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Commonwealth v. Anthony

July 13, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
WILLIAM JOSEPH ANTHONY, APPELLANT



Appeal from the Judgment of Sentence entered September 27, 2006, In the Court of Common Pleas, Butler County, Criminal, at CP-10-CR-0000056-2006.

The opinion of the court was delivered by: Allen, J.

BEFORE: FORD ELLIOTT, P.J., ALLEN and POPOVICH, JJ.

OPINION

¶ 1 William Joseph Anthony (Appellant) appeals nunc pro tunc from the judgment of sentence entered upon his conviction of driving under the influence of alcohol (DUI). 75 Pa.C.S.A. § 3802. Appellant maintains that the trial court erred in denying his motion to suppress because the police officer lacked probable cause or reasonable suspicion to effectuate a traffic stop. We affirm.

¶ 2 At the suppression hearing, Officer Cheryl Litz of the Butler County Police Department testified that she received a dispatch relating to a 911 call from a named citizen, Felix Rosario, who stated that he was following a dark blue Buick. Officer Litz testified that dispatch informed her Rosario believed the driver of the Buick was DUI because he observed the driver almost strike the wall of a bridge, run a stop sign and drive onto a sidewalk. The dispatcher, relaying Rosario's statements, provided Officer Litz with the registration number and location of the Buick. Officer Litz testified that, consistent with the information she received from dispatch, she observed the Buick traveling west on Wayne Street in the City of Butler, and turn south on Jackson Avenue. According to Officer Litz, she observed Rosario's vehicle following the Buick, and she initiated a traffic stop of the Buick. Officer Litz testified that she did not observe the Buick violate any provision of the motor vehicle code, but instead, relied upon the information provided to her through dispatch via Rosario. Once Officer Litz stopped Appellant's vehicle, Rosario exited his car and met with Officer Litz, whereby Officer Litz interviewed Rosario. After briefly observing Appellant's conduct, Officer Litz arrested Appellant on the belief that he was DUI. Subsequent testing revealed that Appellant's blood alcohol level exceeded .16%.

¶ 3 The Commonwealth charged Appellant with DUI. Appellant's counsel filed an omnibus pre-trial motion to suppress, contesting the legality of the traffic stop. The trial court denied Appellant's motion to suppress, and the case proceeded to a bench trial. On August 29, 2006, the trial court found Appellant guilty of DUI. By order dated September 27, 2006, the trial court sentenced Appellant to six months of intermediate punishment and a fine of $1,000.

¶ 4 On October 24, 2006, Appellant filed a notice of appeal. The trial court issued an order on October 25, 2006, directing Appellant to file a Pa.R.A.P. 1925(b) statement within 14 days. Appellant, in turn, filed his statement approximately nineteen days later on November 13, 2006. On appeal, this Court found that all of Appellant's assignments of error were waived due to the fact that he filed an untimely Pa.R.A.P. 1925(b) statement, and our Supreme Court denied allowance of appeal. Commonwealth v. Anthony, 943 A.2d 307 (Pa. Super. 2007), appeal denied by 951 A.2d 1159 (Pa. 2008).

¶ 5 On July 31, 2008, Appellant filed a petition under the Post-Conviction Relief Act (PCRA), alleging that his appellate counsel was ineffective for failing to file a timely Pa.R.A.P. 1925(b) statement. On October 14, 2008, the trial court reinstated Appellant's direct appeal rights and ordered Appellant to file a notice of appeal within thirty days. Appellant, on November 10, 2008, filed a timely notice of appeal to this Court. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

¶ 6 Appellant raises the following issue for our review:

1. Did the Trial Court commit an error of law when it denied Appellant's Omnibus Pre-Trial Motion to Suppress and determined the stop of the Appellant's vehicle, by Officer Cheryl Litz of the Butler City Police Department, did not violate Article One Section 8 of the Constitution of the Commonwealth of Pennsylvania and the Fourth and Fourteenth Amendments of the United States Constitution or Section 6308 of the Pennsylvania Motor Vehicle Code?

Brief for Appellant at 7.

¶ 7 An appellate court's scope and standard of review of an order denying a suppression motion is well established.

[W]e may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa. 2007) (citation omitted). "An appellate court, of course, is not bound by the suppression court's conclusions of law." Id. However, "[i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." ...


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