Com. v. Montini

• Decision Date: 27 April 1998
• Citation: 712 A.2d 761
• Parties: COMMONWEALTH of Pennsylvania v. Richard MONTINI, Appellant.
• Court: Pennsylvania Superior Court

Page 761

712 A.2d 761

COMMONWEALTH of Pennsylvania v. Richard MONTINI, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 7, 1997.

Filed April 27, 1998.

Nicholas Mancini, Newtown, for appellant.

Troy E. Leitzel, Deputy Dist. Atty., Doylestown, for Com., appellee.

Before CIRILLO, President Judge Emeritus, and JOHNSON and HOFFMAN, JJ.

CIRILLO, President Judge Emeritus:

Richard Montini appeals from the judgment of sentence entered in the Court of Common Pleas of Bucks County. We affirm.

During the early morning hours of October 13, 1996, Doylestown Police Officer Wayne Jones was stationed in a marked police cruiser in the Mellon Bank parking lot located at the intersection of State and Main Streets in Doylestown. At approximately 2:30 a.m., Officer Jones observed Montini's red Volkswagen sedan stopped at a traffic signal at the intersection of Main and State Streets. Officer Jones then watched Montini turn onto South Main Street and encounter another vehicle that was in the process of parallel parking. Montini crossed entirely into the northbound lane of Main Street to avoid the parking car, a maneuver Jones considered excessive under the circumstances. As a result Jones decided to follow Montini. While trailing Montini for several minutes, Jones observed Montini driving in a very erratic manner. Specifically, Jones observed the following: on Oakland Avenue Montini's car "accelerated and decelerated in an abnormal fashion"; on East State Street Montini's vehicle weaved within his lane of travel and portions of the car twice crossed the double yellow lines. Immediately after Montini turned off East State Street Jones activated his emergency lights and Montini pulled his car off to the side of the road.

Upon request Montini rolled down his window and handed Jones his driver's license, registration, and insurance card. While retrieving Montini's identification, Jones smelled a strong odor of alcohol emanating from the vehicle. Jones asked Montini to exit the vehicle and then proceeded to perform several field sobriety tests.

First, Jones conducted the "index finger to the tip of the nose test." Jones instructed Montini to "stand erect, head slightly back, close your eyes, extend your arms directly to the side, parallel to the ground. And with the finger that I tell you, touch it to the tip of your nose." Montini was unable to appropriately comply, as he failed to close his eyes or extend his arms as directed even though he did touch his finger to his nose. Jones next conducted the "leg extension" test. He instructed Montini to stand with his feet together and then lift one leg approximately ten inches from the ground and hold the leg in that position until instructed to lower it. Montini also failed this test because he lowered his leg prior to being instructed to do so. Third, Jones performed the "finger counting" exercise. He directed Montini to count to five by touching each digit of one hand to the thumb of the other. Montini was unable to complete this task; Montini lost count. Finally, Jones performed the "heel-to-toe test." This test required Montini to walk seven paces on a line, each step made heel to toe. Although Montini took the requisite steps he failed to take the steps as directed, heel-to-toe.

Based upon all of these circumstances Jones concluded that Montini was incapable of safe driving and transported him to Doylestown Hospital where he submitted to a blood test at 3:24 a.m. The results of the blood test registered Montini's blood alcohol content (BAC) at .19%. Montini was charged with driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(1), and driving while his blood alcohol content was 0.10% or greater, 75 Pa.C.S.A. § 3731(a)(4). Following the denial of Montini's motion to suppress, Montini was convicted at a non-jury trial of both charges. This appeal followed. Montini presents the following issues for our consideration:

(1) Whether the trial court erred in failing to suppress evidence of the defendant's blood alcohol content based upon the arresting officer's lack of probable cause for the stop, investigation and search of the defendant?

(2) Whether the trial court erred in permitting into evidence, evidence of defendant's blood alcohol content without first presenting expert testimony concerning defendant's blood alcohol content at the time he was driving his vehicle?

(3) Whether the prosecution presented evidence sufficient to find defendant guilty of 75 Pa.C.S.A. § 3731(a)(1)?

Montini first claims that the suppression court erred in refusing to suppress evidence of his blood alcohol content. Initially, we note our standard of review of the denial of a suppression motion. When reviewing an order denying a motion to suppress evidence, we must determine whether the factual findings of the trial court are supported by the evidence of record. Commonwealth v. Jackson, 451 Pa.Super. 129, 132-34, 678 A.2d 798, 800 (1996). In making this determination, this court may only consider the evidence of the Commonwealth's witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. Additionally, it is exclusively within the province of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 90-92, 666 A.2d 323, 325 (1996). If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

Montini asserts that Jones' observations did not provide sufficient justification for subjecting him to an investigatory traffic stop. In order to make an investigatory traffic stop, an officer must possess specific and articulable facts justifying a reasonable belief that one has violated the Vehicle Code. See Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995); Commonwealth v. Leighty, --- Pa.Super. ----, 693 A.2d 1324 (1997). Here, Officer Jones observed over a prolonged period of time Montini swerve excessively to avoid a car in the midst of parallel parking, weave within his lane of travel, accelerate and decelerate in an abnormal fashion, and cross the double-yellow center line of the road. These facts are sufficient to justify the traffic stop; based upon his observations Officer Jones could reasonably believe that Montini was violating the Vehicle Code due to his observations of erratic driving. Whitmyer, supra ; see Commonwealth v. Lawrentz, 453 Pa.Super. 118, 683 A.2d 303 (1996) (officer's observations of erratic driving sufficient to support an investigatory traffic stop).

Montini asserts that even if Officer Jones lawfully stopped him, Officer Jones lacked probable cause to arrest him following his failure of the field sobriety tests. We do not agree. Considering that Officer Jones observed Montini's erratic and unsteady driving, strong emanations of alcohol from Montini's car and his person, as well as Montini's failure to pass any of the four field sobriety tests, we conclude that Officer Jones possessed probable cause to arrest Montini for driving while intoxicated. Accordingly, the suppression court did not err in refusing to suppress the evidence of Montini's BAC. Fitzpatrick, supra.

Montini next contends that the trial court erred in convicting him of violating 75 Pa.C.S.A. § 3731(a)(4). Specifically, Montini claims that the trial court should not have admitted evidence of his BAC to support his conviction under this subsection because the Commonwealth did not present expert "relation-back" testimony. ¹ Without the relation back testimony, Montini continues, the Commonwealth could not have proven beyond a reasonable doubt that he had a BAC of 0.10% at the time he was driving.

Section 3731(a)(4) of the Motor Vehicle Code provides:

Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle:

(4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater; ...

75 Pa.C.S.A. § 3731. Section 3731(a)(4) of the Motor Vehicle Code "is limited in focus" as "[i]t makes one's blood alcohol content while driving the pivotal issue." (emphasis in original). Commonwealth v. Modaffare, 529 Pa. 101, 104, 601 A.2d 1233, 1235 (1992). See also Commonwealth v. Allen, 394 Pa.Super. 127, 575 A.2d 131 (1990) (Cirillo, P.J.E., dissenting) (stressing the importance of the Commonwealth's burden of proving that defendant's BAC is 0.10% or above at the time he is driving); Commonwealth v. Slingerland, 358 Pa.Super. 531, 518 A.2d 266 (1986) (Cirillo, P.J.E., dissenting) (same).

In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992) and Modaffare, supra our supreme court recognized that "a person's blood alcohol level fluctuates with the passage of time, such that the level gradually rises after drinks have been consumed until a peak is reached roughly one hour after the drinking has ceased, and that, thereafter the level declines." Jarman, 529 Pa. at 96-98, 601 A.2d at 1231; Modaffare, 529 Pa. at 105, 601 A.2d at 1235. With this observation squarely in mind, the court iterated the general standards for determining if and when the Commonwealth would be required to proffer expert relation back testimony to secure a conviction under 75 Pa.C.S.A. § 3731(a)(4):

In cases where test results show levels of alcohol significantly above 0.10% and where blood samples have been obtained soon after suspects have been stopped, there is a very strong inference that blood alcohol levels were in the prohibited range while driving. However, ... where the blood test result barely exceeded the 0.10% level and the lapse of time between driving and the taking of the blood sample was not insignificant, the inference of guilt is weakened.

Jarman, 529 Pa. at 96-98, 601 A.2d at 1231; Modaffare, 529 Pa. at 104-06, 601 A.2d at 1235. In...