Com. v. Fulton

• Decision Date: 09 April 2007
• Docket Number: No. 296 WDA 2006.,296 WDA 2006.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Galen E. FULTON, Appellant.
• Court: Pennsylvania Superior Court

921 A.2d 1239

COMMONWEALTH of Pennsylvania, Appellee v. Galen E. FULTON, Appellant.

No. 296 WDA 2006.

Superior Court of Pennsylvania.

Argued September 19, 2006.

Filed April 9, 2007.

David Flower, Somerset, for appellant.

Jerry L. Spangler, Assistant District Attorney, Somerset, for Commonwealth, appellee.

BEFORE: STEVENS, TODD, and McCAFFERY, JJ.

OPINION BY STEVENS J.:

¶ 1 Appellant Galen E. Fulton appeals an August 10, 2005 judgment of sentence entered in the Court of Common Pleas of Somerset County. This sentence stems from Fulton's apparent inability to refrain from drinking and driving. On April 25, 2004, he was arrested while driving drunk for the fifth time, and charged with driving under the influence, driving with a suspended license, and failing to drive within a single lane.¹ Fulton's blood alcohol content was nearly three times the legal limit.

¶ 2 Before trial, Fulton filed a motion to suppress, alleging, in pertinent part, that the "the Commonwealth was without probable cause sufficient to permit the stop of Defendant's vehicle . . . ." Omnibus Pretrial Motion filed 9/8/04 at 2. A hearing was held at which time Fulton argued that the arresting trooper lacked probable cause as required by Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001) and Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995). N.T. 10/6/04 at 14. The trial court eventually denied the motion on the grounds that the stop was supported by "the requisite cause," relying on Commonwealth v. Mickley, 846 A.2d 686 (Pa.Super.2004), and distinguishing Gleason, supra.² Order filed 12/9/04.

¶ 3 On May 25, 2005, following a non-jury trial, Fulton was convicted of violating 75 Pa.C.S. § 3802(a)(1) and (c),³ 75 Pa.C.S. § 1543(b)(1.1),⁴ and 75 Pa.C.S. § 3309(1).⁵ N.T. 5/25/05 at 35. Fulton was subsequently ordered to pay fines and was sentenced to one to five years' imprisonment for the D.U.I. conviction, and a concurrent 90 days' imprisonment for the driving with a suspended license-D.U.I. related conviction.

¶ 4 On August 19, 2005, Fulton filed a post-sentence motion, again raising a claim that the arresting trooper lacked probable cause to stop him, and asserting that he was incorrectly sentenced as a fourth-time D.U.I. offender. Motion filed 8/19/05 at 1-3. A hearing on the motion was held on December 15, 2005,⁶ and the trial court subsequently granted the motion to the extent of arresting the judgment relative to Fulton's conviction under Section 3802(c), but denied it in all other respects. Order filed 1/9/06.

¶ 5 Fulton then filed the instant appeal on February 1, 2006, and has complied with a court order to file a Pa.R.A.P. 1925(b) statement of matters complained of on appeal. He raises two matters for our determination, beginning with a challenge to the denial of his suppression motion. We review such challenges 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. Commonwealth v. Lewis, 535 Pa. 501, 504, 636 A.2d 619, 621 (1994). 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. Id. 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. Id.

Commonwealth v. Petroll, 558 Pa. 565, 574-575, 738 A.2d 993, 998 (1999).

¶ 6 Viewed in the above light, the evidence shows that on April 25, 2004, Pennsylvania State Police Trooper Scott Smith approached a pick up truck driven by Fulton traveling on State Route 160 in heavy fog. N.T. 10/6/04 at 5-6. Within 30 seconds of Trooper Smith's pulling behind the truck, he observed it cross the fog line twice, and the center line once, despite the presence of oncoming traffic. Id. at 5-6, 11. Trooper Smith activated his overhead lights and stopped the vehicle. Id.

¶ 7 To support his claim that Trooper Smith lacked probable cause under these circumstances, Fulton asserts that we should apply Commonwealth v. Garcia, 859 A.2d 820 (Pa.Super.2004) (no pinpoint cite provided by Fulton), for the proposition that where a vehicle is driven outside the lane of traffic for a moment in a minor manner, stopping the vehicle is not warranted.⁷ Fulton is mistaken that Garcia is controlling however, as Garcia applied the probable cause standard enunciated in Gleason, supra. Despite being alerted to the amendments to Section 6308 during the hearing on his post-sentence motion, Fulton's argument is really only a continuation of his claim that the probable cause standard should apply.⁸ The appellant in Little, supra, made a similar claim essentially arguing that the trial court erred by applying Section 6308(b) as amended, instead of applying the previous version of the statute. Little, 903 A.2d at 1271. This Court disagreed, explaining that "[o]f course, such a claim must fail as courts are duty bound to apply all laws passed by the legislature pursuant to their plain language." Id., 903 A.2d at 1272 (citing Commonwealth v. LeBar, 860 A.2d 1105, 1111 (Pa.Super.2004); 1 Pa.C.S. § 1903(a)).

¶ 8 Even if Fulton had advanced and supported an argument under the correct standard, that Trooper Smith lacked reasonable suspicion to stop him, we would find that the evidence shows otherwise. "To establish grounds for `reasonable suspicion' ... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity." Little, 903 A.2d at 1272.

In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In the Interest of D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (2001). In making this determination, we must give "due weight . . . to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience." [Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 676 (1999)] (citation omitted). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, "even a combination of innocent facts, when taken together, may warrant further investigation by the police officer." Cook, 735 A.2d at 676.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super.2006).⁹ See also Sands, 887 A.2d at 272 (citing Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004)).¹⁰

¶ 9 Here, Trooper Smith, a policeman with more than five years' experience, saw Fulton swerve out of his lane of travel three times in a mere 30 seconds, in dense fog, on a road shared by oncoming traffic.¹¹ Under such circumstances, we conclude that Trooper Smith possessed reasonable suspicion that Fulton was violating a provision of the Motor Vehicle Code. Accordingly, the stop was legal and the trial court correctly denied Fulton's motion to suppress.¹²

¶ 10 In addition to asserting error in the denial of his suppression motion, Fulton also claims that he was erroneously sentenced as a four-time, instead of three-time, D.U.I. offender because when he pled guilty and entered the A.R.D. program following his first D.U.I. in 1995, the law stated that the guilty plea and entry into the A.R.D. program could only be used in calculating his repeat offender status for seven years. Appellant's brief at 14-16 (relying on Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985)). As the trial court correctly notes, this argument was addressed and disposed of by Commonwealth v. Tustin, 888 A.2d 843 (Pa.Super.2005), and is without merit.

¶ 11 In Tustin, the appellant argued that his due process rights were violated because he completed all sentences for a 1995 D.U.I. conviction, and that it was unconstitutional to apply the ten-year "look-back" period of 75 Pa.C.S. § 3806(b) of the Vehicle Code when he had already completed the seven-year "look-back" period under the now-repealed 75 Pa.C.S. § 3731(e). Tustin, 888 A.2d at 844-845.¹³ Like Fulton, the appellant claimed that the seven-year period set forth by Section 3731(e) had ended when that Section was still in effect, and that his subsequent conviction was improperly graded, depriving him of his due process rights. Id. 888 A.2d at 845.

¶ 12 The Tustin Court noted that such an allegation was a challenge to the legality of the appellant's sentence. Id. 888 A.2d at 845 (citing Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa.Super.2004)). The Court explained that:

When an appellant challenges the constitutionality of a statute, the appellant presents this Court with a question of law. See Commonwealth v. Atwell, 2001 PA Super 300, 785 A.2d 123, 125 (Pa.Super.2001) (citation omitted). Our consideration of questions of law is plenary. See id.[]at 125 (citation omitted). A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution. See Commonwealth v. Etheredge, 2002 PA Super 58, 794 A.2d 391, 396 (Pa.Super.2002) (citations omitted). Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion. See id.[]at 396 (citation omitted).

Tustin, 888 A.2d at 845 (quoting Commonwealth v. Howe, 842 A.2d 436, 441 (Pa.Super.2004)). The Court further noted that "[a] statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution [of the United States or this Commonwealth]; all doubts are to be resolved in favor of a finding of...