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10/15/97 COMMONWEALTH PENNSYLVANIA VS JOSEPH

October 15, 1997

COMMONWEALTH OF PENNSYLVANIA VS JOSEPH SCAVELLO, APPELLANT


Appeal from the Judgment of Sentence January 17, 1996 in the Court of Common Pleas of Montgomery County, Criminal No. 576-94. Before Nicholas, J.

Before: Cirillo, P.j.e., Cercone, P.j.e., and Montemuro*, J. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

Filed October 15, 1997

Joseph Scavello appeals from the judgment of sentence of the Court of Common Pleas of Montgomery County. We reverse.

At approximately 1:40 a.m. on Sunday November 21, 1993, Scavello was driving a black Pontiac coupe westbound on Route 73 in Worcester Township, Montgomery County. Shortly after crossing Route 363, Scavello saw a police roadblock placed pursuant to 75 Pa.C.S.A. § 6308. *fn1 Upon viewing the roadblock, Scavello made a legal U-turn and headed east on Route 73 away from the roadblock. Trooper Blair C. Miller of the Pennsylvania State Police, one of the troopers assigned to the roadblock, witnessed Scavello's U-turn and entered his cruiser and proceeded after Scavello. Trooper Miller quickly caught up with Scavello and effected a traffic stop. During the stop Trooper Miller inquired of Scavello as to why he made a U-turn. Scavello replied that he "didn't want to be hassled by the police." While talking with Scavello, Trooper Miller smelled alcohol emanating from his breath. Trooper Miller then administered a field sobriety test, the result of which gave him probable cause to believe that Scavello was driving while intoxicated. Scavello was then placed under arrest and taken to a testing facility which revealed that Scavello's blood alcohol content was .102 percent.

Scavello was subsequently charged with driving under the influence of alcohol as well as careless driving and underage consumption of alcohol. *fn2 Scavello filed a pre-trial motion to suppress any and all evidence attained as fruits of an illegal traffic stop. This motion was denied. After knowingly and intelligently waiving his rights to a jury trial, a bench trial ensued. Scavello was subsequently convicted of underage drinking and driving under the influence of alcohol and sentenced to 30 days to 23 months imprisonment and fined $300.00. Scavello was also ordered to pay the costs of prosecution and attend and complete safe driving school. This appeal followed. Scavello presents one question for our consideration:

Whether the court erred in finding that reasonable suspicion existed to effectuate a car stop solely as a result of the driver of the automobile executing a legal u-turn after viewing a police roadblock?

When we review 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, 133, 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 the province of the trial court to determine the credibility of the witnesses and weight to be accorded their testimony. Commonwealth v. Fitzpatrick, 446 Pa. Super. 87, 91, 666 A.2d 323, 325 (1995). 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.

Scavello argues that Trooper Miller lacked reasonable suspicion to effect a traffic stop, and, thus, any and all evidence gathered as a result of the stop should be suppressed. Specifically, Scavello contends that mere performance of a legal U-turn to avoid a police roadblock does not in and of itself provide grounds to effectuate a traffic stop. In support of his contention, Scavello relies principally upon a panel decision of this court in Commonwealth v. Metz, 412 Pa. Super. 100, 602 A.2d 1328 (1992), aff'd. on other grounds 534 Pa. 341, 633 A.2d 125 (1993). *fn3

In Metz, a plurality of this court held that where a motorist attempts to avoid a police roadblock, there must be specific and articulable facts present that the motorist was in violation of the Vehicle Code to effectuate a legal traffic stop. Metz, 412 Pa. Super. at 113, 602 A.2d at 1335. Underlying the plurality's decision was the concern that if legal actions by a motorist, the effect of which resulted in avoidance of a roadblock, gave rise to reasonable suspicion, then any legal maneuver in view of a police checkpoint, such as making a U-turn or turning onto a side street, could subject the motorist to an investigative detention. Id. at , 602 A.2d at 1332-34. Such an outcome, the plurality feared, undermined the protections guaranteed to all citizens under the Fourth Amendment of the United States Constitution and Article I, § 8 of the Pennsylvania Constitution.

Although we are not bound by the Metz decision, we find its reasoning persuasive and, therefore, rely upon it as controlling. Consequently, we hold that:

a motorist's avoidance or attempt to avoid a police roadblock must be coupled with other articulable facts in order to give a police officer reasonable suspicion that the motorist is in violation of the Vehicle Code or that criminal activity is afoot.

Metz, 412 Pa. Super. at 114, 602 A.2d at 1335. We are cognizant of the Commonwealth's assertion that permitting motorists to choose whether they desire to cooperate with a roadblock will generally reduce its effectiveness. *fn4 However, we stress that if an officer can articulate facts that when combined with a motorist's avoidance of a roadblock lead the officer to believe that criminal activity is afoot, then an officer may make an investigatory stop. In that regard, it is necessary for the officer to describe all of the circumstances under which the avoidance of the roadblock occurred, including, but not limited to, whether the ...


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