Com. v. Sands

• Decision Date: 02 November 2005
• Citation: 887 A.2d 261
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kenneth SANDS, Appellant.
• Court: Pennsylvania Supreme Court

Page 261

887 A.2d 261

COMMONWEALTH of Pennsylvania, Appellee v. Kenneth SANDS, Appellant.

Superior Court of Pennsylvania.

Argued September 14, 2005.

Filed November 2, 2005.

Dawson R. Muth, West Chester, for appellant.

Nicholas J. Casenta, Asst. Dist. Atty., West Chester, for Com., appellee.

Before: MUSMANNO, BENDER and OLSZEWSKI, JJ.

BENDER, J.:

¶ 1 Kenneth Sands (Appellant) appeals from the judgment of sentence entered following his convictions for driving under the influence of alcohol and for violating the vehicle code provision requiring that a vehicle be driven in a single lane. See 75 Pa.C.S. §§ 3802(a)(1)(c), 3309(1). Appellant raises several allegations of error, all of which we find to be without merit. Accordingly, we affirm.

¶ 2 The trial court made the following findings of fact:

1. At approximately 12:15 a.m. on August 25, 2004, arresting Westtown East Goshen police officer, Peter Keegan ("Officer Keegan"), was driving his marked police vehicle, while on duty and in full uniform, east in the right lane of Route 3, a/k/a West Chester Pike, within East Goshen Township, Chester County, Pennsylvania. At that time, Officer Keegan had been a police officer for approximately four and one-half years and had made between forty and fifty driving under the influence arrests.

2. Route 3 within East Goshen Township, Chester County, Pennsylvania, is a four-lane divided highway. Two lanes are provided for eastbound traffic and two lanes are provided for westbound vehicles. The right-hand eastbound lane in which Officer Keegan was proceeding is approximately ten to eleven feet wide with a clearly visible solid white fog line marking the lane's right (south) side boundary. The left and right eastbound lanes of Route 3 in this vicinity were separated by a clearly visible dotted white line. To the right of the aforementioned fog line is an approximately six foot wide paved shoulder berm ("berm").

3. As Officer Keegan approached the 1300 block of Route 3, he observed the Defendant's car approximately fifty feet in front of him proceeding within the speed limit, eastbound in the right lane. There were no cars between Officer Keegan's vehicle and the Defendant's car. Officer Keegan's attention was drawn to the Defendant's vehicle due to its unsteady, weaving progress.

4. Although Route 3 is a relatively straight highway in the vicinity where Officer Keegan first observed the Defendant's vehicle, the Defendant's car appeared unable to stay in its lane. As Officer Keegan made his first observations, the Defendant's car slowly drifted to the fog line and across it approximately three feet until it slowly drifted back into the right lane.

5. While Officer Keegan continued to follow the Defendant's vehicle, he observed the car, for a second time, slowly drift to the fog line and across it, intruding approximately three to four feet onto the berm before slowly drifting back across the fog line and into the right lane.

6. As Officer Keegan continued to follow the Defendant's vehicle toward the intersection of Route 3 and Westtown Way, an intersection located approximately one-quarter mile from the area where Officer Keegan first observed the Defendant's vehicle, for a third time, the Defendant's vehicle slowly drifted out of the right eastbound lane and across the fog line, again extending approximately three feet into the berm before slowly drifting back into the right lane. Route 3 in this vicinity gently curves left and downhill toward Westtown Way.

7. Between the 1300 block of Route 3 and the Westtown Way-Route 3 intersection, on August 25, 2004, Route 3 was well lit with street lights and there were no obstructions or debris on the Route 3 eastbound lanes or berm to explain the weaving motion of Defendant's vehicle. Adjacent to the eastbound berm on its right edge, in the vicinity where Officer Keegan observed the Defendant's vehicle, is occasional curbing. To the right of the eastbound berm and off the cart way in this vicinity are some structures and improvements, including parking lots, road signs, bus stops and a power source generator.

8. The above-described power source generator consists of a large green box located approximately three feet from the edge of the berm. A utility pole is located next to the generator. Officer Keegan observed that the Defendant's vehicle came within approximately six feet of the power source generator as it weaved for the third time onto the Route 3 berm.

9. Officer Keegan was concerned about the Defendant's safety, and thought that the Defendant's inability to maintain a straight trajectory within the right lane of travel on Route 3, and his weaving onto the eastbound berm, indicated that he might strike one of the stationary objects located along Route 3. He was especially concerned that the Defendant's vehicle would strike the power source generator or the adjacent utility pole. The weaving Officer Keegan observed on Route 3 led him to suspect that the Defendant was driving under the influence of alcohol.

10. While Officer Keegan observed the Defendant's car on Route 3, he did not observe any pedestrians or other motor vehicles in the vicinity of the Defendant's vehicle.

11. When the Defendant's vehicle arrived at the intersection of Route 3 and Westtown Way, it made a right turn onto Westtown Way, proceeding through the green traffic signal.

12. After turning onto Westtown Way and traveling approximately two hundred feet, Defendant's vehicle, out of the sight of Officer Keegan, turned left onto Walnut Hill Road. Shortly after traveling on Walnut Hill Road, the Defendant's vehicle turned left onto Manley Road.

13. A short distance after following the Defendant's car on Manley Road, Officer Keegan initiated the traffic stop of the Defendant's car on Manley Road in the vicinity of School Lane in East Goshen Township.

14. Conditions during Officer Keegan's observation of the Defendant's vehicle were dry and none of the relevant road surfaces were wet.

Trial Court Opinion (T.C.O.), 12/23/04, at 1-4.

¶ 3 Furthermore, the record shows that after Officer Keegan stopped Appellant's vehicle and approached Appellant, Officer Keegan detected a strong odor of alcohol. N.T., 10/20/04, at 5. Appellant also had slurred speech and blood shot eyes, and he failed all the field sobriety tests administered by Officer Keegan. Id. at 6. Appellant also failed a breathalyzer test, and a subsequent blood alcohol test showed an alcohol content of .18. Id. at 7. Based on the foregoing, the Commonwealth charged Appellant with the aforementioned offenses.

¶ 4 Prior to trial, Appellant filed a motion to suppress based on a claim that the traffic stop was illegal. The court denied the motion and following a non-jury trial, the court found Appellant guilty as charged. This was Appellant's second DUI offense, and the court sentenced Appellant to thirty days' incarceration, one year of probation, eighty hours of community service and alcohol assessment and treatment. Appellant then filed this appeal raising the following six questions for our review:

I. Whether the trial court erred in holding that probable cause was not required at the time that the police officer stopped the defendant's vehicle?

II. Whether the trial court erred in its application of Section 6308 of the Vehicle Code, wherein the standard necessary for a vehicle stop was lowered from Probable Cause to Reasonable Suspicion?

III. Whether the trial court's application and interpretation of 6308 of the Vehicle Code as applied to the facts and circumstances of this case is unconstitutional under the State and Federal Constitutions?

IV. Whether the trial court erred in denying the suppression of all evidence acquired by the Commonwealth following the stop of the defendant's vehicle?

V. Whether the trial court erred in finding that reasonable suspicion was present at the time the police officer stopped the defendant?

VI. Whether the trial court erred in its findings of fact and conclusions of law that the weaving alleged in this case is "excessive," "pronounced", and "exaggerated" so as to support an investigative detention?

Brief for Appellant at 4.

¶ 5 Although Appellant has presented six questions for our review, he has grouped his Argument into only two sections; the first section addresses questions one through three, and the second section addresses questions three through six. We admonish Appellant's counsel for not adhering to the Pennsylvania Rules of Appellate Procedure, which simply require that the Argument section be "divided into as many parts as there are questions to be argued." Pa.R.A.P. 2119(a). And upon review of Appellant's Argument, the issues can be restated as: (1) Whether 75 Pa.C.S. § 6308(b), which permits a police officer to stop a vehicle based upon reasonable suspicion that the driver is in violation of the Vehicle Code, 75 Pa.C.S. §§ 101-9802, is unconstitutional as applied to the facts of this case; and (2) If Section 6308(b) is constitutional, whether Officer Keegan had reasonable suspicion to stop Appellant's vehicle based upon a suspicion that Appellant was driving under the influence?

¶ 6 In the instant case, Appellant has presented a constitutional challenge under both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.¹ "When reviewing the constitutionality of a statute, we begin with the strong presumption that legislative enactments do not violate the constitution. Thus, the challenger of the Act bears a heavy burden of proving that the statute clearly, palpably and plainly violates constitutional rights." Commonwealth v. Bullock, 868 A.2d 516, 521 (Pa.Super.2005) (citation and quotation marks omitted). "Constitutionality of a statute is a question of law, therefore the scope of our review of this issue is plenary." Commonwealth v. Moss, 852 A.2d 374, 379 (Pa.Super.2004).

¶ 7 The statute at issue here is Section...