Com. v. Chernosky

• Decision Date: 27 April 2005
• Citation: 874 A.2d 123
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Kimberly CHERNOSKY, Appellee.
• Court: Pennsylvania Supreme Court

874 A.2d 123

COMMONWEALTH of Pennsylvania, Appellant v. Kimberly CHERNOSKY, Appellee.

Superior Court of Pennsylvania.

Argued March 9, 2005.

Filed April 27, 2005.

Nicholas J. Casenta, Assistant District Attorney, West Chester, for Commonwealth appellant.

William R. Hagner, Paoli, for appellee.

Before: HUDOCK, FORD ELLIOTT, JOYCE, ORIE MELVIN, KLEIN, BENDER, BOWES, GANTMAN, and PANELLA, JJ.

OPINION BY BOWES, J.:

¶ 1 This appeal by the Commonwealth is from the trial court's decision to grant a motion to suppress evidence filed by Appellee, Kimberly Chernosky. We reverse.

¶ 2 Initially, we examine the pertinent standard of review:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts. Commonwealth v. Keller, 823 A.2d 1004, 1008 (Pa.Super.2003), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003) (citation omitted).

Commonwealth v. Gaul, 867 A.2d 557, 559 (Pa.Super.2005)

¶ 3 In accordance with these principles, we recite the following facts as integral to the ensuing legal discussion. At approximately 1:00 a.m. on August 16, 2002, off-duty Tredyffrin Township Police Officer Michelle Major was traveling eastbound on Yellow Springs Road, a winding two-lane road, approaching Indian Run Road when she came upon a silver-gray Volkswagen Jetta traveling at a "very slow speed" in the same direction. N.T. Suppression Hearing, 1/28/03, at 7. As Officer Major overtook the Jetta, it suddenly accelerated to forty to forty-five miles per hour, the speed limit. As the Jetta continued eastbound, Officer Major saw it travel off the right side of the road onto the shoulder and "almost" strike a telephone pole. Id. at 7. As Officer Major continued to follow the Jetta, she noticed that it went "across the double yellow line" and swerve "back over to the right side of the roadway" on more than one occasion. Id. at 9. Officer Major plainly testified that the car "went to the left side of the road, across the double yellow line and also to the right shoulder, the right side of the road." Id. at 22.

¶ 4 Based on these observations, Officer Major telephoned 911 and requested that an officer intercept the Jetta, which she continued to follow over the course of several different roads while keeping the radio dispatcher informed of her location. During this time, the Jetta "did not drive in a single lane and drifted over to the left and right side of the road continually." Id. at 11. Officer Major could not recall whether there were other vehicles on the road. After approximately five minutes, the Jetta pulled into a private parking lot, and Officer Major stopped on the adjacent public road. Then, Officer Major saw a marked Tredyffrin Township police cruiser, which obviously was responding to her 911 call, and Officer Major signaled that the Jetta was the car to be investigated.

¶ 5 Police Officer Michael Carsello was driving the marked cruiser and heard the radio dispatch that "an off-duty Tredyffrin Township Police Officer was following an erratic driver," and he had followed the dispatcher's instructions to the parking lot. N.T. Suppression Hearing, 2/27/03, at 5. Officer Carsello saw Officer Major point to the stopped Jetta. Officer Carsello approached the vehicle and immediately asked the driver, Appellee, for her license, insurance, and registration. Appellee displayed slurred and rambling speech and had a strong odor of alcoholic beverages on her breath. When asked how much alcohol she had consumed, Appellant responded, "[P]robably around five drinks." N.T. Suppression Hearing, 1/28/03, at 30. Appellee exited the car, failed administered field sobriety tests, and was arrested for driving under the influence of alcohol. Officer Carsello testified that the parking lot where Appellee was arrested was located in Willistown Township approximately a "couple hundred feet" from the border of Tredyffrin Township. Id. at 36. In rebuttal, Appellee testified that the border was located six-tenths of a mile from the lot.

¶ 6 Following her arrest, Appellee filed a pretrial motion to suppress all evidence flowing from Officer Carsello's interdiction. The suppression court granted that motion based solely on its conclusion that Appellee's seizure was invalid because Officer Carsello did not personally "observe the Defendant's faulty driving." Trial Court Opinion, 4/3/03, at 6. The court concluded specifically that "Officer Major had probable cause to believe that the driving had violated the Vehicle Code," but it granted Appellee's suppression motion because Officer Major's "knowledge was not transferred to Officer Carsello." Id. at 7. This appeal by the Commonwealth followed.

¶ 7 As noted, the trial court's decision to suppress the evidence in this case was premised on the fact that Officer Carsello had not personally observed the traffic violations in question. We are constrained to conclude that the suppression court's legal conclusion in this respect was erroneous. The record clearly indicates that Officer Carsello was relayed the information that another officer sought Appellee's investigation based on that officer's observations. While Officer Major's specific observations were not relayed over the police broadcast, once Officer Carsello arrived at the parking lot to investigate, Officer Major pointed to Appellee's vehicle as containing the suspect.

¶ 8 It is entirely permissible for an officer to engage in the investigation of a suspect based on the observations of another officer even when the officer conducting the investigation has not been supplied with the specific facts needed to support the seizure; however, the officer who made the observations must have the necessary facts to support the ordered interdiction. See United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (police may conduct investigatory stop in reliance on another police department's wanted flyer as long as flyer was issued based on articulable facts supporting reasonable suspicion); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972) (officer making warrantless arrest pursuant to order from superior need not have probable cause for arrest provided superior had information necessary to support probable cause to order arrest). This precept flows from the realities of police investigation, which often relies upon the cooperation of many police officers.

¶ 9 Commonwealth v. Bolton, 831 A.2d 734 (Pa.Super.2003) illustrates the propriety of the police investigation in the instant case. In Bolton, the defendant was being followed by a police officer, who did not observe any traffic violations but who did run the license plate number of the defendant's car through a National Crime Information Center ("NCIC") computer check. That check revealed that the car the defendant was operating did not have insurance. The officer stopped the vehicle and discovered through another NCIC check that the defendant did not have a driver's license.

¶ 10 We upheld the validity of the stop of the vehicle based on its violation of the Motor Vehicle Code's requirement of insurance for all registered vehicles. We noted that a report from the NCIC consistently has been held to support a probable cause determination that a crime was committed even though the officer who conducted the seizure did not have knowledge of the specific facts upon which the report was issued. See also Commonwealth v. Cotton, 740 A.2d 258 (Pa.Super.1999). Similarly, an officer is permitted to conduct a seizure based upon a police radio broadcast when directed to perform the seizure by an officer in possession of facts sufficient to justify the interdiction or under other circumstances not here relevant. Commonwealth v. Sanchez, 416 Pa.Super. 160, 610 A.2d 1020 (.1992).

¶ 11 In the present case, Officer Carsello received a broadcast to conduct an investigation of a car and was directed through the broadcast to the location of the car. Once at that location, Officer Major then gave Officer Carsello a hand signal, specifically directing him to investigate Appellee's car. Thus, in this case, Officer Carsello was conducting an investigatory detention of Appellee based upon the observations of Officer Major. We now must direct our attention to whether Officer Major's observations provided probable cause to support Appellee's seizure.¹ In so doing, we repeat that the suppression court specifically found that Officer Major did have probable cause to stop Appellee's car.

¶ 12 The Supreme Court's seminal pronouncements in Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001), and Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995), provide the starting point for our analysis. Pursuant to Gleason, a traffic stop is justified if a police officer has probable cause to believe that a violation of the Motor Vehicle Code has occurred. See 75 Pa.C.S. § 6308(b). Under Gleason and Whitmyer, a police officer must articulate the specific facts he possessed at the time of the questioned stop that provide probable cause to believe that the vehicle or the driver was in violation of a specific provision of the Motor Vehicle Code.

¶ 13 In Whitmyer, when merging with other traffic, the motorist crossed briefly onto a solid white line in a manner that was neither careless nor reckless. While police opined that the motorist was speeding, the motorist had not been clocked for three-tenths of a mile, as required by the provision of the Motor Vehicle Code related to speeding, 75 Pa.C.S....