Com. v. Gleason

• Decision Date: 30 November 2001
• Citation: 785 A.2d 983,567 Pa. 111
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Sean GLEASON, Appellant.
• Court: Pennsylvania Supreme Court

785 A.2d 983

567 Pa. 111

COMMONWEALTH of Pennsylvania, Appellee, v. Sean GLEASON, Appellant.

Supreme Court of Pennsylvania.

Argued January 31, 2001.

Decided November 30, 2001.

David B. Miller, Assistant Public Defender, Chester County Public Defender's Office, West Chester, for Sean Gleason.

David R. Crowley, amicus curiae, Bellefonte, for Pennsylvania Association of Criminal Defense Lawyers.

Thomas Ost-Prisco, Anthony Sarione, West Chester, for Commonwealth of Pennsylvania.

Stuart B. Suss, amicus curiae, West Chester, for Attorney General.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and SAYLOR, JJ.

OPINION

ZAPPALA, Justice.

We granted allowance of appeal in this case to determine whether an arresting officer possesses reasonable and articulable grounds to believe that a licensee violated a provision of the Vehicle Code, warranting the stop of the licensee's car, based upon his observations that the licensee's vehicle crossed the berm line by six to eight inches on two occasions for a period of a second or two over a distance of approximately one quarter of a mile. The Superior Court held that under these circumstances, an arresting officer is justified in stopping the licensee.

As a threshold matter, the Commonwealth argues that this Court lacks jurisdiction to entertain Appellant's petition for allowance of appeal from the Superior Court's order reversing the trial court's grant of his pre-trial motion to suppress. For the reasons that follow, we hold that this Court does, in fact, have jurisdiction to entertain discretionary appeals from such orders.

In Commonwealth v. Rosario, 538 Pa. 400, 648 A.2d 1172 (1994), a plurality decision of this Court, we addressed the question of whether the Superior Court had jurisdiction to entertain an appeal as of right from an order of the common pleas court reversing the Municipal Court of Philadelphia's order granting defendant Rosario's suppression motion. We held that the Superior Court lacked jurisdiction under these facts since such an appeal would be interlocutory, and thus, an appeal as of right was unwarranted. We rejected Rosario's assertion that a footnote found in this Court's decision in Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988), supported his claim that he was entitled to file an appeal as of right from the order reversing the grant of suppress. In Baker, unlike Rosario, the Superior Court, as here, had reversed an order of the common pleas court granting a suppression motion and discretionary appeal by way of a petition for allowance of appeal was filed with this Court. In discussing whether we lacked jurisdiction to entertain discretionary review, we stated the following:

We find no merit in the Commonwealth's contention that an appeal taken from appellate reversal of a suppression order is interlocutory and that the instant appeal should therefore be quashed. Appeals taken by defendants following appellate reversals of orders suppressing evidence are clearly cognizable by this Court. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

Baker, 541 A.2d at 1382, n. 1.

In rejecting Rosario's contention that this footnote afforded him the avenue to appeal as of right to the Superior Court, Justice Castille, joined by then Justice, now Chief Justice, Flaherty and Justice Papadakos, overruled Baker to the "extent this language ... suggests that appellate reversals of suppression orders are not interlocutory...." He went on to note that

[w]hile there may be instances in which an appellate court, in exercise of its discretionary powers, may entertain a challenge to the lower court's reversal of a suppression order if such a claim were properly raised before it in a petition for allowance of appeal, such is not the case here. See e.g. Pa.R.A.P. 1114. Here, a petition for allowance of appeal was not filed.

Rosario, 648 A.2d at 1175.

Likewise, the concurring opinion authored by Justice Montemuro and joined by then Chief Justice Nix, this author and Justice Cappy, distinguished between appeals as of right, as sought by Rosario, and requests for discretionary review, which was the case in Baker. The concurring opinion advocated overruling Baker in a more limited fashion than in the lead opinion, noting that it would do so to the extent that Baker "suggests that appellate reversals of suppression orders are not interlocutory and [are] appealable as a matter of right to the Superior Court in cases such as [Rosario]." Id. at 1176. The concurrence emphasized that it "[did] not believe that Baker should be overruled so as to suggest that all appellate reversals of suppression orders are interlocutory, thus precluding this Court from its longstanding practice of reviewing such orders where special or important reasons are presented." Id.

Thus, based upon the foregoing, it is clear that a majority of this Court is of the view that we may entertain discretionary review by way of a petition for allowance of appeal in a case where the Superior Court has reversed a lower court order granting suppression. As we conclude that we have jurisdiction to entertain Appellant's appeal, we now turn to the facts of this case.¹

On July 21, 1998, in the early morning hours, Officer Guy Rosato of the Westtown East Goshen Police Department was on patrol traveling westbound on the West Chester Pike, a/k/a Route 3, in East Goshen Township. The West Chester Pike is a four lane divided highway. Officer Rosato noticed a gray Mazda approximately eight to ten car lengths in front of him. He followed the vehicle and observed it cross the solid fog line on two or three occasions over a distance of approximately one quarter mile.² During the period that Officer Rosato was following the vehicle, there were no other vehicles on the roadway. Nevertheless, Officer Rosato decided to investigate as to the reason for this behavior.

Upon stopping Appellant, Officer Rosato observed signs of intoxication and performed field sobriety tests, which Appellant failed. Appellant was placed under arrest and refused to submit to blood alcohol testing. Officer Rosato then searched Appellant and his vehicle and recovered, among other things, a suspended driver's license, an uncapped syringe, and a small amount of cocaine. Appellant was charged with driving under the influence of alcohol, driving with a suspended license, careless driving, possession of a controlled substance, and possession of drug paraphernalia.

Appellant subsequently filed a motion to suppress all of the physical evidence seized by Officer Rosato based upon the assertion that the seizure stemmed from an illegal stop of his vehicle. The trial court granted Appellant's suppression motion concluding that Officer Rosato was not justified in stopping Appellant simply because he observed Appellant swerve onto the berm of the roadway two or three times. The court noted:

Given the early morning hour, the fact that there was no other traffic on the roadway and the rather momentary nature of defendant's vehicle crossing the fog line on two perhaps three occasions, the officer erred in believing he had justification to stop defendant's vehicle. The observations of Office [sic] Rosato do not warrant a stop on any cognizable legal theory.

Trial court opinion at 2 n. 1.

The Superior Court, 754 A.2d 17, in an unpublished decision with one panel member dissenting, reversed. The court noted that the Commonwealth's sole argument on appeal was that Officer Rosato possessed a reasonable suspicion to stop Appellant for violating Section 3309(1) of the Vehicle Code.³ This section provides, in relevant part:

(1) Driving within single lane.—A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made safely.

While the court conceded that there was no evidence presented at the suppression hearing demonstrating that Petitioner violated this section of the Vehicle Code, the court nevertheless found the stop to be justified based on the following:

We cannot agree ... that [Appellant's] drifting onto the berm of the highway two or three times within such a short distance failed to justify the stop in the within case. Indeed, [Appellant's] repeated inability to remain on the highway with an intersection approaching reasonably prompted Officer Rosato to "check on the operator for his erratic driving[;] [h]is condition, whether he had been drinking or possibly falling asleep."

N.T. 1/25/99 at 5-6, 13.

Slip op. at 4.

Appellant argues that the Superior Court's decision conflicts with this Court's prior decision in Whitmyer, wherein we required that before stopping a vehicle, an officer must be able to articulate specific facts which establish probable cause to believe that the vehicle or its driver was in violation of some provision of the Vehicle Code. Id. at 1116. Appellant argues that in this case the Superior Court applied a less stringent "reasonable suspicion" standard in analyzing whether the stop of Appellant's vehicle was proper rather than the reasonable and articulable grounds standard, i.e., the probable cause standard articulated by this Court in Whitmyer. We agree.

In Whitmyer, our Court granted allowance of appeal to determine whether a police officer was legally justified in stopping Whitmyer. There, the arresting officer, Trooper Thomas Kambic, was traveling south on Interstate 81 in Dauphin County when he observed Whitmyer's vehicle proceeding in the same direction. Whitmyer was behind another vehicle as the two cars approached a point on the Susquehanna River Bridge where two lanes of traffic merged into a single lane. Trooper Kambic then saw Whitmyer drive over the solid white line on the roadway and pass the vehicle in front of him before the vehicle merged into the same lane. There was, however, no evidence that...