March 17, 2010
COREY S. WEEMS
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, BUREAU OF DRIVER LICENSING, APPELLANT
The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: December 31, 2009
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (Department) appeals from an order of the Court of Common Pleas of Dauphin County (trial court) which sustained the appeal of Corey S. Weems (Weems) from an eighteen-month suspension of his operating privileges for refusal to submit to chemical testing, pursuant to Section 1547(b)(1)(i) of the Vehicle Code, 75 Pa. C.S. §1547(b)(1)(i). We reverse.
On April 19, 2008, Weems was charged with Driving Under the Influence of Alcohol or Controlled Substance (DUI) in violation of Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802. The Department notified Weems by letter dated April 30, 2008, that his operating privileges would be suspended for eighteen months as a result of his refusal to submit to chemical testing on April 19, 2008, in violation of Section 1547 of the Vehicle Code. On May 30, 2008, Weems filed a timely appeal to the trial court.
On July 16, 2008, the trial court held a de novo hearing. The Department presented the testimony of Officer Brant Maley of the Penbrook Borough Police Department (Officer Maley). Officer Maley testified that on April 19, 2008, he affected a traffic stop of Weems' vehicle after observing it traveling at about 50 miles-per-hour in a properly posted 25 mile-per-hour zone and failing "to stop at a red turn". Reproduced Record (R.R.) at 18a. Officer Maley testified that he "detected an odor of alcoholic beverage coming from [Weems'] breath" and that Weems told him that he had only had one drink starting at 8:00 p.m. that evening. R.R. at 19a. Thereafter, Officer Maley requested Weems to perform a series of field sobriety tests, which he consented to perform. Officer Maley determined that Weems failed the sobriety tests. Officer Maley then placed Weems under arrest for driving under the influence, put him in his patrol car and transported him to the Dauphin County booking center in Harrisburg. Once at the booking center, Officer Maley read the Implied Consent warnings to Weems from the DL-26 form and gave Weems the opportunity to read the form to himself. Thereafter, Weems signed the DL-26 form and advised Officer Maley that "he was going to refuse to take the breath test." R.R. at 21a.
On cross, Officer Maley agreed that about a quarter-of-a-mile after he began following Weems' vehicle, he entered another jurisdiction, Susquehanna Township. Officer Maley stated that he had not been able to "clock" Weems' vehicle in order to cite him for speeding; that he was of the opinion that Weems was traveling at a speed higher than posted and determined that there could be a problem with Weems operating a motor vehicle safely. Officer Maley charged Weems with violating 75 Pa. C.S. §3361 (relating to driving a vehicle at a safe speed).*fn1
The trial court interjected that the issue before it regarded the Municipal Police Jurisdiction Act, 42 Pa. C.S. §8953 (relating to statewide municipal police jurisdiction)(MPJA). The Department argued that under the MPJA, Officer Maley properly followed Weems' vehicle into Susquehanna Township and affected an arrest for DUI, because he had observed a traffic violation in his own jurisdiction of Penbrook, that is, driving a vehicle at an unsafe speed, approximately fifty miles-per-hour in a 25 mile-per-hour zone.
The trial court asked for the disposition of the Section 3361 violation and was informed that it was still pending before the trial court. The trial court then asked counsel for Weems his position on whether Officer Maley would have jurisdiction pursuant to the MPJA if the purpose of his exceeding his boundaries was to issue the citation for violating Section 3361. Weems' attorney responded that he would agree with the trial court's analysis under 42 Pa. C.S. §8953(a)(2) (hot and fresh pursuit). The trial court continued the matter until the underlying charges were adjudicated.
On May 6, 2009, the trial court reconvened the hearing. The trial court was advised that Weems pled guilty to disorderly conduct and a violation of 75 Pa. C.S. § 3111 (relating to obedience to traffic-control devices). R.R. at 45a-46a. Weems did not enter a plea regarding the 75 Pa. C.S. §3361, unsafe speed charge. R.R. at 47a.
Officer Maley was recalled and testified regarding his observation of Weems' vehicle the night in question. Officer Maley stated that he estimated Weems to be traveling at about 50 miles-per-hour in a 25 mile-per-hour zone; that his estimate was based upon nine years of service and doing a lot of focus traffic enforcement. Officer Maley stated that he has "clocked like tens of thousands of cars with speed timing equipment through my career. I have - - that's a good estimate of what the travelling public is doing.. I estimate that I am plus or minus two or three miles per hour on my guesses most of the time. I am sometimes right on, pretty close." R.R. at 50a-51a. Officer Maley, when questioned by the trial court judge, stated that he followed Weems' vehicle in order to stop him for driving at an unsafe speed. R.R. at 58a. Officer Maley further stated that he had "reasonable suspicion to stop him at that time.." Id.
The trial court sustained Weems' statutory appeal. The trial court stated that it sustained Weems' appeal because Officer Maley testified that he had a "reasonable suspicion" that Weems had violated 75 Pa. C.S. §3361 while he was within Officer Maley's primary jurisdiction, and the MPJA required that he have "probable cause" to believe that Weems had violated Section 3361. The Department now appeals to this court.*fn2
On appeal, the Department contends that the trial court erred as a matter of law in holding that Officer Maley, the arresting police officer, did not have the authority to affect an extraterritorial arrest of licensee, Weems, under the MPJA for violating Section 3802 of the Vehicle Code, 75 Pa. C.S. §3802 (driving under the influence).
To sustain a license suspension under Section 1547(b) of the Vehicle Code, the Department must demonstrate that the licensee: (1) was arrested for driving under the influence of alcohol; (2) was asked to submit to chemical testing; (3) refused to do so; and (4) was specifically warned that a refusal would result in the suspension of his operating privileges. Carlin v. Department of Transportation, Bureau of Driver Licensing, 739 A.2d 656 (Pa. Cmwlth. 1999), petition for allowance of appeal denied, 563 Pa. 678, 759 A.2d 924 (2000).*fn3 If the Department is able to sustain its burden, the burden then shifts to the licensee to prove that he was physically unable to take the test or that he was incapable of making a knowing and conscious refusal. Department of Transportation, Bureau of Driver Licensing v. Wilhelm, 626 A.2d 600 (Pa. Cmwlth. 1993).
The Department satisfied this burden through the testimony of Officer Maley, together with the admission of Weems' prior chemical test refusal under Section 3802 of the Vehicle Code.
Thus, the sole issue before this court is whether Officer Maley possessed the statutory authority to effect an arrest of Weems for DUI in the neighboring jurisdiction.*fn4 Section 8953 of the MPJA provides in pertinent part as follows:
(a) General rule.- Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(2) Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense.
42 Pa. C.S. §8953. (emphasis added).
Officer Maley testified that he had a "reasonable suspicion" that Weems had violated 75 Pa. C.S. § 3361 (relating to driving a vehicle at a safe speed) while within the Officer's jurisdiction. The trial court concluded that Officer Maley possessed a "reasonable suspicion" that Weems had violated 75 Pa. C.S. §3361 while in Penbrook Borough.*fn5
Under the MPJA, Officer Maley is required to have "probable cause" that Weems violated 75 Pa. C.S. §3361 while still within Penbrook Borough in order to follow Weems into Susquehanna Township and effect an arrest. The Department submits that the trial court erred and abused its discretion in determining that no probable cause existed merely because Officer Maley testified that he had a reasonable suspicion. The Department maintains that the trial court should have examined further into the facts in order to determine whether the Officer did, in fact, possess the requisite "probable cause" to believe that Weems had violated 75 Pa. C.S. §3361 while still within Penbrook Borough.
In Commonwealth v. Stroud, 699 A.2d 1305, 1308 (Pa. Super. 1997), "probable cause" was defined in pertinent part as follows:
probable cause does not deal with certainties,--"probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely inference.." Finally, as this Court has recently noted, the totality of the circumstances must be viewed as seen through the eyes of an experienced, trained police officer since, "when evaluating the totality of circumstances comprising reasonable suspicion or probable cause, [a reviewing court] will not ignore the ability of experienced police officers to draw deductions and inferences which other persons might not make.." (citations omitted).
Officer Maley testified that he had a "reasonable suspicion" that Weems had violated 75 Pa. C.S. §3361 (driving at a safe speed). "The basic element of driving. [a vehicle at a safe speed, in violation of 75 Pa. C.S. §3361] is speed: 1. speed greater than reasonable and prudent under the conditions; 2.
speed without regard to the hazards then existing; and 3. speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead." Heller v. Department of Transportation, Bureau of Driver Licensing, 867 A.2d 735, 741 (Pa. Cmwlth.), rev'd on other grounds, 584 Pa. 131, 882 A.2d 461 (2005). While we acknowledge that personal estimates of speed do not amount to probable cause, Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995), the Officer did not rely solely on Weems' excessive speed in pulling him over, but upon the conditions of the roadway as well.*fn6
Officer Maley testified that he believed Weems was driving at about twice the posted speed limit, 50 miles-per-hour in a 25 mile-per-hour zone. Officer Maley did not clock Weems. However, based upon his nine years of experience clocking "tens of thousands of cars with speed timing equipment", he estimated the vehicles speed at 50 miles-per-hour. Officer Maley stated that his estimates are usually "plus or minus two or three miles per hour".*fn7 R.R. at 51a. Officer Maley further testified that the area was primarily residential and "probably our second most highly used pedestrian route," which lacked sidewalks. R.R. at 49a. Officer Maley testified that in addition to Weems' excessive speeding, Weems' vehicle was approaching the intersection of Market Street Road and Boas Street where "you crest over the hill and down the other side into Union Deposit Road, where it then turns into a four lane highway." R.R. at 49a.
In Commonwealth v. Heberling, 678 A.2d 794 (Pa. Super. 1996), the Superior Court determined that where a police officer saw Heberling traveling at a high rate of speed in a 45 mile-per-hour zone and Heberling was nearing an intersection and the crest of a hill, a citation for violating Section 3361 of the Vehicle Code was proper, even if the weather conditions were clear, no other traffic was affected and no pedestrians were at risk. The Superior Court stated in pertinent part as follows:
The second sentence of section 3361 begins with the phrase "consistent with the foregoing" and sets forth several specific examples of conditions and hazards that further define when the general conduct--unreasonable or imprudent speed--constitutes a violation. These situations include, but are not limited to, approaching a hill crest and approaching an intersection. These specifically enumerated situations are not the exclusive or sole situations that, together with inappropriate speed, might constitute violations, because there is a catchall category, i.e., "when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions."
There is no question that speeding alone does not constitute a violation of this section. There must be proof of speed that is unreasonable or imprudent under the circumstances (of which there must also be proof), which are the "conditions" and "actual and potential hazards then existing" of the roadway. These circumstances may include not only the amount of traffic, pedestrian travel and weather conditions, but also the nature of the roadway itself (e.g., whether four-lane, interstate, or rural; flat and wide, or narrow and winding over hilly terrain; smooth-surfaced, or full of potholes; clear, or under construction with abrupt lane shifts.) It is these circumstances under which one's speed may be found sufficiently unreasonable and imprudent to constitute a violation of section 3361, even if the driver has adhered to the posted speed limit.
*** "Approaching a hill crest" and "approaching.an intersection" are "conditions" specifically enumerated in the statute that require a driver to proceed at a safe and appropriate speed. When appellant drove at an excessive speed under these conditions, she violated section 3361.
Heberling, 678 A.2d at 795-797 (emphasis in original).
Officer Maley's testimony that the road was a high pedestrian area, that there were no sidewalks, that Weems was approaching a hill crest and an intersection, that he estimated Weems to be traveling at twice the speed limit and that he believed Weems was not operating his motor vehicle safely, was enough to show that Officer Maley had probable cause to believe Weems was driving at an unsafe speed in violation of 75 Pa. C.S. §3361, while within the Officer's primary jurisdiction. "[P]otential danger is sufficient to establish probable cause and warrant a traffic stop under the former, stricter standard." Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009), citing Commonwealth v. Minnich, 874 A.2d 1234 (Pa. Super.), appeal denied, 584 Pa. 706, 885 A.2d 41 (2005). Thus, as Officer Maley had probable cause and was in hot pursuit of Weems, as previously discussed, pursuant to 42 Pa. C.S. §8953(a)(2) of the MPJA, Officer Maley's arrest of Weems for driving under the influence was proper.
Accordingly, we must reverse the decision of the trial court.
AND NOW, this 17th day of March, 2010 the order of the Court of Common Pleas of Dauphin County in the above-captioned matter is reversed. The suspension of Corey S. Weems' operating privilege pursuant to 75 Pa. C.S. §1547(b)(1)(i) is reinstated.
JIM FLAHERTY, Senior Judge