Com. v. Conte

• Decision Date: 02 August 2007
• Docket Number: No. 1805 MDA 2006.,1805 MDA 2006.
• Citation: 931 A.2d 690
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Richard J. CONTE, Appellant.
• Court: Pennsylvania Superior Court

931 A.2d 690

COMMONWEALTH of Pennsylvania, Appellee v. Richard J. CONTE, Appellant.

No. 1805 MDA 2006.

Superior Court of Pennsylvania.

Argued May 1, 2007.

Filed August 2, 2007.

Sharon L. Gray, Wyomissing, for appellant.

Alisa R. Hobart, Assistant District Attorney, Reading, for Commonwealth, appellee.

BEFORE: STEVENS, KLEIN, and PANELLA, JJ.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Berks County, which convicted Appellant on one count of Driving Under the Influence of Alcohol, Highest Rate,¹ on evidence that his Blood Alcohol Content ("BAC") was .230 percent within two hours of driving. Sentenced to serve a mandatory minimum sentence of 72 hours to six months' incarceration and pay a $1,000 fine, Appellant now contends the court erroneously denied his motion to suppress. We affirm.

¶ 2 We review Appellant's challenge under the following well-established standard:

When we review the ruling of a suppression court, we must ascertain whether its factual findings are supported by the record and whether the inferences and legal conclusions drawn from those facts are reasonable. Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense that remains uncontradicted in context of the whole record. If there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are in error.

Commonwealth v. Fulton, 921 A.2d 1239,

¶ 3 The April 5, 2006 suppression hearing comprised only the uncontradicted testimony of Wyomissing Borough Police Department Patrolman Scott Schaeffer. In the early evening of November 6, 2005, Officer Schaeffer received a radio dispatch regarding a possibly disabled vehicle on the shoulder of a State Route 422 exit ramp. N.T. 4/5/06 at 5. He drove to the scene and pulled up behind Appellant's parked Jeep Cherokee — the only vehicle there at the time² — and activated his overhead lights for safety given the nighttime, highway setting. N.T. at 9, 17.

¶ 4 The uniformed officer got out of his patrol car and walked toward Appellant, who had already exited his vehicle as well. N.T. at 16. In a normal conversational tone, the officer asked Appellant "what had happened, [if] he was alright, did he need assistance, those sorts of things." N.T. at 16, 17. As Appellant replied that his jeep had a flat tire, Officer Schaeffer detected Appellant's bloodshot eyes and the odor of alcohol on his breath. N.T. at 6, 17. Appellant also seemed confused about the cause of the flat tire and damage to the corresponding wheel, prompting Officer Schaeffer to request back-up patrol and to initiate field sobriety tests. N.T. at 6-7. The officers determined Appellant failed the tests and placed him under arrest. They transported him to a local hospital for a serum BAC test, which came back at .230%. N.T. at 11; N.T. 10/5/06 at 16.

¶ 5 At the conclusion of the hearing, the suppression court gave the parties seven days to submit written argument. In his "Brief in Support of Omnibus Pretrial Motion," Appellant argued that Officer Schaeffer's arrival in full uniform, including weapon, and with overhead lights flashing on his patrol car instantly subjected Appellant to an investigative detention unsupported by reasonable suspicion. To support this argument, however, Appellant relied on assertions that he failed to offer into evidence at the hearing, such as the claim he was walking toward his girlfriend's car for a ride home when Officer Schaeffer stopped him and questioned him about his jeep. Appellant also misquoted Officer Schaeffer's answer to the defense's hypothetical question of whether the officer would have allowed Appellant to walk away if he had said he needed no assistance. "I think I would have checked on things a little bit and made sure. I don't want to put anybody's safety at risk out there at night on the highway with no phones and so forth[,]" N.T. 4/05/06 at 18, was the officer's answer. This answer became "No, I wanted to know what was going on[ ]" in Appellant's Brief.

¶ 6 The court denied Appellant's motion and, on October 5, 2006, presided over Appellant's bench trial. The Commonwealth again relied on the testimony of Officer Schaeffer to support its case. Appellant, meanwhile, presented for the first time evidence better suited for the suppression hearing — his girlfriend's testimony that she had arrived by car at the same time as Officer Schaeffer, such that Appellant was clearly in need of no assistance. Her testimony, Appellant argued, established that Officer Schaeffer thus detained Appellant as part of an unlawful investigative detention from the moment he arrived. This belated suppression argument notwithstanding, the court determined that the Commonwealth proved each element of Section 3802(c) beyond a reasonable doubt and convicted Appellant under the DUI provision.

¶ 7 Herein, Appellant raises three issues that coalesce to state a driver is instantly subjected to an investigative detention — and not a mere encounter — whenever a uniformed officer wearing a gun pulls his patrol car behind a disabled car along the highway, activates his overhead lights, and begins a dialogue with the driver. His position is without merit.

¶ 8 Three levels of interaction between citizens and police exist as follows:

A primary purpose of both the Fourth Amendment and Article I, Section 8 "is to protect citizens from unreasonable searches and seizures." Not every encounter between citizens and the police is so intrusive as to amount to a "seizure" triggering constitutional concerns. [Our courts have] noted that there are three basic categories of interactions between citizens and the police. The first category, a mere encounter or request for information, does not need to be supported by any level of suspicion, and does not carry any official compulsion to stop or respond. The second category, an investigative detention, derives from Terry v. Ohio [, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] and its progeny: such a detention is lawful if supported by reasonable suspicion because, although it subjects a suspect to a stop and a period of detention, it does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The final category, the arrest or custodial detention, must be supported by probable cause. [Our courts have] have acknowledged this approach to police/citizen encounters under both the Fourth Amendment and Article I, Section 8.

Commonwealth v. Smith, 575 Pa. 203, 836 A.2d 5, 10 (2003) (citations omitted).

¶ 9 In Commonwealth v. Johonoson, 844 A.2d 556 (Pa.Super.2004), this Court upheld the denial of the defendant's motion to suppress evidence in a case involving facts virtually identical to those in the present case. At approximately 3:00 a.m., the defendant was traveling a rural road at a very slow rate of speed with hazard lights flashing when he voluntarily pulled over to the shoulder of the road. Shortly thereafter, a Pennsylvania State Police patrol car pulled up behind the defendant with overhead lights activated. The state trooper asked the defendant what kind of trouble he was having, and, during the defendant's reply, detected about the defendant classic signs of intoxication. The state trooper...