J-S61042-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KYLE DAVID PARADISE, :
:
Appellant : No. 626 MDA 2015
Appeal from the Judgment of Sentence Entered April 1, 2015,
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0004603-2014
BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 02, 2015
Kyle David Paradise (Appellant) appeals from the judgment of
sentence imposed following his convictions of driving under the influence of
alcohol (DUI) and driving while operating privilege is suspended or revoked
(DUI-related). We affirm.
The trial court summarized the relevant factual history of this matter
as follows.
On July 27, 2014, at approximately 12:45 a.m., Officer
Bradley Reddinger of the Manheim Township Police Department
was on routine patrol in a marked police car in Lancaster
Township, Lancaster County. Manheim Township police patrol
Lancaster Township pursuant to an agreement between the two
townships. While driving on North President Avenue toward
Marietta Avenue, Officer Reddinger observed a stationary blue
Toyota Matrix in the left turn lane, preparing to make a left turn
onto Buchanan Avenue.
Officer Reddinger ran the Toyota’s license plate through his
computer system which returns information from PennDOT.
*Retired Senior Judge assigned to the Superior Court.
J-S61042-15
Officer Reddinger passed the Toyota while traveling
approximately 10 to 15 miles an hour, and observed through an
open rear window of the vehicle that a white male,
approximately 20 to 30 years old, was driving the Toyota. There
is a street lamp near the intersection of North President and
Buchanan Avenues, and Officer Reddinger was able to get a
good look at the driver for about three or four seconds. About
five to ten seconds after Officer Reddinger entered the vehicle’s
license plate into his computer, and before his patrol car reached
the intersection of North President and Marietta Avenues,
information was displayed showing that the registered owner,
Kyle David Paradise, a 30 year old male, had a DUI suspended
driver’s license.
Officer Reddinger made a U-turn to pursue the Toyota
since based on his observation he concluded the driver matched
the description of the registered owner. Officer Reddinger
activated his lights and caught up to the Toyota on Buchanan
Avenue. The Toyota pulled over in the area of Buchanan Avenue
and West End Avenue, which is outside Lancaster Township and
inside Lancaster City. Officer Reddinger did not contact the
Lancaster City Bureau of Police nor did officers from the City’s
police department respond to the traffic stop.
Officer Reddinger approached the Toyota and noticed that
[Appellant], the same male he had observed driving it on North
President Avenue, was still in the driver’s seat. [Appellant]
provided a state identification card and told Officer Reddinger
that his license was suspended for a previous DUI. Officer
Reddinger noticed the smell of an alcoholic beverage coming
from the vehicle and asked [Appellant] to step outside the
vehicle to determine whether the smell of alcohol was coming
from [Appellant] or another occupant of the Toyota. [There were
four other people in Appellant’s vehicle—a 20-to-30-year-old
male in the front passenger seat and three females in the back
seat.] Officer Reddinger and [Appellant] walked across the
street to the sidewalk adjacent to Buchanan Park.
Officer Reddinger has had training and experience in the
detection of impaired drivers. Officer Reddinger noticed that
[Appellant] was exhibiting signs of impairment in that he had
bloodshot eyes, slurred speech and an odor of an alcoholic
beverage coming from his breath. Officer Reddinger
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J-S61042-15
administered three field sobriety tests on a flat, dry, level
surface which was lit by streetlights, the Officer’s flashlight and
his patrol car spotlight. These tests were the horizontal gaze
nystagmus test (“HGN”), the walk and turn or heel to toe test,
and the one[-]leg stand test. [Appellant] showed six out of six
possible indicators for impairments on the HGN, four indicators
of impairment on the walk and turn test, and no indicators of
impairment on the one-leg stand test. Officer Reddinger
administered a preliminary breath test (“PBT”) to [Appellant]
using the Alco Sensor-FST. The Court took judicial notice that
the Alco Sensor-FST was approved by the Department of Health
as a pre-arrest breath testing device pursuant to 44 Pa. B. 4277
(July 5, 2014). The PBT showed a reading of .138 percent blood
alcohol. Officer Reddinger then arrested [Appellant] for driving
under the influence of alcohol.
Trial Court Opinion, 6/2/2015, at 2-4 (footnotes and citations omitted).
On November 14, 2014, Appellant filed a pre-trial motion challenging
the propriety of the vehicle stop and seeking to suppress the evidence
obtained therefrom. On February 2, 2015, following a hearing, the trial court
denied Appellant’s motion. A non-jury trial followed. At the conclusion of
trial, the court found Appellant guilty of both DUI and driving under
suspension. On April 1, 2015, Appellant was sentenced to a term of nine
months’ intermediate punishment, the first 30 days of which was to be
served on work release, and the remaining time on house arrest with
electronic monitoring. This timely filed appeal followed. Both Appellant and
the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant raises three issues for our review.
1. Whether reasonable suspicion to stop Appellant’s vehicle
existed where the stop was based [solely] on the fact that the
operating privilege of one of the two registered owners, a male
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J-S61042-15
age 30, was suspended and two individuals meeting the general
description of the owner, males age 20 -30, were seen sitting in
the front seat of the car by a police officer while the car was
being driven?
2. Whether the extra-territorial stop of Appellant’s vehicle in
Lancaster City by the Manheim Township Police, based [solely]
upon the facts that the operating privilege of one of the two
registered owners, a male, was suspended when two males
meeting that general description of the owner were seen in the
front seat of the car, violated the Municipal Police Jurisdiction Act
[(MPJA)], 42 PA.C.S. § 8951 et seq., and requires suppression of
the evidence obtained as a result of the stop?
3. Whether the admission of the uncalibrated test results of an
unapproved pre[-]arrest breath test device at the suppression
hearing was an abuse of discretion and under the circumstances
an error of law?
Appellant’s Brief at 6 (unnecessary capitalization and trial court answers
omitted).
Our scope and standard for reviewing an order denying a motion to
suppress is as follows:
We are limited to determining whether the lower court’s factual
findings are supported by the record and whether the legal
conclusions drawn therefrom are correct. We may consider the
evidence of the witnesses offered by the Commonwealth, as
verdict winner, and only so much of the evidence presented by
defense that is not contradicted when examined in the context of
the record as a whole. We are bound by facts supported by the
record and may reverse only if the legal conclusions reached by
the court were erroneous.
Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).
Following our review of the certified record, the parties’ briefs, and the
relevant law, we conclude that the opinion of the Honorable James P. Cullen
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J-S61042-15
states findings of fact that are supported by the record, evidences no abuse
of discretion or errors of law, and thoroughly and correctly addresses and
disposes of Appellant’s issues and supporting arguments. Accordingly, we
adopt the trial court’s opinion, filed on June 2, 2015, as our own, and affirm
Appellant’s judgment of sentence on the basis of that opinion. The parties
shall attach a copy of the trial court’s June 2, 2015 opinion in the event of
further proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2015
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IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
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OPINION SUR APPEAL
On October 24, 2014, the District Attorney of Lancaster County filed an information
charging Defendant, Kyle David Paradise, with one count of driving underthe influence of
alcohol" and one count of driving while operating privilege is suspended or revoked (DUI
related).2 On November 14, 2014, Defendant filed a pre-trial motion seeking to suppress
the evidence against him. On February 2, 2015, a hearing on Defendant's motion was held
. .
and, after the motion was denied, a non-jury trial followed. At the conclusion of the trial,
the Court found Defendant guilty of both charges.
On April 1, 2015, after a presentence investigation, Defendant was placed on the
intermediate punishment program for a total of nine months with the first 30 days to be
served on work release followed by 150 days of house arrest with electronic monitoring.
Defendant was also ordered to pay a fine of $1,750, costs and to comply with other
conditions of supervision. (N.T. 4/1/2015, pp. 12-14). On April 8, 2015, Defendant
appealed to the Superior Court. Defendant filed his statement of errors complained of on
appeal on April 22, 2015, in which he claims that the traffic stop of his vehicle was not
supported by reasonable suspicion, that the "extra-territorial" stop of his vehicle was not
175 Pa. C.S. § 3802(b).
275
Pa. C.S. § 1543(b)(1.1)(i).
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supported by probable cause and violated 42 Pa. C.S. § 8953 (a)(2) and that the Court
erred in allowing testimony of the results of a pre-arrest breath test.
Factual Background
----fhe-evidence-pres·enteu---e-stablished-th-eroHowing. OnJuiy27~2U'14, at
approximately 12:45 a.m., Officer Bradley Reddinger of the Manheim Township Police
Department was on routine patrol in a marked police car in Lancaster Township, Lancaster
County. (N.T. 2/2/2015, pp. 5-6, 12). Manheim Township police patrol Lancaster
Township pursuant to an agreement between the two townships; (Id. at 13). While driving
on North President Avenue toward Marietta Avenue, Officer Reddinger observed a
stationary blue Toyota Matrix in the left turn lane, preparing to make a left turn onto
Buchanan Avenue. (Id. at 6).
Officer Reddinger ran the Toyota's license plate through his computer system which
returns information from PennDOT. (Id. at 7). Officer Reddinger passed the Toyota while
traveling approximately 1 Oto 15 miles an hour, and observed through an open rear window
of the vehicle that a white male, approximately 20 to 30 years old, was driving the Toyota.
(Id. at 7-8). There is a street lamp near the intersection of North President and Buchanan
Avenues, and Officer Reddinger was able to get a good look at the driver for about three or
four seconds. (Id. at 8-9). About five to ten seconds after Officer Reddinger entered the
vehicle's license plate into his computer, and before his patrol car reached the intersection
of North President and Marietta Avenues, information was displayed showing that the
2
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registered owner, Ky!e David Paradise, a 30 year old male, had a DUI suspended driver's
license.s (Id. at 9-10).
Officer Reddinger made a U-turn to pursue the Toyota since based on his
_ __..o~bserva.tionJ:iacor::icludedJhec.dr:iv-er-matc/:ted-t/:te-desGr-iptior-i'-0f-the-r-egist_er-ea-0wner-;-f/d-. ----
at 10). Officer Reddinger activated his lights and caught up to the Toyota on Buchanan
Avenue. The Toyota pulled over in the area of Buchanan Avenue and West End Avenue,
. which is outside Lancaster Township and inside Lancaster City. (Id. at 10-13). Officer
Reddinger did not contact the Lancaster City Bureau of Police nor did officers from the
City's police department respond to the traffic stop. (Id. at 43-44).
Officer Reddinger approached the Toyota and noticed that Defendant, the same
male he had observed driving it on North President Avenue, was still in the driver's seat.
(Id. at 14). Defendant provided a state identification card and told Officer Reddinger that
his license was suspended for a previous DUI. (Id. at 18). Officer Reddinger noticed the
smell of an alcoholic beverage corning from the vehicle and asked Defendant to step
outside the vehicle to determine whether the smell of alcohol was coming from Defendant
or another occupant of the Toyota.4 (Id. at 17). Officer Reddinger and Defendant walked
across the street to the sidewalk adjacent to Buchanan Park. (Id. at 18, 20).
Officer Reddinger has had training and experience in the detection of impaired
drivers. (Id. at 15-16). Officer Reddinger noticed that Defendant was exhibiting signs of
3At trial, it was determined that the vehicle had a second registered owner, a female named
Angela Bio. (N.T. 2/2/2015, pp. 39-40). Ms. Blo's information did not appear on Officer Reddinger's
computer system. (Id. at 40). This fact does not affect the outcome of the case as Officer Reddinger saw
the operator for a sufficient time to tell that the driver was a male. (Id. at pp. 7-10).
4There
were four other people in Defendant's vehicle-a 20 to 30 year old male in the front
passenger seat and three females in the back seat. (N.T. 2/2/2015, p. 17, 37).
3
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impairment in that he had bloodshot eyes, slurred speech and an odor of an alcoholic
beverage coming from his breath. (Id. at 15-16, 18). Officer Reddinger administered three
field sobriety tests on a flat, dry, level surface which was lit by streetlights, the Officer's
__ __,_,_fla=s=-h=light
and his patrol car spo_tlighL.c(ld._aL19=20).-1]1ese'"tests.:.wer:e-tl:le.ct:1Gr:i:rnntal-Qa.2;e------·
nystagmus test ("HGN'\ the walk and turn or heel to toe test, and the one leg stand test.
(Id at 19). Defendant showed six out pf six possible indicators for impairment5 on the HGN,
four indicators of impairment on the walk and turn test,6·and no indicators of impairment on
the one-leg stand test." (Id. at 22, 26-27). Officer Reddinger administered a preliminary
breath test ("PBT") to Defendant using the Alco-sensor FST. (Id. at 32). The Court took
judicial notice that the Alco Sensor-FST was approved by the Department of Health as a
pre-arrest breath testing device pursuant to 44 Pa. B. 4277 (July 5, 2014). (Id. at 32-33).
The PBT showed a reading of .138 percent blood alcohol. (Id. at 33). Officer Reddinger
then arrested Defendant for driving under the influence of alcohol. (Id.).
Discussion
Defendant contends that the stop of his Vehicle was not supported by reasonable
suspicion or probable cause. In orderto establish reasonable suspicion of a Vehicle Code
violation under 75 Pa. C.S. § 6308 (b), a police officer must be able to point to specific and
articulable facts which led the officer to suspect that a violation has occurred.'
5officer Reddinger's training suggests that a person who shows at least four out of six indicators
on the HGN has a high likelihood of impairment. (N.T. 2/2/2015, p. 21-22).
6 At least two indicators of impairment on this test suggest a person is likely intoxicated. (N.T.
2/2/2015, p. 26-27).
1At least two indicators of Impairment on the one leg stand test suggest a person is likely
intoxicated. (N.T. 2/2/2015, p. 28).
4
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Commonwealth v. Holmes, 609 Pa. 1, 11-13, 14 A3d 89, 95-96 (2011). The court
considers the totality of the circumstances and must afford due weight to the specific,
reasonable inferences drawn from the facts in light of the officer's experience. Id.
Probable cause ls.a.more demanding_standar:d-than-r:easonable-SuspiGieA-ant¥exists------
"where the facts and circumstanceswithin the officer's knowledge are sufficient to warrant
a person of reasonable caution in the belief that an offense has been or is being
committed". Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014); see a/so
Commonwealth v. Gayle, 673 A.2d 927, 931 (Pa. Super. 1996). The existenceof probable
cause only requires a probability, and not a prima facie showing, of criminalactivityand the
totality of the circumstances facing the officer must be considered. Martin, 101 A.3d at
721. Section 6308(b) of the Vehicle Code provides that:
(b) Authority of police officer.--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 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 necessaryto enforce the provisions of this title.
75 Pa. C.S. § 6308(b).
The Superior Court has interpretedthis section to sometimes require that a police
officer possess probable cause and not merely reasonable suspicion to initiate a traffic
stop, depending on the investigative nature of the stop. Commonwealth v. Wilson, 111
A.3d 747, 754 (Pa. Super. 2015) (citing Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa. Super. 2010) (en bane)). Reasonablesuspicion of criminal activity or of a violation of
the Vehicle Code under section 6308(b) will not justify a traffic stop where the driver's
detention cannot serve an investigatory purpose related to the suspected violation.
5
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Feczko, 1 O A.3d at 1290-91 ("If Tetry" allows an investigative stop based on reasonable
suspicion, there must be something to investigate."); see also Commonwealth v. Sands,
887 A.2d 261, 270 (Pa. Super. 2005).
------Wher-ec~elie&effieer-&are-faeed:-with-a~nen-investigable!!_vielatien-;--they-are-required----
to possess probable cause to believe that a violation has occurred before stopping a
vehicle. Feczko, 10 A.3d at 1291 (citing Commonwealth v, Chase, 599 Pa. 80, 94, 960
A.2d 108, 116 (2008)). A "non-investlqable"violation is a violation for which evidence
thereof is not likely to be discovered by a subsequent investigation or detention of the
driver at a motor vehicle stop. See Chase, 599 Pa. at 94, 960 A.2d at 115-116; see also
Sands, 887 A.2d at 270 (notingthat a violation such as driving at an unsafe speed is non-
investigable and requires probable cause to stop a vehicle for such violation: "It is hard to
imagine that an officer following a vehicle whose driver is suspected of drivingat an unsafe
speed would discover anything further from a stop and investigation .... [TJhe officer
either does or does not have probable cause to believe there has been a violation of the
Vehicle Code. A subsequent stop of the vehicle is not likely to yield any more evidence to
aid in the officer's determination."). Vehicle Code violations such as reckless driving,
having an obscured license plate and driving at an unsafe speed are "non-Investlqable"
violations of the Vehicle Code, and probable cause is required to initiate a traffic stop
based on these violations. Wilson, 111 A.3d at 754-755.
However, reasonable suspicion is sufficient to stop a vehicle for suspected DUI
since the driver's detention almost invariably leads to further evidence of that offense such
8Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).
6
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as the strong odor of alcohol, slurred speech and blood shot eyes. Sands, 887 A.2d at
270. Likewise, when a police officer learns that the owner of a vehicle has a suspended
license, and the operator of that vehicle matches the description ofthe owner provided by
PennDOT, reasonable susP-icion exists to stop the driver_fowp.ernting_under::.acsuspended-----
license. Commonwealth v. Hilliar, 943 A.2d 984, 992 (P~. Super. 2008).
The Municipal Police Officer Jurisdiction Act ("MPJA"), 42 Pa. C. S. §§ 8951 et seq.,
provides in pertinent part:
(a) General rule.--Any duly employed municipal police officer who is within this
Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall
have the power and authority to enforce the laws of this Commonwealth or
otherwise perform the functions of that office as if enforcing those laws or
performing those functions within the territorial limits of his primary jurisdiction in
the following cases:
2) Where the officer is in hot pursuit of any person for any offense which was
committed, or which he has probable cause to believe was committed, within his
primary jurisdiction and for which offense the officer continues in fresh pursuit of
the person after the commission of the offense.
42 Pa.C.S. § 8953(a)(2).
Technical violations of the MPJA's probable cause requirement set out in section
8953(a)(2) do not always warrant the suppression of inculpatory evidence. Hilliar, 943 A.2d
at 992; Commonwealth v. Arroyo, 686 A.2d 1353, 1354 (Pa. Super. 2006); see also
Commonwealth v. O'Shea, 523 Pa. 384, 398-400, 567 A.2d 1023, 1030 (1989) (approving
a case by case determination of the appropriateness of excluding evidence obtained in
violation of section 8953 of the MPJA. depending on all the circumstances, including the
intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the
MPJA, and the prejudice to the accused).
7
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In Arroyo, a police officer stopped a vehicle at approximately 2 a.m. on the basis
that the driver appeared to be in violation of 75 Pa.C.S. § 1503 (c)(1).9 Arroyo, 686 A.2d at
1353-1354. The officer first saw the driver and initiated the_traffi.c_siop_b_y---1urn.ing_or:1-bis
patrol car llgnts wrtmnffis own JUnsafctron. la:-Rowever, me venicle travelled for another
quarter-mile and finally stopped outside the officer's jurisdiction. Id. The Superior Court
found that the stop was valid and supported at least by reasonable suspicion. Id. at 1354.
The Court held that "when an officer activates his emergency lights and initiates a stop of a
vehicle within his primary jurisdiction, the fact that the vehicle eventually comes to rest
beyond the limits of the officer's jurisdiction does not establish a violation of the Statewide
Municipal Police Jurisdiction Act. This is so even when the stop was initiated based upon a
reasonable suspicion of a violation, rather than based upon probable cause." Id.
In Hilliar, the Superior Court refused to suppress evidence arising from a traffic stop
despite finding a violation of the same probable cause requirement that Defendant
I
complains of in this case. Hilliar, 943 A.2d at 992. In Hilliar, a police offlcer.wlthin his own
jurisdiction in West York Borough, ran the defendant's license plate and determined that
the owner of the vehicle, a male, had a suspended license. Id. at 987-988. The officer
observed that the driver was also a male, and appeared to be the same age as the
owner."? Id. The officer concluded that the driver was the owner of the vehicle and
decided to stop the vehicle while it was still within the officer's jurisdiction. Id. at 988. Prior
975 Pa.C.S. § 1503 (c)(1) makes it an offense for a junior license holder (license holder under 18
years of age) to drive on a public highway from 11 p.m. until 5 a.m. unless accompanied by a spouse 18
years or older, a parent, or a person in loco parentis.
10While the arresting officer knew that the vehicle's owner was a "middle aged man", the specific
age that was provided to the officer is not stated. See Hilliar, 943 A.2d at 989-990.
8
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to the stop, another police officer, from the same jurisdiction, happened to be coming down
the road in the opposite direction and was contacted by the arresting officer while both
officers were stopped at a traffic light. Id. The other police officer was able to confirm, by
--IGGking-fmm::.the-cfr-eAt.:.0f-=-the.:.vehiele~-haHt-ie-Efriver-ap1Jeared-"tcl"be:.the-same-age-'as-'that
provided by PennDOT. Id. However, the arresting officer allowed the vehicle to travel
through an upcoming intersection and into the next jurisdiction, since he thought that it
would be safer for himself and the defendant if the vehicle would be stopped past an
upcoming intersection. Id.
The Superior Court found that there was reasonable suspicion, but not probable
cause, for the arresting officer to suspect that the defendant was driving with a suspended
license. Id. at 990. The Court noted· that section 8953(a)(2) of the MPJA applied and
required that the arresting officer possess probable cause prior to stopping the vehicle. Id.
Despite finding that the officer did not possess probable cause to believe that the
defendant had a suspended license, the Court refused to suppress the evidence arising
from the traffic stop finding· suppression to be a "remedy all out of proportion to the
violation". Id. at 992, (citing Commonwealth v. Mason, 507 Pa. 396, 407, 490 A.2d 421,
426 (1985) (holding that suppression of evidence is not an appropriate remedy for every
violation of the Pennsylvania Rules of Criminal Procedure concerning searches and
seizures)). The Court stated that suppression of the evidence would grant the defendant a
technical windfall for no good reason, and suppression was not warranted by the officer's
minor infraction of the MPJA. Id. at 992. The Court utilized the case-by-case approach"
11Commonwealth v. O'Shea, 523 Pa. 384, 398-400, 567 A.2d 1023, 1030 (1989).
9
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and noted that "the MPJA is to be construed liberally to achieve its purpose so as
'to promote public safety while maintaining police accountability to local authority; it is not
ntended.to erect imp_eoelrable_jurjs_dictio.naLwalJs_b_eoe_fiting_only_cri minals_hiddenJn..their.--. ··· ---·-··- _
s°Fiadows'~"Tct:af9W(c1t1ng
Commonwealffiv.Tehman, 582 Pa. 200, 870 A.2d 818, 820
(2005)).
At the outset, the Court notes that only reasonable suspicion, and not probable
cause, of a Vehicle Code violation is requiredto justify the traffic stop in this case. Officer
Reddinger stopped Defendant's vehicle because he suspectedthatDefendantwasdriving
with a DUI related suspended license.12 (N.T. 2/2/2015, p. 10). Since this offense is
precisely the type of violation which a subsequent stop and investigation of a vehicle's
driver is likely to confirm or dispel,13 it is unlike those "non-investigable" offenses which
require probable cause to justify a vehicle stop. Sands, supra.
Officer Reddinger possessed reasonablesuspicion that Defendantwas driving on a
DUI related suspended license. Like the officer in Hilliar, Officer Reddinger had a good
opportunity to discern that Defendant's sex and age matched the description of the
vehicle's registered owner. Although the arresting officer in Hilliar had the benefit of
another officer's observation to confirm that the driver matched the description of the
registered owner, in this case Officer Reddingerhad a clear and unobscured line of sight
from which he identified Defendant's sex and approximate age. Officer Reddingercredibly
1275 Pa.C.S. § 1543 (b}(1 ).
130fficer Reddinger requested Defendant's licensing credentials to determine Defendant's identity.
(N.T. 2/2/2015, p. 14).
10
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testified that he got a good look at Defendant, for several seconds, as he drove in close
proximity to Defendant's stationary Toyota. (N.T. 2/2/2015, pp. 7-9). Defendant's Toyota
.. __was_s.to.pp_ed_near:.a..s.t[e.et.lamp.,_andDff.i.cerJ~e.ddinger-was_ablato-telLthat.Defendant-waS-----····· --·-···-···
driving, was"a male: and was app-roximateiy.20 to 3Cl"years old ... (/d. at 7~8)·.· .Wile~ Officer ···---
Reddinger's computer relayed information that the vehicle's owner, a 30_year old male, had
a suspended license, he concluded that the driver of the vehicle was the registered owner.
Under these circumstances, this conclusion was reasonable and sufficient to establish
reasonable suspicion. Officer Reddinger's personal observation of Defendant matched the
owner's description, and Defendant's control of the vehicle suggested he was the vehicle's
owner.
Had Defendant's vehicle come to a stop within Lancaster Township, the Court's
inquiry into the legality of the vehicle stop's inception would be at an end. However, since
Defendant's vehicle crossed into Lancaster City's jurisdiction, section 8953(a)(2) of the
MPJA, requiring that Officer Reddinger possess probable cause that a motor vehicle
violation has occurred within his jurisdiction prior to stopping a vehicle outside his
jurisdiction, applies. See Hilliar, 943 A.2d at 990. Although, as in Hilliar, Officer Reddinger
did not have probable cause to believe that Defendant was driv_ing with a suspended
license before initiating the traffic stop, suppression of the evidence arising from this stop is
unwarranted.
In this case, Defendant's vehicle was stopped outside of Officer Reddinger's
jurisdiction because of the five to ten second computer delay in displaying Defendant's
license suspension. (N.T. 2/2/2015 pp. 9-11). When Officer Reddinger learned of the
11
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suspended license, he activated his emergency lights to make a U-turn on North President
Avenue to turn and stop Defendant's vehicle on Buchanan Avenue. (Id. at 10). At that
time, Defendant had alread~ turned down Buchanan Avenue and was heading toward or..; _
-----·nactalready-crosse-ctinfcrtan'castef-Cif .
Officer Reddinger, like the police officers in Hilliar and Arroyo, possessed
reasonable suspicion to stop Defendant's vehicle based on his personal observations of
Defendant while he and Defendant were both inside his own jurisdiction. He also initiated
the pursuit within his own jurisdiction. As in Hilliar and Arroyo, Officer Reddinger stopped
Defendant outside of his jurisdiction without any misconduct on the Officer's part. In Hilliar
and Arroyo, officers stopped the defendants outside their respective jurisdictions for safety
reasons and due to the defendant's refusal to stop, respectively. In this case, the short
delay between Officer Reddinger's personal observation of Defendant on the road and the
confirmation that his driver's license was suspended was attributable to the computer
delay.
Officer Reddinger activated his lights and made a U-turn in pursuit of Defendant as
soon as his computer relayed Defendant's license suspension information. (N. T. 2/2/2015,
pp. 10-11). Defendant was stopped no more than a few blocks from the border of
Lancaster Township and Lancaster City. (Id. at 12-13). In light of the Pennsylvania
Supreme Court's holding in O'Shea, supra, and the Superior Court's holdings in Hilliar and
Arroyo, it would be a "remedy all out of proportion to the violation" to suppress the evidence
due to lack of probable cause occasioned by a fortuitous computer delay over which
Officer Reddinger had no control. As the Superior Court stated in Hilliar, the MPJA is to be
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construed liberally to promote public safety without erecting impenetrable jurisdictional
walls. Accordingly, the minor violation of the MPJA here does not warrant suppression.
Defendant's final claim of error is that the Court improperly allowed testimony -··-------
-·--------------
--r-egarcling-the-resultsc0f.:.the'Preliminar\FBreath-"fest(11PB1j-:-Befehdantc-onteilas-tnanne ·
Alco-Sensor FST PBT did not "meet the requirements of 75 Pa.C.S. § 1547(c) and the
regulations issued pursuant thereto." This claim lacks merit.
The section of the Vehicle Code cited by Defendant, 75 Pa.C.S. § 1547(c), applies
to breath testing offered in evidence against a defendant at trial, but does not apply to pre-
arrest breath tests offered to establish probable cause to arrest. See Commonweaith v.
Brigidi, 607 Pa. 329, 335-336, 6 A.3d 995, 998-999 (2010). In this case, the results of the
PBT were not admitted asevldence in Defendant's non-jury trial. (N.T. 2/2/2015, pp. 99-
101 ). The Court only considered the results of the PBT at the hearing on Defendant's
suppression motion to determine whether or not Officer Reddinger had probable cause to
arrest Defendant for driving under the influence of alcohol. (N.T. 2/2/2015, pp. 97-98).
The Vehicle Code permits the use of a PBTwhich is approved by the Department of Health
for the purpose of determining probable cause to arrest. See 75 Pa.C.S. § 1547(k); Brigidi~
607 Pa. at 335-36; 6 A.3d at 998-999; see also Commonwealth v. Myrtetus, 580 A.2d 42,
47 (Pa. Super. 1990). The Court took judicial notice thatthe Alco Sensor FST is approved
by the Department of Health for use as a pre-arrest breath testing device pursuant to 44
Pa. B. 4277 (July 5, 2014). (N.T. 2/2/2015, pp. 32-33). The Court made it clear that it
would not consider the testimony regarding impairment, including the results of the PBT
elicited at the hearing on Defendant's suppression motion, at Defendant's non-jury trial.
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(Id. at 99-101 ). The Court did consider testimony regarding the tests performed on
samples of Defendant's blood to determine the presence of alcohol and the test results.
(Id. at 101-114).
-----·-····--·--- ·----------------------- ---···· ···-·-··-···
. . The Court-submits.this opinion_as.Jfla.tr:iaLco.urt.:0pinion"r:equir:edc:by~ulec..:1-925(a.)
of the Pennsylvania Rules of Appellate Procedure.
BY THE COURT:
~-r!-~
Date: June 2, 2015 UAMES P. CULLEN, JUDGE
Attest:
Copies to: Office of the District Attorney /
Christopher Patterson, Esquire
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IN THE SUPERlOR COURT OF PENNSYLVANIA
MIDDLE DISTRJCT
COMMONWEAL TH OF PENNSYLVANIA
-----------·------·----------···-·
vs. : No 626 of2015
KYLE DAVIDPARDISE
CERTIFICATE OF SERVICE
I hereby certify that I have today caused to be served two (2) copies of the
foregoing "Brief for Appellant" upon the person and in the manner indicated
below, which satisfies the requirements of Pa. R.A.P 121:
Service by hand delivery:
Julie Slabinski
Assistant District Attorney
Lancaster County Courthouse
50 N. Duke Street
Lancaster, PA 17602
Law Office of Christ
Christ her M. Patterson
Attorney for Appellant
Attorney I.D. # 2787 4
134 N. Lime Street
Lancaster, PA 1 7 602
(717) 299-2301
Date: 1/v/<