Com. v. Lehman

• Decision Date: 24 March 2003
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Russell Edward LEHMAN, Appellant.
• Court: Pennsylvania Superior Court

820 A.2d 766

COMMONWEALTH of Pennsylvania, Appellee v. Russell Edward LEHMAN, Appellant.

Superior Court of Pennsylvania.

Argued February 13, 2003.

Filed March 24, 2003.

Paul J. Powers, Mercer, for appellant.

Samuel R. Zuck, Asst. Dist. Atty., Mercer, for Com., appellee.

Before: MUSMANNO, LALLY-GREEN and TAMILIA, JJ.

TAMILIA, J.

¶ 1 Russell Edward Lehman appeals from the February 1, 2002, forty-eight (48) hour to eighteen (18) month judgment of sentence imposed after a jury found him guilty of operating a motor vehicle with a blood alcohol content of 0.1% or greater.¹ The charge arose after appellant was discovered passed out in the driver's seat of his car, which was stopped on the side of the road with its engine running. Appellant argues (1) the results of his blood alcohol content test (BAC) should have been suppressed; (2) the evidence presented was insufficient to establish he was in physical control of the vehicle; and (3) his trial was wrongly conducted beyond the 365-day time period prescribed by Rule 600, Prompt Trial.

¶ 2 In early morning hours of August 14, 1999, Officer Robert Wagner, a five-year veteran of the Lawrence County New Wilmington Borough Police Department, was stopped by an anonymous passerby and told that about ¾ of a mile down the road, in Mercer County, there was a vehicle parked near the roadway and the driver was slumped over. The passerby expressed obvious concern for the driver's well being (N.T., Suppression Hearing, 1/10/01, at 6-7). Based on this information, Officer Wagner proceeded to the scene, located ¼ mile outside of his jurisdiction, and discovered the appellant's car, engine running, headlights on, radio blaring, parked in a closed hardware store parking lot, perpendicular to and facing the road, approximately one foot from the fog line. The driver, Officer Wagner observed, was very sweaty and slumped to the passenger's side. Id. at 8-9. These observations, coupled with the officer's inability to rouse appellant either by shouting at him or shaking him, caused Officer Wagner to fear appellant had a health problem causing his stupor. Id. at 10. When, after a few minutes, appellant finally awakened, he was confused and did not know where he was or why he was there. Id. At this point, having detected the odor of alcohol, Officer Wagner determined appellant was not in need of medical attention and therefore did not call an ambulance. Id. at 29. The officer asked for identification and, after several moments of confusion, the appellant produced his license. Id. at 11. At this point Officer Wagner returned to his cruiser and contacted the Mercer County Pennsylvania State Police because, "[he] felt the individual was under the influence and it was their jurisdiction to handle the incident." Id. at 12. Mercer County advised Officer Wagner it was unable to respond and would relay the information to the State Police barracks in New Castle, Lawrence County. The State Police asked that Officer Wagner stand by until an officer could reach the scene. Id. at 17.

¶ 3 Officer Wagner then returned to appellant's vehicle where appellant, still voicing his confusion as to where he was, asked if he could exit his vehicle. Permission was granted. As the two men chatted, Officer Wagner asked appellant if he would perform field sobriety tests.

[The Commonwealth]: And why did you ask him that?

[Officer Wagner]: I just—Basically, for my observation and practice, it was like something I did. I didn't keep notes on him or anything like that. I don't have any notes on the sobriety tests.

[The Commonwealth]: And how did you make that request of him? If you don't recall the exact words, just approximately.

[Officer Wagner]: I don't recall the exact words. I think I just asked him to perform some sobriety tests and he said that he would do them.

[The Commonwealth]: Do you recall whether it was a request rather that an order?

[Officer Wagner]: Yes, it was a request.

[The Commonwealth]: What was his response when you made that request?

[Officer Wagner]: "Sure. I'll do them."

Id. at 16 (emphasis added). "After the field sobriety tests we just stood out back of the vehicle there and was [sic] chitchatting normally and then Officer Lut[es] and Trooper Jones [both of Pennsylvania State Police New Castle Barracks, Lawrence County] came on the scene." Id. at 17.

¶ 4 At trial, Trooper Lutes testified he and Trooper Jones arrived on the scene approximately 30 minutes after they received the call from dispatch (N.T., Jury Trial, 1/15-16/02, at 42). When they arrived, Officer Wagner and appellant were standing in the parking lot and appellant's car was parked as previously described. The troopers then assumed the investigation.

¶ 5 In response to the officers' questions, appellant admitted he had been driving the car, but had no idea where he was or why. Appellant explained he had been drinking beer with a girl at a bar, the two of them left to get something to eat, and then he intended to take her home. He had no idea, however, how or why he ended up in this parking lot and alone. Id. at 43-44. Because appellant demonstrated signs of intoxication including slurred speech, excessive talking, red eyes, swaying when standing still and staggering when walking, the troopers asked appellant to perform field sobriety tests. He willingly did so, failed and was arrested for driving while under the influence. The blood sample subsequently drawn indicated a BAC of between 0.157% and 0.174%, with an average of 0.162%. Id. at 116-117.

¶ 6 On May 10, 2000, appellant filed a pretrial motion to suppress and the scheduled hearing was continued pending resolution of appellant's application for ARD (Accelerated Rehabilitative Disposition). His ARD request was denied on October 5, 2000, and a hearing on the motion to suppress was conducted January 10, 2001. The motion was denied February 9, 2001, and appellant proceeded to trial in January 2002. The jury acquitted him of being intoxicated to a degree which rendered him incapable of safe driving, in violation of section 3731(a)(1) of the Vehicle Code, but convicted him of driving while his BAC exceeded 0.1%. He was sentenced February 1, 2002, and this appeal followed.

¶ 7 Appellant argues the evidence obtained against him should have been suppressed based on the fact Officer Wagner detained him outside his jurisdiction (New Wilmington Borough), in violation of the Municipal Police Jurisdiction Act, hereinafter the "Act". See 42 Pa. C.S.A. § 8953, Statewide municipal police jurisdiction. Our standard of review for cases challenging the ruling of a suppression court follows.

When we review the ruling of a suppression court, we must first 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 the 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.

If there is sufficient evidence of record to support the suppression court's ruling and that court has not misapplied the law, we will not substitute our credibility determination for that of the suppression court judge.

Commonwealth v. Smith, 808 A.2d 215, 220 (Pa.Super.2002), quoting Commonwealth v. Palmer, 751 A.2d 223, 225-226 (Pa.Super.2000)

(citations omitted). The Act provides, inter alia, that on certain occasions, in the course of performing his duties, a police officer may cross jurisdictional lines. 42 Pa.C.S.A. § 8953. "We must construe this Act liberally to effectuate its objectives and promote justice. Any other interpretation of the Act, given the facts presented, would not be in keeping with the legislative intent of the Act as espoused by our Supreme Court in [Commonwealth v. Merchant, 528 Pa. 161, 595 A.2d 1135 (1991) ]." Commonwealth v. Eisenfelder, 444 Pa.Super. 435, 664 A.2d 151, 154 (1995) (citation omitted).

¶ 8 The section of the Act relied upon by the Commonwealth for its argument that an officer may cross jurisdictional lines when on official business follows:

(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.

42 Pa.C.S.A. § 8953(a)(5) (emphasis added). The Commonwealth's "official business" argument is part and parcel of a conjunctive standard that includes at least one of the previously stated elements; (1) having observed a crime or (2) having reason to believe a crime has been or is being committed. Reading this section of the Act in its entirety, Officer Wagner's actions may be construed as being in violation of the Act; there was no "offense" witnessed by Officer Wagner, nor did he have reason to believe one had been committed.

¶ 9 While arguably appellant is correct, Officer Wagner did cross the county line without having "seen" a crime being committed or believing a crime to have been committed, thereby exceeding his legal jurisdiction, he did so in response to what he feared was a medical emergency. He acted in his official capacity to assure a citizen's well being, an affirmative duty imposed upon him by virtue of his position as a public servant. Had Officer Wagner knowingly and intentionally ignored the citizen's report due to a line on a map, not only would he have been considered morally derelict, in today's society he would have opened himself up to a possible lawsuit. Once Officer Wagner ascertained or...