Com. v. Phinn

• Decision Date: 16 October 2000
• Citation: 761 A.2d 176
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Delroy PHINN, Appellee.
• Court: Pennsylvania Superior Court

761 A.2d 176

COMMONWEALTH of Pennsylvania, Appellant, v. Delroy PHINN, Appellee.

Superior Court of Pennsylvania.

Submitted June 26, 2000.

Filed October 16, 2000.

David W. Lupas, Asst. Dist. Atty., Wilkes-Barre, for Commonwealth, appellant.

Demetrius W. Fannick, Kingston, for appellee.

BEFORE: CAVANAUGH, DEL SOLE and MUSMANNO, JJ.

CAVANAUGH, J.:

¶ 1 The Commonwealth appeals from the trial court's order of suppression.¹ We affirm. ¶ 2 We must first determine whether the issues raised by the Commonwealth are properly before us. On January 3, 2000, the court directed the Commonwealth to file a statement of matters complained of on appeal within fourteen days pursuant to Pa.R.A.P.1925(b). The Commonwealth's statement, filed on January 19, 2000, appears to be untimely and the trial court did not file a Rule 1925(a) Opinion in this matter. Under Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the failure to timely file a 1925(b) statement of matters complained of on appeal results in the waiver of those issues for purposes of appellate review. The rule announced in Lord has been strictly applied by our appellate courts. See In Re Estate of Daubert, 757 A.2d 962, 2000 PA Super 219, ¶ 3

(August 3, 2000) (citing Commonwealth v. Steadley, 748 A.2d 707 (Pa.Super.2000),

Giles v. Douglass, 747 A.2d 1236 (Pa.Super.2000),

Commonwealth v. Ortiz, 745 A.2d 662 (Pa.Super.2000), and Commonwealth v. Overby, 744 A.2d 797 (Pa.Super.2000)).

¶ 3 The court's order of January 3, 2000, directing the Commonwealth to file a statement was docketed that same date by the clerk of courts pursuant to Pa. R.Crim.P. 9025 which provides, "Upon receipt of an order from a judge, the clerk of courts shall immediately docket the order and record in the docket the date it was made." Rule 9025 further requires the clerk of courts to "forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney, and shall record in the docket the time and manner thereof." (Emphasis added). Pa.R.A.P. 108(a) provides that the date of entry of an order shall be the day the clerk of courts "mails or delivers copies of the order to the parties."

¶ 4 The instant docket contains no information regarding when or how the court's order was furnished to the Commonwealth. Assuming the clerk of courts mailed or personally delivered a copy of the order to the Commonwealth on January 3, 2000, the Commonwealth's statement filed January 19, 2000, would be one day late, taking into account the Martin Luther King, Jr. holiday which fell on January 17, 2000. However, due to lack of recordation of the relevant information, we cannot with any certainty fix the date of entry of the order. Thus, there is no basis for us to properly conclude there existed a failure to comply with the order's directive to file a statement "within fourteen days" and we will proceed to our review of the Commonwealth's issues on appeal. See generally Frazier v. City of Philadelphia, 557 Pa. 618, 735 A.2d 113 (1999)

(where docket did not reflect actual date of notice of entry of order appealed from, Commonwealth Court's quashal of appeal for untimeliness reversed and matter remanded for consideration of appeal on the merits).

¶ 5 On June 24, 1999, appellee, Delroy Phinn, was traveling west on Interstate 80 in Luzerne County as a passenger in a brown Honda Accord registered in his name and bearing Ohio license plates. Trooper Jeffrey A. Taylor of the Pennsylvania State Police observed appellee's vehicle following very closely behind a tractor-trailer. He testified, "This vehicle was - you wouldn't have been able to fit a motorcycle between them. He was right on his bumper." Trooper Taylor stopped the Accord for violating the following provision of the Vehicle Code:

§ 3310. Following too closely

(a) General rule.—The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.

75 Pa.C.S.A. § 3310(a).

¶ 6 In a warrantless search conducted after the stop, fourteen pounds of marijuana were found inside a garment bag located in the trunk of the vehicle. At the suppression hearing, appellee argued, among other things, that the distance between the vehicles as observed by the officer, without more, did not set forth articulable and reasonable grounds to suspect a violation of Section 3310. The court reluctantly suppressed the evidence pursuant to the rule of stare decisis, following as dispositive a published opinion of the Court of Common Pleas of Carbon County involving the same legal issue under strikingly similar factual circumstances which was affirmed by a memorandum decision of this court on the basis of the lower court's opinion.

¶ 7 In Commonwealth v. Samuel, 23 Pa. D & C 4th 29 (1995), the Carbon County court suppressed drugs and paraphernalia confiscated during a warrantless search by the Pennsylvania State Police of a blue Cadillac bearing North Carolina plates traveling west on Interstate 80 in which two of the three occupants were African-American, pursuant to a vehicle stop for a violation of Section 3310. In Samuel, the trooper testified that the Cadillac was "traveling less than one car length" behind a tractor-trailer. The defendants argued that the vehicle stop was pretextual and solely based on a "drug carrier's profile," i.e. "an expensive car carrying an out of state license with a black driver." Id. at 33. The Carbon County court agreed the stop was illegal, albeit for a different reason.

¶ 8 The Carbon County court determined that the purpose of Section 3310 "is to prevent accidents by requiring the driver to have his vehicle under such control that he or she can stop or maneuver safely if the vehicle in front stops or swerves unexpectedly." Id. The court found that the trooper's testimony regarding the distance between the vehicles was not, standing alone, sufficient to articulate "any lack of control by the driver of defendant's vehicle." Id. at 34. The court noted that the vehicle was not speeding and that there was no testimony by the trooper regarding "the traffic upon and the condition of the highway" set forth by the statute. The court concluded:

[The trooper's] testimony related solely to the distance he observed between the vehicles. We hold that a suspected violation of section 3310 of the Vehicle Code requires more articulation than just "traveling less than one car length" from another vehicle on the highway and a reasonable police officer would not have stopped defendants' vehicle on the facts observed and related to us by Trooper Miller. We find, therefore, that the police officers lacked reasonable suspicion to make a valid "traffic stop."

Id. at 35.

¶ 9 The Commonwealth appealed from the Samuel decision and raised one issue:

WHETHER THE STATE POLICE TROOPERS, BASED UPON THEIR OBSERVATION OF THE DEFENDANTS' VEHICLE TRAVELING LESS THAN ONE (1) CAR LENGTH BEHIND A TRACTOR-TRAILER WHILE THE TWO (2) VEHICLES WERE TRAVELING FIFTY-FIVE (55) MILES PER HOUR, HAD ARTICULABLE AND REASONABLE GROUNDS TO STOP THE DEFENDANTS' VEHICLE FOR A VIOLATION OF SECTION 3310 OF THE PENNSYLVANIA VEHICLE CODE[?]

¶ 10 A panel of this court, in an unpublished memorandum, affirmed on the basis of the trial court opinion which we concluded "comprehensively discusses and properly disposes of the question presented." In the present matter, the Commonwealth argues that Samuel has no precedential value for similar cases involving similar issues and that the trial court erred in its conclusion that it was bound by the holding in Samuel. We agree that Samuel, a published decision of the Carbon County Court of Common Pleas, is not binding precedent. This court's affirmance of Samuel was reported by unpublished memorandum. See 448 Pa.Super. 656, 671 A.2d 772 (1995) (table). Unpublished memoranda of this court have no precedential value. See Commonwealth v. Swinson, 426 Pa.Super. 167, 626 A.2d 627, 629 n. 7 (1993)

(unpublished memorandum cannot be relied upon or cited for precedential value). See also Internal Operating Procedures of the Superior Court § 444.B. Thus, the Carbon County court's rationale for disposition of the issue in Samuel holds no precedential value beyond law of the case as to the parties directly involved.

¶ 11 When we review the Commonwealth's appeal from a decision of the suppression court, "we consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in context of the entire record, remains uncontradicted." Commonwealth v. Witherspoon, 756 A.2d 677, 2000 PA Super 189, ¶ 2 (July 3, 2000) (quoting Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879, 880-81 (1998)). "When the evidence supports the suppression court's findings of fact ..., this Court may reverse only when the legal conclusions drawn from those facts are erroneous." Id. (quoting Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super.2000)).

¶ 12 After careful review of the record in the present case, we conclude the court's factual findings were supported by the evidence. It was established that appellee's vehicle was following the vehicle ahead of it in bumper to bumper fashion. We disagree however, with the court's legal conclusion that Trooper Taylor's observation thereof, standing alone, was insufficient to justify his stop of appellee's vehicle for a violation of Section 3310. We find that Trooper Taylor had reasonable suspicion to believe a violation of Section 3310 had occurred when he observed appellee's Accord traveling less than a motorcycle-length distance behind a tractor-trailer on Interstate 80 where the vehicles' respective rates of speed were at or near the speed limit for that highway. The evidence clearly bespeaks a hazard within the contemplation of Section 3310. Thus, we conclude that the initial stop of appellee's vehicle was lawful. Nonetheless,...