Com. v. Lagamba
| Decision Date | 30 July 1992 |
| Citation | 613 A.2d 1,418 Pa.Super. 1 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Vincent LAGAMBA, Appellee. |
| Court | Pennsylvania Superior Court |
Louis G. Stesis, Asst. Dist. Atty., Media, for Com., appellant.
Patrick J. Connors, Media, for appellee.
Before CIRILLO, POPOVICH and HOFFMAN, JJ.
This matter is on appeal by the Commonwealth from an order granting a motion to suppress. 1 We reverse.
As stated in Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 138-139 (1983):
The well established judicial principle is that in reviewing a suppression court's ruling the appellate court is bound by factual findings supported by the record. [A]nd, [it] may not substitute [its] own findings for those of the suppression court. This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence.
* * * * * *
[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant's witnesses and so much of the evidence of the prosecution as read in the context of the record as a whole remains uncontradicted. [Citations omitted]
Viewed in light of Hamlin, and inasmuch as the defense presented no witnesses, the record indicates that at 12:15 a.m. on the 21st day of October, 1991, Officers Stufflet and Soule, patrolmen for the Nether Providence Township Police Department, were on "a car stop" near the intersection of Providence and Possum Hollow Roads.
It appears that Officer Soule had stopped a Maryland motorist in the southbound lane of Providence Road for driving with inoperable lights, and he ordered a tow truck to remove the vehicle from the site. Because southbound traffic would have to traverse the northbound lane to circumvent the congestion created on the two-lane highway by the two police cruisers, tow truck and motorist's automobile, Officer Stufflet began to direct traffic in the northbound lane of travel with the use of a hand-held flashlight. Both of the officers' vehicles were situated in the southbound lane of travel with the lights and flashers activated to alert motorists of their presence.
While attempting to stop northbound traffic, Officer Stufflet observed a vehicle approaching at a speed of 25-30 m.p.h.--the posted speed was 35 m.p.h. At a distance of 25-30 feet, the officer attempted to flag-down the driver by shining his flashlight on the roadway and across the windshield of the vehicle "at least 10, 12 times." The vehicle failed to stop until it was 15 feet past Officer Stufflet. To avoid being struck, the officer jumped onto the shoulder of the road.
During this time, Officer Soule was concentrating on writing tickets for the Maryland vehicle he had stopped in the southbound lane of travel. Nonetheless, "his attention was drawn" to Officer Stufflet ("just for a brief moment") as he (Stufflet) was "forced to get out of the way" of an oncoming motorist. At this point, Officer Soule exited his vehicle to investigate who the operator was and "what [the] problem was, why he hadn't stopped."
As Officer Soule asked for the driver's license and registration card, he detected a "strong odor of alcoholic beverage on or about [the appellee's] person." As a result, the appellee was asked to exit the vehicle and two field sobriety tests were conducted in which he "had difficulty performing" 2. Thereafter, he was arrested and charged with driving while under the influence of alcohol or a controlled substance. 3 75 Pa.C.S.A. § 3731(a).
The appellee's motion to suppress was granted on the ground that the police's "stop" was illegal as lacking articulable facts giving rise to a reasonable suspicion that criminal activity was afoot. Because this was contrary to the laws of the Commonwealth, the court below suppressed any evidence seized as a result of the stop. This appeal followed.
It is the position of the Commonwealth that the police did not "stop" the appellee; 4 their interaction was a mere "encounter" authorized under the law and not "unreasonable" under the Fourth Amendment. In contrast, the court below and LaGamba are of the mind that the police did conduct a "stop" of the appellee in violation of the federal and state constitutions such that any evidence seized as a result thereof was illegal and justified the motion to suppress. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
It is well settled in this jurisdiction that:
... before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with the Motor Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or the driver are in violation of the code.
Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875, 879 (1973), citing Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Accord Commonwealth v. Janiak, 368 Pa.Super. 626, 534 A.2d 833, 834 (1987).
As is evident from the language in Swanger, the officer's actions must be premised on specific facts reflective of a probable cause to believe that a violation of the Motor Vehicle Code has occurred. The suppression court, on this aspect, ruled that "Officer Soule emerged from his vehicle without witnessing the alleged incident and without any communication from Officer Stufflet." Opinion 11/7/91 at 4. This statement appears to be buttressed by the court's "Findings of Fact" at Points 9 & 20, which read, respectively:
Officer Soule was in his patrol car issuing a citation and did not witness the incident....
Officer Soule later admitted he did not see any violation of the Motor Vehicle Code by this [appellee].
These findings of fact are the underpinnings for the court's "Conclusions of Law" that the appellee's "motor vehicle stop [was] devoid of any reasonable suspicion of criminal activity ... [, and, therefore, a]ny subsequent evidence that flowed from the illegal stop was properly suppressed." Id. at 8.
However, we are "not bound by findings wholly lacking in evidence." Hamlin, supra, 503 Pa. at 214, 469 A.2d at 139, citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). Nor are we bound by the suppression court's conclusions of law drawn therefrom. Janiak, supra, 368 Pa.Super. at 628, 534 A.2d at 834, citing Commonwealth v. Monarch, 510 Pa. 138, 507 A.2d 74 (1986); Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).
Instantly, our examination of the suppression transcript reveals that Officer Soule, contrary to the suppression court's findings of fact, did witness Officer Stufflet engaging in evasive tactics to avoid the appellee's oncoming vehicle prior to approaching LaGamba to inquire who he was and why he did not stop. To-wit, the relevant portions of the transcript provide:
BY MR. GALLANTINO [ATTORNEY FOR COMMONWEALTH]:
Q. Could you see what Officer Stufflet was doing to stop th vehicle?
[OFFICER SOULE:]
A. I just glanced up. He was waving his flashlight attempting to stop the vehicle.
Q. For how long did you see that vehicle?
A. Just for a brief minute.
* * * * * *
Q. And then what did you do after the vehicle stopped?
A. I got out of my patrol vehicle and immediately went to the operator's side of the vehicle that had almost struck Officer Stufflet.
Q. What was your purpose for getting out of your vehicle and approaching the vehicle that had stopped?
A. I wanted to find out who the operator was and what the problem was.
Suppression Hearing Transcript 9/4/91 at 31-33 (Emphasis added). On cross-examination, the discourse between Officer Soule and counsel for the appellee reads in relevant part as follows:
BY MR. GROOVER [COUNSEL FOR APPELLEE]:
Q. All right. Okay, so [Officer Stufflet] would be approximately in front of your vehicle?
A. Yes, that's correct. * * * I was able to see him, yes. * * * I just glanced up. I saw the vehicle coming. Officer Stufflet may have yelled something. I don't know what brought my attention to it but my attention was drawn to Officer Stufflet.
* * * * * *
Q. So you didn't see [the appellee's vehicle] proceeding down the road, did you?
A. No.
Q. You weren't able to observe [the appellee] prior to the time he got to this scene [--supposedly a few feet from where Officer Stufflet was standing in the southbound lane of Providence Road--] that he was doing anything unlawful?
A. No, sir. 5
Q. Now you say Officer Stufflet got out of the way. What did he do to get out of the way, sir?
A. He was forced to move quickly to the side of the road.
Q. What--okay. Now he's forced to move quickly. Did you see him make that movement?
A. Yes, just out of the corner of my eye but I did observe him make that movement.
Q. Okay. How far was the Lagamba vehicle away from him when he made that movement?
A. I would say maybe 25 to 30 feet, sir.
* * * * * *
Q. Could you indicate to His Honor when you looked up where was the Lagamba vehicle when you first saw it?
A. As I said it was approximately 25 to 30 feet from Officer Stufflet.
* * * * * *
Q. That's when you first saw him?
A. That is correct.
* * * * * *
Q. You have a police officer who's looking southbound in the middle of the road and you have a vehicle doing 25 to 30 miles an hour and how far was the Lagamba vehicle from [Officer Stufflet] when he jumped out of the way?
A. 25 to 30--just a few feet, just a few feet.
Q. Oh, he waited until the Lagamba vehicle was two or three feet away?
A. I guess he thought it was going to stop before it hit him. It wasn't going that fast. He was trying to stop the vehicle.
* * * * * *
Q. What did you do after the Lagamba vehicle stopped?
A. I got out of my patrol vehicle and went over to the Lagamba vehicle.
Q. All right. Did you say anything to Mr. Lagamba?
A. Yes.
Q. What did you...
To continue reading
Request your trial
-
Com. v. Quiles
...to support the Majority's sua sponte supplementation of the findings of fact. As this court recently stated in Commonwealth v. Lagamba, 418 Pa.Super. 1, 613 A.2d 1 (1992) citing Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 The well established judicial principle is that in reviewing a ......
-
Com. v. McElroy
...which remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 212-16, 469 A.2d 137, 138-139 (1983); Commonwealth v. Lagamba, 418 Pa.Super. 1, 3-5, 613 A.2d 1, 2 (1992); Commonwealth v. Elliott, 376 Pa.Super. 536, 542, 546 A.2d 654, 657 (1988), allocatur denied, 521 Pa. 617, 557 A.2d 72......
-
Com. v. Wood
...suspicion of criminal activity, is not required "to simply shrug his shoulders and allow...a criminal to escape." Commonwealth v. Lagamba, 418 Pa.Super. 1, 613 A.2d 1, 5 (1992). "Merely because a suspect's activity may be consistent with innocent behavior does not alone make detention and l......
-
Com. v. Pizarro
...of criminal activity, is not required "to simply shrug his shoulders and allow ... a criminal to escape." Commonwealth v. Lagamba, 418 Pa.Super. 1, 613 A.2d 1, 5 (Pa.Super.1992), appeal denied, 533 Pa. 608, 618 A.2d 399 (1992) (quoting Commonwealth v. Ferraro, 237 Pa.Super. 268, 352 A.2d 54......