Com. v. Johonoson

• Decision Date: 26 January 2004
• Citation: 844 A.2d 556
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Franklin JOHONOSON, Appellant.
• Court: Pennsylvania Superior Court

844 A.2d 556

COMMONWEALTH of Pennsylvania, Appellee, v. Franklin JOHONOSON, Appellant.

Superior Court of Pennsylvania.

Submitted September 22, 2003.

Filed January 26, 2004.

Reargument Denied April 1, 2004.

Franklin Johonoson, Appellant, Pro Se.

Julie M. Hess, Asst. Dist. Atty., West Chester, for Com., appellee.

Nicholas J. Casenta, Asst. Dist. Atty., West Chester, for Com., appellee.

BEFORE: ORIE MELVIN, LALLYGREEN, and KELLY, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Franklin Johonoson, appeals pro se from the judgment of sentence imposed on December 18, 2002, following his conviction for Driving Under the Influence (DUI), 75 Pa.C.S.A. § 3731(a)(4). We affirm.

¶ 2 The factual and procedural history of the case is as follows. At approximately 3:00 in the morning on October 17, 2001, Pennsylvania State Trooper Mark Perloff noticed Appellant driving his vehicle on a rural road. Appellant was driving substantially lower than the speed limit, with his four-way hazard lights flashing. Appellant then pulled off the side of the road, without any signal from the Trooper. The Trooper followed Appellant off the side of the road, parked his patrol car, and then activated the lights on his car for safety purposes. The Trooper then walked up to Appellant's car. As he approached, he noticed severe damage to both sides of Appellant's car.¹

¶ 3 The Trooper began speaking to Appellant to determine whether he had recently been in an accident. The Trooper immediately noticed indicia of intoxication: a strong odor of alcohol on Appellant's breath and within the vehicle; glassy, bloodshot eyes; and labored speech. The Trooper asked Appellant if he had been in an accident, and also asked if Appellant had been drinking. Appellant responded that he had recently been in an accident, and that he had drank three Old Milwaukee beers several hours previously. Appellant failed one field sobriety test, and told Trooper Perloff that knee problems prevented him from attempting a different test. Appellant was subsequently arrested and charged with Driving Under the Influence. A breathalyzer test conducted at 4:00 a.m. revealed a blood alcohol content (BAC) level of 0.114.

¶ 4 Appellant filed a pro se suppression motion. The court held a suppression hearing on May 7, 2002. At this hearing, Appellant represented himself and testified as a witness. Appellant attempted to litigate a great number of pretrial claims unrelated to suppression, but the suppression motion itself centered primarily on Appellant's statement to police that he had been drinking. Specifically, Appellant argued that his statement should be suppressed because Appellant did not feel free to refuse to answer the Trooper's question. On May 30, 2002, the trial court denied this motion.

¶ 5 Next, on August 5, 2002, the court held a hearing on three outstanding pretrial motions. Appellant had standby counsel for this proceeding (Christian Hoey, Esq.). Appellant argued that: (1) his waiver of arraignment was invalid because it was signed by his public defender, rather than by himself personally; (2) the complaint was not timely filed; and (3) there were unreasonable delays between his arrest, preliminary arraignment, and preliminary hearing. The trial court denied these motions on September 11, 2002.

¶ 6 On September 12, 2002, Appellant filed a pro se "objection and motion" in which he raised additional suppression issues. For the first time, Appellant argued that the entire stop was illegal. Specifically, Appellant argued that after both vehicles were parked on the side of the road, the Trooper illegally "seized" Appellant by turning on his flashing lights without any prior reasonable suspicion of illegal activity. This motion was denied as untimely on November 21, 2002.

¶ 7 On October 24, 2002, Appellant filed a pro se motion to dismiss the case under Pa.R.Crim.P. 600 (formerly Rule 1100). This motion was denied on November 21, 2002.

¶ 8 The case finally proceeded to a twoday jury trial on December 17-18, 2002. Appellant represented himself, with Attorney Hoey as standby counsel. Appellant was acquitted of DUI under § 3731(a)(1) (DUI—incapable of safe driving), but was convicted of § 3731(a)(4) (DUI—driving with BAC of .10 or more). That same day, Appellant was sentenced to three to 23 months' imprisonment with credit for time served. Appellant filed pro se post-sentence motions on December 24, 2002, and a series of additional and untimely pro se motions in early April 2003. Appellant's post sentence motions were denied on April 23, 2003. This timely appeal followed.²

¶ 9 Appellant raises seven issues for our review:

1. Did the lower court abuse it's discretion when it denied this Appellant's pre-arraignment omnibus pre-trial suppression motion and claims?

2. Did the lower court abuse it's discretion by denying this Appellant any possibility of receiving a fair trial by it's failing or refusing to hold an evidentiary hearing upon three "crucial" defense motions and the claims within?

3. Did the pre-trial defense counsels render ineffective assistance, and the stand-by counsel interfere with this Appellant's defense—all to the point that this Appellant was denied and deprived of any possibility of receiving a fair trial?

4. Was evidence sufficiently presented to the jury to support the statutory foundation (as required prior to presenting the evidence to the jury) to support the statutory foundation of introducing scientific or experimental [chemical] intoxication test?

5. Did the lower court judge "testify as a fact witness" to the jury and also "lie" to the jury during this Appellant's trial?

6. Did the Affiant (Trooper Mark D. Preloff) "falsely testify" to the jury upon four material facts during trial?

7. Did two separate Assistant District Attorneys commit [prosecutorial] misconduct in this case?

Brief for Appellant at XV.

¶ 10 First, Appellant argues that the trial court erred by denying his suppression motion. Specifically, Appellant argues that he was detained without reasonable suspicion when the Trooper pulled behind him on the side of the road and activated his overhead lights. Appellant argues that all evidence stemming from the stop should be suppressed as the product of an illegal detention.

¶ 11 When reviewing rulings of a suppression court, we must determine whether the factual findings are supported by the record and the legal conclusions drawn therefrom are correct. Commonwealth v. Lehman, 820 A.2d 766, 770 (Pa.Super.2003). We are bound by the facts found by the suppression court if there is support for those findings in the record. Id. We will not substitute our credibility determination for that of the suppression court if there is sufficient evidence for the ruling. We review the court's legal decisions de novo.

¶ 12 As noted above, the trial court dismissed this suppression issue as untimely filed. Under Pa.R.Crim.P. 581(B), the defendant shall file suppression issues within an omnibus pretrial motion. "The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof." Pa.R.Crim.P. 581(D). Thus, "the rule is designed to provide one single procedure for the suppression of evidence[.]" Rule 581, official comment. A defendant may file supplemental motions to suppress, but only "unless the opportunity did not previously exist, or the interests of justice otherwise require." Pa.R.Crim.P. 581(B); Commonwealth v. Micklos, 448 Pa.Super. 560, 672 A.2d 796, 802 (1996).³ "The `interests of justice' exception provides a trial judge with discretion to excuse a party's tardy presentation of a suppression motion." Id. We review the court's decision on these matters for an abuse of discretion. Id. An abuse of discretion is not a mere error of judgment. Rather, it exists where the judge acts manifestly unreasonably, misapplies the law, or acts with partiality, bias, or ill will. Id. at 803.

¶ 13 The record reflects that in his initial motion to suppress, Appellant argued only the limited issue of whether his statement to Trooper Perloff was voluntary. Four months later, after the court had ruled on Appellant's motion to suppress, Appellant raised a supplemental motion to suppress. In this supplemental motion, Appellant argued for the first time that the entire encounter on the side of the road was an illegal investigative detention. The trial court denied this supplemental motion as untimely.

¶ 14 We agree. Appellant knew the facts and circumstances surrounding the stop. Trooper Perloff testified at the suppression hearing that he turned on his lights after pulling off to the side of the road behind Appellant. Thus, Appellant could have easily argued during the initial suppression hearing that the entire stop was the product of an illegal detention unsupported by reasonable suspicion or probable cause. Appellant did not do so. We see no error of law or abuse of discretion in the court's decision to deny Appellant's supplemental suppression motion as untimely.

¶ 15 Even if the suppression motion should not have been dismissed as untimely, we would conclude that there is no basis for suppressing the evidence in this case. This is so because Trooper Perloff did not "seize" Appellant by turning on the patrol car's overhead lights. Rather, as noted infra, this was part of the initiation of a mere encounter.

¶ 16 Our Supreme Court recently explained the three levels of interaction between citizens and police as follows:

A primary purpose of both the Fourth Amendment and Article I, Section 8 "is to protect citizens from unreasonable searches and seizures." In the Interest of D.M., 566 Pa. 445, 781 A.2d 1161, 1163 (Pa.2001). Not every encounter between citizens and the police is so intrusive as to amount to a "seizure" triggering constitutional concerns. See Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 340 (Pa.1998)

(opinion in...