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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILLIAM M. AMATO, : No. 738 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, January 21, 2015,
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0008405-2013
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2016
William M. Amato appeals from the judgment of sentence of
January 21, 2015, following his conviction of driving under the influence
(“DUI”) -- general impairment, 75 Pa.C.S.A. § 3802(a)(1), DUI -- highest
rate of alcohol, 75 Pa.C.S.A. § 3802(c), and summary traffic offenses. We
affirm.
The trial court has set forth the history of this matter as follows:
On July 20, 2013 at approximately 9:40 p.m.,
Lower Moreland Patrol Officer Christopher Daniel, a
nine year veteran of the force, observed a silver
Acura sedan driving erratically. It was later
discovered that this vehicle was driven by Appellant.
Although one car was in between Officer Daniel and
Appellant, the hilly terrain gave Officer Daniel a
mostly unobstructed view of Appellant’s car.
While following [Appellant], Officer Daniel
noticed Appellant’s brake lights turning on and off
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more than usual. Appellant’s car did not maintain a
consistent speed and followed the car in front too
closely. The right side of the road has a narrow
shoulder and is abutted by a ravine. Officer Daniel
saw Appellant’s vehicle cross the right fog line twice,
invoking his concern for Appellant’s safety as well as
the safety of nearby drivers. Although
Officer Daniel’s view of Appellant’s car tires was
partially obstructed, he could determine that
Appellant was over the fog line based on the
vehicle’s physical location, relative to the fog line.
Suspecting that Appellant’s erratic driving and
inability to maintain a safe distance was due to
intoxication, Officer Daniel conducted a traffic stop.
Upon speaking with Appellant, Officer Daniel
observed signs of intoxication. Appellant was
subsequently arrested for DUI. Officer Daniel read
Appellant the O’Connell Warnings[Footnote 1], then
transported Appellant to Holy Redeemer Hospital for
chemical testing. The results of the blood test
showed that Appellant’s blood alcohol concentration
(“BAC”) was .160 %.
[Footnote 1] The phrase “O’Connell
Warnings” means the officer must
specifically inform a motorist that his
driving privileges will be suspended for
one year if he refuses chemical testing,
and that the rights provided by the
United States Supreme Court’s decision
in Miranda v. Arizona, 384 U.S. 436
(1966), do not apply to chemical testing.
See Commonwealth, Dept. of
Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873, 877-78 (Pa.
1989); See also Commonwealth,
Department of Transportation v.
Ingram, 648 A.2d 285, 290 (Pa. 1994);
Commonwealth, Department of
Transportation v. Scott, 684 A.2d 539,
540-41 (Pa. 1996).
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On April 24, 2014, Appellant filed a Motion to
Suppress, which this Court heard on September 4,
2014. Appellant’s Motion to Dismiss [sic] was denied
on October 8, 2014.
On January 21, 2015, a non-jury trial was
held. Appellant stipulated to the admission of all of
[the] Commonwealth[’s] evidence and presented no
evidence on his behalf. This Court found Appellant
guilty on all counts and sentenced him to undergo
imprisonment for ninety days to five years.[1]
On January 30, 2015, Appellant filed a post
sentence motion, which this Court denied on
February 24, 2015. This appeal followed.
Trial court opinion, 4/28/15 at 1-2.
On March 12, 2015, the trial court directed appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
within 21 days; appellant timely complied on March 23, 2015. The trial
court issued a Rule 1925(a) opinion on April 28, 2015.2
1
Appellant received a sentence of 90 days to 5 years’ imprisonment on
Count 2, DUI -- highest rate of alcohol. (Notes of testimony, 1/21/15 at
11.) Count 1, DUI -- general impairment, merged for sentencing purposes.
(Id. at 10-11.) Appellant received a fine of $250 on the summary offenses.
(Id. at 11.)
2
On April 1, 2015, this court issued a rule to show cause why the appeal
should not be quashed as interlocutory, since, according to the criminal
docket, the trial court had not imposed judgment of sentence. Appellant
filed responses on April 13, 2015, and May 1, 2015, asserting that he was
sentenced on January 21, 2015, following the stipulated non-jury trial, and
that the trial court granted his request for supersedeas pending appeal.
Timely post-sentence motions were filed on January 30, 2015, and denied
on February 24, 2015. Appellant attributed the error to incorrect docketing
by the clerk’s office. After review of the record and appellant’s responses to
this court’s show cause order, it does appear that appellant was sentenced
on January 21, 2015, to 90 days to 5 years’ imprisonment and that the trial
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Appellant has raised the following issues for this court’s review:
1. Did the Trial Court err when it denied
Appellant’s motion to suppress evidence when
the arresting officer’s testimony at the
suppression hearing was not supported by the
clear footage from his patrol vehicle’s dash
cam and that his testimony, even if believed,
did not support probable cause for a motor
vehicle stop?
2. Did the Trial Court err in precluding the
Appellant from questioning the
Commonwealth’s only witness, the arresting
officer, regarding any potential fabrication of
his testimony?
Appellant’s brief at 5.3
Our standard of review where an
appellant appeals the denial of a
suppression motion is well-established:
we are limited to determining whether
the factual findings are supported by the
record and whether the legal conclusions
drawn from those facts are correct. We
may consider the evidence of the
witnesses offered by the prosecution, as
verdict winner, and only so much of the
defense evidence that remains
uncontradicted when read in the context
court granted appellant’s request for a stay of his sentence pending the
outcome of the instant appeal. (Notes of testimony, 1/21/15 at 11-12.) We
could not locate appellant’s sentencing order anywhere in the certified
record, nor does appellant’s judgment of sentence appear on the docket.
However, this appears to have been an oversight. Therefore, we will not
quash the appeal as interlocutory.
3
Two additional issues raised in appellant’s Rule 1925(b) statement and
addressed by the trial court in its opinion, challenging the weight and
sufficiency of the evidence to support his conviction of count 2, DUI --
highest rate of alcohol, have been abandoned on appeal.
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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 below were
erroneous.
Commonwealth v. Scott, 878 A.2d 874, 877
(Pa.Super.2005), appeal denied, 586 Pa. 749, 892
A.2d 823 (2005) (citations omitted).
Commonwealth v. Smith, 904 A.2d 30, 35 (Pa.Super. 2006).
In Pennsylvania, the authority that addresses the
requisite cause for a traffic stop is statutory and is
found at 75 Pa.C.S.A. § 6308(b), which provides:
(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 necessary to
enforce the provisions of this title.
75 Pa.C.S. § 6308(b). In Commonwealth v.
Feczko, 10 A.3d 1285 (Pa.Super. 2010) (en banc),
this Court, consistent with our Supreme Court’s
clarification of constitutional principles under the
Fourth Amendment and Article I, Section 8 of the
Pennsylvania Constitution, stated with respect to
§ 6308(b):
In light of our Supreme Court’s
interpretation of the current language of
Section 6308(b), we are compelled to
conclude that the standards concerning
the quantum of cause necessary for an
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officer to stop a vehicle in this
Commonwealth are settled;
notwithstanding any prior diversity on
the issue among panels of this Court.
Traffic stops based on a reasonable
suspicion: either of criminal activity or a
violation of the Motor Vehicle Code under
the authority of Section 6308(b) must
serve a stated investigatory purpose.
(footnote and citation omitted).
....
Mere reasonable suspicion will not justify
a vehicle stop when the driver’s
detention cannot serve an investigatory
purpose relevant to the suspected
violation. In such an instance, “it is
encumbent [sic] upon the 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.” [Commonwealth v.] Gleason
[567 Pa. 111], 785 A.2d [983,] 989 [(Pa.
2001)] (citation omitted)[, superseded
by statute, Act of Sept. 30, 2003, P.L.
120, No. 24, § 17 (amending
75 Pa.C.S.A. § 6308(b))].
Id. at 1290-1291 (emphasis added in Gleason).
Accordingly, when considering whether reasonable
suspicion or probable cause is required
constitutionally to make a vehicle stop, the nature of
the violation has to be considered. If it is not
necessary to stop the vehicle to establish that a
violation of the Vehicle Code has occurred, an officer
must possess probable cause to stop the vehicle.
Where a violation is suspected, but a stop is
necessary to further investigate whether a violation
has occurred, an officer need only possess
reasonable suspicion to make the stop. Illustrative
of these two standards are stops for speeding and
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DUI. If a vehicle is stopped for speeding, the officer
must possess probable cause to stop the vehicle.
This is so because when a vehicle is stopped, nothing
more can be determined as to the speed of the
vehicle when it was observed while traveling upon a
highway. On the other hand, if an officer possesses
sufficient knowledge based upon behavior suggestive
of DUI, the officer may stop the vehicle upon
reasonable suspicion of a Vehicle Code violation,
since a stop would provide the officer the needed
opportunity to investigate further if the driver was
operating under the influence of alcohol or a
controlled substance. Compare Commonwealth v.
Enick, 70 A.3d 843, 846 (Pa.Super. 2013) (probable
cause required to stop for failure to drive on right
side of roadway), Commonwealth v. Brown, 64
A.3d 1101, 1105 (Pa.Super. 2013) (probable cause
required to stop for failure to use turn signal),
Commonwealth v. Busser, 56 A.3d 419, 424
(Pa.Super. 2012) (probable cause required to stop
for failure to yield to emergency vehicles), and
Feczko, 10 A.3d at 1291 (probable cause required
to stop for failure to maintain lanes), with
Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89,
96–97 (2011) (reasonable suspicion sufficient to stop
to investigate front windshield obstruction),
Commonwealth v. Bailey, 947 A.2d 808, 812–14
(Pa.Super. 2008) (reasonable suspicion sufficient to
stop to investigate faulty exhaust system or
muffler); see also Commonwealth v. Landis, 89
A.3d 694, 703 (Pa.Super. 2014) (noting that where
trooper stopped motorist for failing to drive within a
single lane--and not to investigate possible DUI--he
needed probable cause to stop). With these guiding
principles and examples in mind, we now turn to the
examination of the Vehicle Code violation subject of
this appeal.
Commonwealth v. Salter, 121 A.3d 987, 992-993 (Pa.Super. 2015).
“[P]robable cause does not require certainty, but rather exists when
criminality is one reasonable inference, not necessarily even the most likely
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inference.” Id. at 994, quoting Commonwealth v. Spieler, 887 A.2d
1271, 1275 (Pa.Super. 2005) (quotation omitted).
Reasonable suspicion requires only that the officer
have sufficient knowledge to believe a traffic
violation has occurred in order to conduct a brief
investigative stop. See Feczko, 10 A.3d at 1291
(noting an officer may, consistent with § 6308(b),
perform a traffic stop “to secure such other
information as the officer may reasonably believe to
be necessary to enforce the provisions of [the
Vehicle Code]”).
Id.
Instantly, Officer Daniel had sufficient reasonable suspicion that
appellant was driving under the influence to justify pulling him over for
further investigation. Officer Daniel testified that he has nine years’
experience as a patrol officer and has investigated over one hundred DUI
cases. (Notes of testimony, 9/4/14 at 3-5.) He observed appellant’s vehicle
drift over the fog line twice, including once where the passenger side wheels
were completely over the line. (Id. at 6-7, 34.) Officer Daniel testified that
in that particular area of Byberry Road, there is a very narrow berm:
. . . there are various areas where it drops off
suddenly, the shoulder is not present and you go
from the fog line to maybe a foot or two of a little bit
of asphalt and it drops off into a ravine of such so it
is very dangerous in that particular area to be
drifting to the right.
Id. at 7.
In addition, Officer Daniel testified that appellant was following the
vehicle in front of him too closely and constantly flashing his brake lights:
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“The brake lights continually activated brought my attention to the vehicle.
I could tell as I was following this vehicle that it was too close to the vehicle
in front of it.” (Id. at 8.) Officer Daniel estimated that appellant was only
4-5 feet behind the vehicle in front of him. (Id. at 32.) Officer Daniel
testified that with his training and experience, he suspected that appellant
was under the influence of alcohol. (Id. at 16.) See Commonwealth v.
Angel, 946 A.2d 115, 117-118 (Pa.Super. 2008) (state trooper possessed
reasonable suspicion necessary to effectuate the traffic stop where he
observed the appellant twice cross the fog line along his lane of traffic over a
distance of one-half mile then move onto the exit ramp without using his
turn signal), citing Commonwealth v. Fulton, 921 A.2d 1239, 1243
(Pa.Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007) (finding
experienced officer who observed driver swerve over fog line three times
within 30 seconds in dense fog possessed reasonable suspicion to stop
vehicle).
Following the suppression hearing, the trial court determined that
Officer Daniel possessed reasonable suspicion to stop appellant “based on
his experience with DUI arrests, his training with detecting DUI signs and his
specific articulable observations that [appellant] committed violations of the
Motor Vehicle Code.” (Opinion and Order, 10/8/14 at 5.) The trial court
found Officer Daniel’s testimony to be persuasive and credible:
Officer Daniel saw [appellant] follow too closely and
swerve out of his lane twice toward a dangerous
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ledge. Officer Daniel also had the opportunity to
view the behavior of at least two other drivers, who
were able to safely navigate the roadway; this
provided a point of comparison for [appellant]’s
erratic driving. Officer Daniel credibly testified that
due to [appellant]’s erratic driving, he suspected
[appellant] was impaired.
Id. at 4. The trial court’s conclusions are amply supported by the record,
and we assign no error.4
To the extent appellant complains that Officer Daniel’s testimony was
not supported by the police vehicle dash cam footage, the trial court did not
rely on the dash cam footage in denying appellant’s motion to suppress:
Officer Daniel’s patrol vehicle was equipped with a
video surveillance system that recorded a portion of
the events that evening. This recording was
introduced at the suppression hearing. Due to the
poor lighting within the video, this court was unable
to see or distinguish anything pointed out by either
party except the existence of a ravine. This court
finds the video admitted into evidence has no
probative value. Therefore, this decision is based
solely on the evidence presented.
Id. at 2. At any rate, appellant cross-examined Officer Daniel extensively
regarding the dash cam footage, and any alleged inconsistencies were for
the suppression court to resolve.
4
Furthermore, Officer Daniel had probable cause to stop appellant for two
separate Motor Vehicle Code violations, “Driving on roadways laned for
traffic,” 75 Pa.C.S.A. § 3309(1); and “Following too closely,” 75 Pa.C.S.A.
§ 3310(a). Appellant was, in fact, found guilty of two counts of violating
Section 3309(1).
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We now turn to appellant’s second and final issue: that the trial court
erred in limiting his cross-examination of Officer Daniel regarding credibility.
Pennsylvania Rule of Evidence 611, “Mode and Order of Examining
Witnesses and Presenting Evidence,” provides:
(a) Control by the Court; Purposes. The court
should exercise reasonable control over the
mode and order of examining witnesses and
presenting evidence so as to:
(1) make those procedures effective
for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment
or undue embarrassment.
Pa.R.E. 611(a). “The trial court also has considerable discretion in
determining the scope and limits of cross-examination, and this Court cannot
reverse absent a clear abuse of discretion or error of law.” Commonwealth
v. Boxley, 838 A.2d 608, 615 (Pa. 2003), citing Commonwealth v. Birch,
616 A.2d 977, 978 (Pa. 1992).
Apparently, Officer Daniel had been seated in the courtroom during
defense counsel’s argument on a prior, unrelated DUI case. (Notes of
testimony, 9/4/14 at 17.) During cross-examination, counsel implied that
Officer Daniel’s testimony had somehow been tainted and/or that he had
been coached by the prosecution:
Q. You were here for the last hearing?
A. Yes.
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Q. You sat right there?
A. Yes.
Q. When I made my argument to the Judge and
you heard about a case --
MS. MAC MASTER [(Alexandria MacMaster, Esq.,
assistant district attorney)]: Objection, Your Honor,
this is irrelevant.
MR. REYNOLDS [(Coley O. Reynolds, Esq., defense
counsel)]: It is absolutely relevant.
THE COURT: I don’t know what he’s going to say. I
can’t rule on your objection because I don’t know
where he is going with this.
BY MR. REYNOLDS:
Q. You heard my argument on the last case in
regards to the Fesco [sic] case, right?[5]
A. I did.
Q. And the Assistant District Attorney told you I
never heard of that, didn’t she?
A. She did not.
Q. She said something about that case, didn’t
she? And you guys went outside --
MS. MAC MASTER: Objection.
THE COURT: Where are you going with this?
MR. REYNOLDS: I will withdraw that.
BY MR. REYNOLDS:
5
Presumably, defense counsel is referring to this court’s en banc decision in
Commonwealth v. Feczko, supra.
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Q. You and the DA went outside and talked then?
A. We did not.
Q. Did you prep right in front here?
A. We did not.
THE COURT: I am sustaining the objection. Officer,
let’s not say anything right now until I rule on this
objection. I don’t know where you are going with
this. You all can have a sidebar discussion with me
but I don’t want to hear any more of this because I
don’t understand and you’re not responding to my
statements here. So unless you will tell me, then
the objection is sustained.
BY MR. REYNOLDS:
Q. Did you meet with the District Attorney prior to
testifying today?
MS. MAC MASTER: Objection, Your Honor.
THE WITNESS: I did.
MS. MAC MASTER: Relevance. I don’t see what the
point of this is.
THE COURT: Let me see counsel.
(A conference was held in chambers, not reported.)
THE COURT: Mr. Reynolds, you may resume your
questioning.
MR. REYNOLDS: I just want to note for the record
that we had a conference in your chambers and at
that time you precluded the Defense from asking any
questions other than the following in regards to this;
whether or not this Officer changed his testimony
based on what he heard from my prior arguments.
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BY MR. REYNOLDS:
Q. Officer, did you change anything you were
going to testify to today?
A. No.
MR. REYNOLDS: Based on hearing that I would just
note my objection, Your Honor, because there is a
whole series of other questions I would want to ask
on this.
THE COURT: So noted. Any other questions?
Notes of testimony, 9/4/14 at 17-20.
Initially, we note that the conference in chambers was not reported, so
this court has no idea what appellant’s offer of proof was, or what he was
trying to prove with this line of questioning.
It is Appellant’s responsibility to supply this Court
with a complete record for purposes of appeal,
Pa.R.A.P. 1911, and we may not consider any
information which is not contained in the certified
record. Smith v. Smith, 431 Pa.Super. 588, 637
A.2d 622, 624 (Pa.Super. 1994) (‘[A] failure by an
appellant to insure that the original record certified
for appeal contains sufficient information to conduct
a proper review constitutes a waiver of the issue
sought to be examined.’); Commonwealth v.
Quinlan, 488 Pa. 255, 412 A.2d 494 (1980);
Commonwealth v. Buehl, 403 Pa.Super. 143, 588
A.2d 522 (Pa.Super. 1991).
Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.Super. 1998).
At any rate, assuming the issue is preserved for review, we would
nevertheless find no abuse of discretion. The trial court explains, “This
Court viewed Counsel’s line of inquiry as collateral to the present matter. In
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the interests of relevance and judicial economy, this Court limited
Appellant’s questioning . . . .” (Trial court opinion, 4/28/15 at 6.)
Despite Officer Daniel’s presence during defense counsel’s argument
during a prior, unrelated hearing, there is nothing in the record to suggest
that Officer Daniel’s testimony was tainted in any way or that he was told
what to say by the prosecution. Appellant’s line of questioning appears to
be mere speculation and innuendo. Appellant’s impertinent suggestion that
Officer Daniel fabricated his testimony is without support in the record. In
addition, appellant’s ability to explore any inconsistencies between
Officer Daniel’s trial testimony and his prior reports was not curtailed by the
trial court’s ruling, as he suggests on appeal. (Appellant’s brief at 18.) In
fact, appellant cross-examined Officer Daniel thoroughly regarding any
perceived differences between the affidavit of probable cause and his
testimony. (Notes of testimony, 9/4/14 at 21-25.) There is no merit here.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2016
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