Com. v. Micklos

• Decision Date: 28 February 1996
• Citation: 672 A.2d 796,448 Pa.Super. 560
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. James P. MICKLOS.
• Court: Pennsylvania Superior Court

Page 796

672 A.2d 796

448 Pa.Super. 560

COMMONWEALTH of Pennsylvania, Appellant, v. James P. MICKLOS.

Superior Court of Pennsylvania.

Argued Nov. 2, 1995.

Filed Feb. 28, 1996.

Iva C. Dougherty, Assistant District Attorney, Reading, for Commonwealth, appellant.

Robert S. Trotuer, Allentown, for appellee.

Before ROWLEY, President Judge, ^* and TAMILIA, KELLY, POPOVICH, HUDOCK, JAMIESON, ^** CERCONE, BROSKY and OLSZEWSKI, JJ.

CERCONE, Judge:

We considered this case en banc primarily to determine whether the Commonwealth may appeal from an order of court which granted a criminal defendant's suppression motion and concurrently dismissed all charges filed against that defendant, thereby preventing the Commonwealth from pursuing its right to appeal the adverse rulings of a suppression court. After reviewing the circumstances of this case in light of the applicable law, we conclude that the challenged Commonwealth appeal does not implicate principles of double jeopardy.

On April 24, 1993, at approximately 10:10 p.m., members of an ambulance crew for the Kutztown Basic Life Support Unit, saw the driver of a tan Ford Ranger pickup truck, appellee James P. Micklos, swerve across the center line on State Route 222 and nearly collide with a car. N.T. 1/11/94 at 3-4. The crew followed the truck for about one mile, monitoring the driver's erratic weaving motions, and then radioed local police. N.T. 1/11/94 at 5-6. Patrolman Thomas Glass, a part-time police officer for the Fleetwood Police Department, responded to the call and joined the ambulance near the intersection of Routes 222 and 662. N.T. 1/11/94 at 15. Once the crew chief pointed to the vehicle that had been swerving, Officer Glass pulled in behind the truck and immediately activated his emergency lights and siren to alert the driver to pull off the road. The driver continued at a slow speed for two and one-half miles before ultimately complying. N.T. 1/11/94 at 16-17. Because the vehicles were entering into the jurisdiction of the Northeastern Berks Regional Police Department, Officer Glass requested that department's assistance. Sergeant Michael Weiser responded to the request within a matter of minutes. N.T. 1/11/94 at 19.

Officer Glass demanded appellee's license, insurance and registration and, after some difficulty, appellee produced that information. N.T. 1/11/94 at 18. According to Sergeant Weiser, appellee exuded a moderate odor of alcohol, and appellee's eyes were bloodshot. N.T. 1/11/94 at 32. Because Officer Glass was not certified to conduct field sobriety tests, he deferred to the experience of Sergeant Weiser. N.T. 1/11/94 at 19. After appellee failed these sobriety tests, the officers arrested him and escorted him to a DUI processing center where his blood alcohol content was determined to be 0.140%. ¹ N.T. 1/11/94 at 47. At no time did either officer personally observe appellee's erratic driving.

The Honorable Jeffrey K. Sprecher presided over a non-jury trial. At the close of testimony, defense counsel asked the trial court to "address the issue of probable cause to stop the vehicle." N.T. 1/11/94 at 75. The trial court inquired as to whether the "issue of probable cause [can] be raised at the time of trial if it's not raised at the time of suppression? Is it waived?" N.T. 1/11/94 at 77.

After receiving the parties' briefs on that issue, the lower court, on March 15, 1994, issued Findings of Fact and Conclusions of Law in Disposition of Defendant's Omnibus Pretrial Motion. The trial court concluded that Patrolman Glass did not have probable cause to stop appellee's vehicle and that the evidence gathered as a result of the improper stop must be suppressed. Findings of Fact and Conclusions of Law in Disposition of Defendant's Omnibus Pretrial Motion filed March 15, 1994 at 2. Consequently, the court issued an order on that same date granting "Defendant's oral suppression motion" and concurrently dismissing all charges. Trial court order filed March 15, 1994.

On appeal from that order, the Commonwealth argued that the lower court erred in considering an oral suppression motion presented after the close of evidence, in suppressing evidence, and in dismissing the charges after granting the suppression motion. Although the trial judge defended his grant of the suppression motion, he conceded that he had erred in dismissing the charges. Trial court opinion dated June 15, 1994 at 4. A majority of a panel of this court declined to address the issues raised in the Commonwealth's appeal after concluding that a remand to the trial court would place appellee in double jeopardy. Commonwealth v. Micklos, (slip opinion filed March 29, 1995 at 4) (Johnson, J. dissenting). We granted the Commonwealth's petition for reargument before this Court en banc.

Before considering the substance of the issues raised on appeal, we wish to address a discrepancy in the record. The trial court, in its Findings of Fact, made the following observation:

At the commencement of the bench trial, Mr. Micklos made an oral motion to suppress the evidence gained from the allegedly illegal stop of his vehicle. The Commonwealth protested that this suppression motion was untimely filed pursuant to Rule 323 of the Pennsylvania Rules of Criminal Procedure and should not be heard. Counsel agreed that the matter should be briefed.

In an effort aimed at judicial economy and the convenience of witnesses, it was decided that the taking of evidence not be delayed pending decision on the timeliness of the suppression motion. It was agreed that if it was determined that the content of the suppression motion was deemed waived by Criminal Procedure Rule 323 then the proffered evidence would constitute the bench trial and an appropriate verdict would be rendered. If, on the other hand, the suppression motion was ruled timely then the evidence would be considered first as to its admissibility. The decision on the suppression motion would then dictate what evidence, if any, would be considered as to the bench trial.

Findings of Fact and Conclusions of Law in Disposition of Defendant's Omnibus Pretrial Motion filed March 15, 1994 at 1. Despite an exhaustive review of the record certified to this Court on appeal, including the notes of testimony, we have been unable to locate any oral suppression motion made by appellee at the beginning of trial. Nor do the docket sheets refer to that suppression motion.

An appellate court is bound by a suppression court's findings of fact if those findings are supported by the record. Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992) (quoting Commonwealth v. Stine, 372 Pa.Super. 312, 314, 539 A.2d 454, 455 (1988)). We are not bound by factual findings wholly lacking in evidence. Id. For purposes of appellate review, what is not of record does not exist. Commonwealth v. Dietterick, 429 Pa.Super. 180, 188, 631 A.2d 1347, 1351 (1993), appeal denied, 538 Pa. 608, 645 A.2d 1312 (1994). Consequently, we must proceed under the assumption that defense counsel first presented the motion to suppress at the close of testimony.

Preliminarily, we must determine whether the double jeopardy clauses of the Federal and State Constitutions ² bar a Commonwealth appeal from an order granting a defendant's suppression motion and concurrently dismissing all charges filed against that defendant. In general, the double jeopardy clause protects a defendant from being harassed by multiple prosecutions for the same wrongful act and against multiple punishments for the same crime. Commonwealth v. Rightley, 421 Pa.Super. 270, 276, 617 A.2d 1289, 1292 (1992). The protections afforded by the double jeopardy clauses of the United States and Pennsylvania Constitutions are co-extensive. Commonwealth v. Lively, 530 Pa. 464, 467, 610 A.2d 7, 8 (1992). In a criminal jury trial, jeopardy attaches when the jury is sworn. In a bench trial, however, jeopardy attaches when the trial court begins to hear the evidence. Commonwealth v. Metzer, 430 Pa.Super. 217, 231 n. 4, 634 A.2d 228, 234 n. 4 (1993).

According to the trial court, jeopardy never attached in this case. Specifically, the trial judge claims that his "decision to hear the suppression motion, and the dismissal of charges ruling prohibiting introduction of evidence stemming from the illegal stop, means, in effect, that a bench trial was never reached." Trial court opinion dated June 15, 1994 at 3. We cannot agree. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-1355, 51 L.Ed.2d 642 (1977) (trial court's characterization of its action is not determinative).

This court has previously been asked to consider whether a lower court proceeding constituted a suppression hearing or a trial in assessing the propriety of a Commonwealth appeal. Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1989). In Jung, a jury had previously found appellee not guilty of assault. During that trial, the Commonwealth introduced into evidence a taped telephone conversation. Appellee, the recorder of that conversation, was subsequently charged with violations of the Wiretap and Electronic Surveillance Control Act and, after waiving his right to a jury, proceeded to a second trial. Id. at 439-40, 531 A.2d at 499.

At that second trial, the lower court ordered the Commonwealth to call its first witness. In a requested offer of proof, the Commonwealth revealed that the witness would be used to introduce the tape and a transcript thereof into evidence. Id. at 440, 531 A.2d at 499. The trial court ruled that the Wiretap Act did not apply to the conduct of private citizens and sustained appellee's objection to the introduction of the tape. After denying the Commonwealth's request to appeal that ruling, the trial court found appellee not guilty and dismissed the charges. Id.

On appeal, the Commonwealth characterized appellee's objection as a suppression motion and the proceeding below as a pre-trial...