Appeal from the Judgment of Sentence of August 13, 2010, in the Court of Common Pleas of Chester County, Criminal Division, at No: CP-15-SA-0000275-2010
The opinion of the court was delivered by: Bowes, J.:
BEFORE: FORD ELLIOTT, P.J.E., BOWES, and OLSON, JJ.
Joseph M. Downey appeals from the August 13, 2010 judgment of sentence of fines and costs imposed after he was convicted of the summary offense of underage drinking. We affirm.
Following his conviction of the offense in question by the magisterial district justice, Appellant filed an appeal with the Court of Common Pleas of Chester County. His de novo trial was held on August 10, 2010. West Chester University Police Officer Matthew J. Paris, who had participated in approximately 1500 prior incidents involving underage drinking, was the sole witness at the proceeding and testified as follows. At 10:00 p.m. on March 17, 2010, he was on patrol in full uniform with West Chester University Police Sergeant Herzog*fn1 on the sidewalk next to the Sharpless Street Garage in West Chester. The officers "heard loud screaming coming from the second floor of the parking garage." N.T., 8/10/10, at 6. They went to the second floor to determine "why the screaming was occurring" and saw Appellant and two individuals who were in his company. Officer Paris "stopped those two individuals first, turned them over to Sergeant Herzog, [and] then made contact with [Appellant]," as he was trying to enter the elevator. Id. at 7.
When Officer Paris approached him, Appellant "was unsteady on his feet," so the officer asked him "if he had been drinking." Id. at 8.
Officer Paris was approximately five feet away from Appellant at that time. Appellant responded that he had not been drinking, but he appeared intoxicated to the officer. Officer Paris explained that the basis for this conclusion was Appellant's "appearance, unsteady on his feet, wavering. Talking to him, [he] was a little slow to respond to me[.]" Id. Additionally, from "approximately five feet away," Officer Paris detected the odor of what in his "belief was an alcoholic beverage emanating from [Appellant]." Id. at 10-11.
Thus, Officer Paris asked Appellant for identification and to perform field sobriety tests, which Appellant failed. After Appellant refused to take a breathalyzer test, he was arrested since he was underage, in a public place, intoxicated, and disturbing the peace. At the police station, Officer Paris administered a portable breathalyzer test, which was positive for the presence of alcohol.
At the close of the Commonwealth's case, Appellant orally moved to suppress the evidence presented against him on the ground that there was "enough in the record to make argument that there was not reasonable suspicion to make a stop[.]" Id. at 26. The trial court rejected that position, convicted Appellant of underage drinking, and sentenced him to fines and costs. This appeal followed. Appellant raises two arguments on appeal:
I. Whether the Trial Court committed an error of law in overruling the Appellant's motion to suppress evidence that was a product of the investigatory stop conducted despite a lack of reasonable suspicion that criminal activity was afoot;
II. Whether the Trial Court committed an error of law in holding that the results of a Portable Breathalyzer Test were admissible in the case[.]
Prior to addressing Appellant's issues, we must first resolve the Commonwealth's contention that Appellant waived any suppression issue by failing to file a written motion to suppress. It relies upon Pa.R.Crim.P. 581(B), which provides: "Unless the opportunity did not previously exist, or the interests of justice otherwise require, [a motion for suppression of evidence] shall be made only after a case has been returned to court and shall be contained in the omnibus pretrial motion set forth in Rule 578. If timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived." The Commonwealth posits that since Appellant did not file a written suppression motion after ...