
in his personal life. (See N.T. Suppression Hearing at 25-26, 38-39; R.R. at
7, 10.)
regarding the amount of alcohol an individual can consume before becoming
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went even further when he indicated, quote, no one can drink any amount of
See N.T. Hearing, 11/1/11, at 4;
R.R. at 41.) Again, Officer Miranda did not make the statement that the
See N.T. Suppression Hearing at 55; R.R. at 14.)
Regarding the number of vehicles on the road at the time of the stop,
the court ignored all evidence of record and made a finding based on the
easily accessible crime statistics for the 14th See N.T.
Hearing, 11/1/11 at 5; R.R. at 42.) We reiterate that a suppression court
must base its findings of fact solely on the evidence placed on the record
during the suppression hearing. See In re L.J., ___ Pa. ___, 79 A.3d 1073
(2013) (explaining language of Pa.R.Crim.P. 581 strongly suggests that
record of suppression hearing is intended to be complete record for
suppression issues). While Officer Miranda stated that there were no other
vehicles on the road, and Officer Allen indicated that there was one vehicle
between the officers and Appellant, both officers agreed that they never lost
that she turned off Germantown Avenue to avoid traffic, and she did not say
that she encountered any other vehicles on the road after exiting
Germantown Avenue.
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To the extent that the suppression court elaborated on discrepancies
orts, both officers testified
police reports included in the certified record make no mention of the
2
Under these circumstances, we cannot say
that a
reports.
Based upon the foregoing, the record did not support the original
evidence adduced at the suppression hearin
testimony, the original Municipal Court relied on its own confused
unrelated to the incident at issue. Absent some findings of fact actually
supported by the record, the CCP could not allow the suppression ruling to
stand. See Williams, supra. In light of the evidence establishing that the
officers witnessed Appellant committing Motor Vehicle Code violations, and
f indicia of intoxication, we conclude
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2
The certified record contains an envelope with the exhibits presented at
submitted at
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Id.
Thus, Appellant is not entitled to relief on her first issue.
In her second issue, Appellant asserts the Commonwealth did not
timely pursue its motion for recusal of the Municipal Court jurist. Appellant
contends the Commonwealth should have pursued recusal prior to the
suppression hearing; instead, the Commonwealth did not act until after the
original Municipal Court jurist had issued a ruling in favor of Appellant.
merit, because the connection between Appellant and the Municipal Court
jurist was too attenuated. Appellant maintains the fact that she had a
Facebook friendship with the jurist did not demonstrate the parties were
anything more than acquaintances, and the Commonwealth fell short of
establishing any type of bias. Appellant concludes the CCP erroneously
ree.
We review recusal issues subject to the following principles:
It is the burden of the party requesting recusal to produce
evidence establishing bias, prejudice or unfairness which
preside impartially. As a general rule, a motion for recusal
is initially directed to and decided by the jurist whose
impartiality is being challenged. In considering a recusal
request, the jurist must first make a conscientious
determination of his or her ability to assess the case in an
impartial manner, free of personal bias or interest in the
outcome. The jurist must then consider whether his or her
continued involvement in the case creates an appearance
of impropriety and/or would tend to undermine public
confidence in the judiciary. This is a personal and
unreviewable decision that only the jurist can make.
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Where a jurist rules that he or she can hear and dispose of
a case fairly and without prejudice, that decision will not
be overturned on appeal but for an abuse of discretion. In
reviewing a denial of a disqualification motion, we
recognize that our judges are honorable, fair and
competent.
Commonwealth v. White, 557 Pa. 408, 426, 734 A.2d 374, 383-84 (1999)
(quoting Commonwealth v. Abu-Jamal, 553 Pa. 485, 507, 720 A.2d 79,
89 (1998)) (internal citations omitted). Additionally,
recusal or disqualification must raise the objection at the earliest possible
Commonwealth v. Pappas, 845 A.2d 829, 846 (Pa.Super. 2004), appeal
denied, 580 Pa. 712, 862 A.2d 1254 (2004) (quoting Commonwealth v.
Stafford, 749 A.2d 489, 501 (Pa.Super. 2000)).
Instantly, the Commonwealth raised the recusal issue in its November
14, 2011 motion to reconsider the suppression ruling and new matter. In
that motion, the Commonwealth referenced a newspaper article, dated
November 5, 2011, detailing the outcome of the suppression hearing and
the Facebook relationship between Appellant and the Municipal Court jurist.
Under these circumstances, we decline Appe
the Commonwealth should have filed a recusal motion prior to the
suppression hearing. See Pappas, supra.
readily view that each of
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See
Motion to Reconsider and New Matter at 3) (internal citation omitted). The
record also includes the November 5, 2011 newspaper article that reported
demonstrated that the Municipal Court jur
case created an appearance of impropriety tending to undermine public
confidence in the judiciary. See White, supra. Thus, the CCP did not err in
removing the original jurist from the case in response to the
Commonwealt Id. Accordingly, we affirm the judgment of
sentence.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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Com. v. Parker, C.
Combined Opinion