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June 18, 1997


Appeal from the Judgment of Sentence of June 28, 1996. In the Court of Common Pleas of Lancaster County, Criminal Division, No. 2616-1995. Before STENGEL, J.

Before: Popovich, J., Johnson, J. and Cercone, P.j.e. Opinion BY Cercone, P.j.e. Popovich, J. files a Concurring Statement. Johnson, J. files a Dissenting Opinion.

The opinion of the court was delivered by: Cercone


FILED June 18, 1997

This is an appeal from the judgment of sentence entered after a jury found appellant Frederick W. Petroll guilty of three counts of homicide by vehicle, *fn1 and the trial court found him guilty of one count each of failing to drive vehicle at safe speed *fn2 and careless driving. *fn3 We affirm.

The trial court has provided us with an accurate factual summary:

On April 21, 1995, Mr. Petroll caused the deaths of Douglas Harsh, his wife, Connie, and their infant son, Tyler, when he drove his tractor trailer into the rear of the Harsh vehicle which had stopped for traffic on Route 30 in Manheim Township. The impact of the collision caused the vehicle to burst into flames. The damage to the vehicle was so extensive that the Harshes were unable to escape their vehicle, which was destroyed by fire. All three occupants were pronounced dead at the scene. Dr. Wayne Ross, the Lancaster County Forensic Pathologist, performed autopsies on all three victims and determined the cause of death to be from thermal burning and smoke inhalation from the fire which resulted from the accident.

The impact also pushed the Harsh vehicle into the rear of another vehicle, setting off a chain reaction, which resulted in damage and injury to at least three other vehicles and the occupants. A police officer investigating the accident testified that, based upon his training as an Advanced Accident Investigator, the distance from the initial point of impact to the final resting position of the last vehicle was over 200 feet. Defendant's tractor trailer left skid marks of 96.5 feet prior to striking the Harsh vehicle and 69 to 83 feet of skid marks after impact.

Trial court opinion dated 11/7/96 at 1-2. On May 15, 1996, appellant was found guilty of the above-listed crimes. The trial court, on June 28, 1996, sentenced appellant to concurrent terms of imprisonment of not less than eighteen (18) months nor more than three (3) years for each count of homicide by vehicle. The summary offenses merged for sentencing purposes.

In this timely appeal from the judgment of sentence, appellant raises six issues. Initially, appellant claims that the trial court erred by denying his motion to suppress evidence seized from his truck. He also argues that the trial court improperly denied a motion in limine seeking to preclude the Commonwealth from introducing that evidence. Similarly, he Commonwealth's motion in limine seeking to preclude evidence that PennDOT, after the accident, altered road signs in the area of the collision. Furthermore, appellant objects to the trial court's qualification of a Commonwealth witness as an accident reconstructionist. In addition, appellant claims that the prejudice engendered by the admission of photographs of the accident rendered them inadmissible. Appellant also challenges the sufficiency of the evidence supporting his conviction for homicide by vehicle.

Because a determination that the evidence was insufficient to support a conviction results in discharge, we shall begin by addressing that claim. Commonwealth v. Bybel, 531 Pa. 68, 71, 611 A.2d 188, 189 (1992). When presented with a challenge to the sufficiency of the evidence, an appellate court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined that all the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Zimmick, 539 Pa. 548, 554, 653 A.2d 1217, 1220 (1995); Commonwealth v. Rodriquez, 449 Pa. Super. 319, 325-26, 673 A.2d 962, 965 (1996). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Rodriquez, 449 Pa. Super. at 326, 673 A.2d at 965. It is within the province of the fact finder to determine the weight to be accorded each witnesses' testimony and to believe all, part, or none of the evidence introduced at trial. Commonwealth v. Molinaro, 429 Pa. Super. 29, 33, 631 A.2d 1040, 1042 (1993).

As stated, the jury found appellant guilty of homicide by vehicle. A person is guilty of homicide by vehicle, a first degree misdemeanor, if that person "unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic . . . when the violation is the cause of death." 75 Pa. C.S.A. § 3732. Causation will only be found if the defendant's Motor Vehicle Code violation was a direct and substantial factor in the death of the victim and the fatal result was not extraordinary or remote. Commonwealth v. Francis, 445 Pa. Super. 353, 357-58, 665 A.2d 821, 823 (1995); Commonwealth v. Nicotra, 425 Pa. Super. 600, 607-08, 625 A.2d 1259, 1263-64 (1993) (when the defendant's conduct starts the chain of causation leading to the victim's death, criminal responsibility for the crime of homicide may properly be found). Further, the Commonwealth must establish that the defendant's conduct was criminally negligent or reckless. Francis, 445 Pa. Super. at 358, 665 A.2d at 823 (citing Commonwealth v. Heck, 517 Pa. 192, 201, 535 A.2d 575, 580 (1987)).

In this case, the Commonwealth charged appellant with the underlying Motor Vehicle Code violations of careless driving and driving his vehicle at an unsafe speed. Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense. 75 Pa. C.S.A. § 3714. Falling asleep while operating an automobile manifests a "careless disregard for the safety of persons or property" and therefore constitutes careless driving under section 3714. Commonwealth v. Cathey, 435 Pa. Super. 162, 166, 645 A.2d 250, 252 (1994) (driver who fell asleep while operating his vehicle, crossed over into the oncoming lane of traffic, and struck another vehicle was found guilty of careless driving). "It is impossible to fathom how one who falls asleep while operating an automobile, thus blindly propelling thousands of pounds of steel and glass at tens of miles per hour, cannot be guilty of a degree of negligence beyond mere 'absence of ordinary care.'" Id. at 166, 645 A.2d at 251.

Just after the accident in this case, appellant confided to Carla Cwynar, an employee with the Manheim Township Ambulance service, that he had dozed briefly and that he had problems stopping his truck when he awoke. N.T. 5/10/96 at 258. According to Robert Reeber, an eyewitness to the collision, just before impact, the driver was slouched in the seat, leaning toward the right with his head down. N.T. 5/9/96 at 90, 110. Mr. Reeber speculated that appellant may have been looking downward to adjust the radio or to retrieve something from the floor. N.T. 5/9/96 at 90.

The jury was free to credit Ms. Cwynar's assertion that appellant had fallen asleep. By falling asleep at the wheel, thereby demonstrating negligence beyond mere absence of ordinary care, appellant started the chain of causation that led to the victims' deaths. The evidence was therefore sufficient to support appellant's homicide by vehicle convictions. See Commonwealth v. Eichelberger, 364 Pa. Super. 425, 428-29, 528 A.2d 230, 232 (1987) (evidence that the defendant, who suffered from lack of sleep and had a blood alcohol content of 0.09%, drove his vehicle on the wrong side of the roadway, was sufficient to permit an inference of criminal negligence and to support his conviction for homicide by vehicle). Accordingly, we need not here address the other vehicle code violation charged, failing to drive at safe speed.

We shall next consider the denial of appellant's suppression motion. When reviewing the ruling of a suppression court, an appellate court must first ascertain whether the record supports the suppression court's factual findings and then assess the reasonableness of the inferences and legal Conclusions drawn from those findings. Commonwealth v. Diaz, 442 Pa. Super. 238, 246, 659 A.2d 563, 567 (1995), appeal denied, 542 Pa. 658, 668 A.2d 1123 (1995). When the defendant appeals, we may consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, read in the context of the record as a whole, remains uncontradicted. Id. If the evidence, when so viewed, supports the suppression court's factual findings, we may only reverse if the legal Conclusions drawn therefrom are in error. Id. The suppression court bears exclusive responsibility for assessing the credibility of witnesses and determining the weight to be accorded to their testimony. Commonwealth v. Dorsey, 439 Pa. Super. 494, 498, 654 A.2d 1086, 1088 (1995). Although we are bound by findings of fact that are supported by the record, we are not bound by legal Conclusions drawn from those facts. Id.

Appellant in this case claims that the trial court improperly denied his motion to suppress evidence seized from his truck, specifically, a radar detector, log book, brown bag, and bank deposit bag. The parties developed the factual background for this motion at a suppression hearing:

After the accident on Route 30, police arrived at the scene. Sergeant Dale McCurdy of the Manheim Township Police Department and supervising officer at the scene, entered Mr. Petroll's tractor trailer without his consent. Sgt. McCurdy testified that he went inside the cab to check to make sure that the brakes of the truck were on. At that time, Sgt. McCurdy noted that there was a radar detector in defendant's truck. There was no indication that the detector was activated at that time. Sgt. McCurdy did not seize any items from the truck.

The truck was subsequently impounded at Hammer's Towing. Officer Jeffrey Jones of the Manheim Township Police Department went to Hammer's Towing on May 16, 1995 and confiscated the radar detector from the truck. This was done without a warrant and without defendant's consent.

[Before the truck was impounded,] Officer Gary Metzger of the Lancaster City Police Department removed from the cab a brown bag, a log bag and the bank deposit bag.

Trial court opinion dated 11/7/96 at 4-5 (citations to the record omitted).

Although the quoted portion of the trial court's opinion does not so reflect, we stress that Sergeant McCurdy first viewed the radar detector through the truck's front windshield while he was standing on the public highway in front of appellant's truck. The warrantless seizure of a piece of evidence that is in plain view is permissible if the evidence is seen from a lawful vantage point and if the incriminating nature of the evidence is immediately apparent to the viewer. Commonwealth v. Ellis, 541 Pa. 285, 297, 662 A.2d 1043, 1049 (1995). "The observing officer must have probable cause to believe the evidence in question is contraband or incriminating evidence." Id. To determine whether probable cause exists, a court will view the totality of the circumstances, considering whether the facts and circumstances existing at the time of the seizure would have led a person of reasonable caution to believe that the evidence in question was incriminating in nature. Id. at 298, 662 A.2d at 1049-1050.

As stated, the officer viewed the radar detector on the truck's dashboard from his lawful vantage point outside of the truck. See Commonwealth v. Wells, 441 Pa. Super. 272, 657 A.2d 507 (1995), appeal denied, 542 Pa. 668, 668 A.2d 1131 (1995) (after lawfully stopping the suspect, the officer viewed on the front seat of the suspect's car a supermarket bag containing orange-tinted packets and a ziplock bag containing a white chunky substance; the officer properly seized that bag under the plain view doctrine). He immediately recognized that possession of a radar detector constitutes a violation of federal law. 49 C.F.R. § 392.71 ("No driver shall use a radar detector in a commercial motor vehicle, or operate a commercial motor vehicle that is equipped with or contains any radar detector"). See also 67 Pa. Code §§ 229.181, 231.181 (incorporating by reference 49 C.F.R. § 392.71); 67 Pa. Code § 229.3 (incorporating by reference 49 C.F.R. § 390.5 (relating to definition of radar detector)). The incriminating nature of the evidence was, therefore, immediately apparent to the officer. Accordingly, the warrantless seizure of the radar detector at that point would have been permissible under the plain view doctrine. We are not persuaded that the seizure became impermissible because it was delayed until a time when the truck was impounded.

We shall now address the propriety of the seizure of the driver's log book and bank deposit bag. Sergeant Gary Metzger entered the cab of the truck to ensure that the brake was set, as did Sergeant McCurdy. While there, he observed and confiscated the driver's log book, the bank deposit bag and the brown bag. Appellant, relying on Commonwealth v. White, maintains that the warrantless seizure of those items was improper because Sergeant Metzger did not have probable cause to believe that the truck contained evidence of criminal activity:

Police may search a vehicle without a warrant where: (1) there is probable cause to believe that an automobile contains evidence of criminal activity; (2) unless the car is searched or impounded, the occupants of the automobile are likely to drive away and contents of the automobile may never again be located by police; and (3) police have obtained this information in such a way that they could not have secured a warrant for the search, i.e., there are exigent circumstances.

Id., 543 Pa. 45, 51-52, 669 A.2d 896, 900 (1995) (emphasis in original). The Commonwealth distinguishes this search from those contemplated in White because the object of the instant search was a commercial vehicle. We must therefore determine whether Sergeant Metzger's warrantless entry into the commercial vehicle and seizure of the driver's log, the bank deposit bag and the brown bag violated appellant's right to be free from unreasonable searches and seizures. *fn4

The Fourth Amendment's prohibition against unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. New York v. Burger, 482 U.S. 691, 699, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987). The owner or operator of a business, therefore, has an expectation of privacy in commercial property that society is prepared to consider to be reasonable. Id. That expectation exists not only with respect to traditional police searches conducted to investigate violations of criminal laws but also with respect to administrative inspections designed to enforce regulatory statutes. Id., 482 U.S. 699-700, 96 L. Ed. 2d 601, 107 S. Ct. 2636. As such, a warrant is required to conduct an administrative inspection unless one of the exceptions to the warrant requirement applies. *fn5 Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 56 L. Ed. 2d 305, 98 S. Ct. 1816 (1978).

The United States Supreme Court has recognized an exception to the warrant requirement for administrative inspections in "closely regulated" businesses. Burger, 482 U.S. at 693, 96 L. Ed. 2d 601, 107 S. Ct. 2636. See also Donovan v. Dewey, 452 U.S. 594, 598, 69 L. Ed. 2d 262, 101 S. Ct. 2534, 2539 (1981) ("Legislative schemes authorizing warrantless administrative searches of commercial property do not necessarily violate the Fourth Amendment"). The greater latitude to conduct warrantless inspections of commercial property reflects the idea that although the owner or operator of a business has a reasonable expectation of privacy in commercial property, that expectation is different from, and less than, a similar expectation in an individual's home. Burger, 482 U.S. at 699-700, 96 L. Ed. 2d 601, 107 S. Ct. 2636; Donovan v. Dewey, 452 U.S. at 598, 69 L. Ed. 2d 262, 101 S. Ct. 2534. The expectation is particularly attenuated in commercial property employed in "closely regulated" industries. Burger, 482 U.S. at 700, 96 L. Ed. 2d 601, 107 S. Ct. 2636.

Accordingly, "where the privacy interests of the owner [or operator of commercial premises in a 'closely regulated' industry] are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment." Id., 482 U.S. at 702, 96 L. Ed. 2d 601, 107 S. Ct. 2636. A warrantless inspection of a pervasively regulated business is reasonable if three criteria are satisfied:

[1] There must be a "substantial" government interest that informs the regulatory scheme pursuant to which the inspection is made. . . .

[2] The warrantless inspection must be "necessary to further [the] regulatory scheme."

[3] "The statute's inspection program, in terms of the certainty and regularity of its application, [must] provide a constitutionally adequate substitute for a warrant." . . . [Specifically,] the regulatory statute . . . must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.

Id., 482 U.S. at 702-03, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (citations omitted). See, e.g., Donovan v. Dewey, 452 U.S. at 603, 69 L. Ed. 2d 262, 101 S. Ct. 2534 (warrantless inspections required by the Mine Safety and Health Act do not offend the Fourth Amendment: there is a substantial federal interest in improving the health and safety conditions in the mining industry; Congress was aware of the hazardous conditions and poor health and safety record existing in that industry; a system of warrantless inspections is necessary to properly enforce the regulations; and the regulatory scheme provided a constitutionally adequate substitute for a warrant); United States v. Biswell, 406 U.S. 311, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972) (warrantless inspections mandated under comprehensive and predictable inspection scheme posed only limited threats to gun dealer's expectation of privacy as gun dealers who choose to engage in that pervasively regulated business do so with the knowledge that their records, firearms ...

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