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[U] Commonwealth v. Hillard

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL HILLARD, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of January 22, 2013 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000700-2012

BEFORE: PANELLA, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Michael Hillard, appeals from the judgment of sentence entered on January 22, 2013, as made final by the denial of Appellant's post-sentence motion on March 7, 2013. We affirm.

On May 11, 2012, Appellant was arrested for driving under the influence of alcohol. On October 12, 2012, Appellant filed a pre-trial motion and claimed, amongst other things that: 1) all of the Commonwealth's evidence must be suppressed, as the police did not have reasonable suspicion or probable cause to initially stop his vehicle, and 2) his breath alcohol concentration test results must be suppressed, as the police did not "continuously observe [Appellant] for the requisite [20] minute period of time before . . . the first alcohol breath test." Appellant's Pre-Trial Motion, 10/12/12, at 5-6.

During the suppression hearing, the Commonwealth presented the testimony of the arresting officer, Pennsylvania State Trooper Christopher Shaw Pifer. Trooper Pifer testified that, at approximately 11:53 p.m. on May 10, 2012, he was on routine patrol in Morris Township and was driving his patrol car south on State Route 53. N.T. Suppression Hearing, 11/20/12, at 9. The Trooper testified that, at that time, he observed a silver SUV that was also traveling south on State Route 53. Id. The Trooper later identified Appellant as the driver of the SUV. Id. at 12. The Trooper testified that, when he initially observed Appellant's SUV, the SUV was "straddling the center line" of the road. Id. at 10 and 12.

As the Trooper testified, he followed Appellant's SUV "for a while" and determined that the vehicle was traveling 50 miles per hour in a 35 mile per hour zone. Id. at 10. The Trooper testified that he "continued to follow the vehicle until [he] found a safe location to activate [his] lights for a traffic stop" and that, when they reached a place of safety, the Trooper activated his lights and pulled Appellant over to the side of the road. Id. Trooper Pifer testified that he effectuated the traffic stop at 11:53 p.m. on May 10, 2012. Id. at 16.

Trooper Pifer testified that he approached Appellant's vehicle, spoke with Appellant, and concluded that Appellant was driving under the influence of alcohol. Id. at 11. After Appellant failed field sobriety tests, Trooper Pifer placed Appellant under arrest, handcuffed Appellant, and drove Appellant back to the barracks. Id. As the Trooper testified, he "physically took off to return to the" barracks at 12:03 a.m. on May 11, 2012, and arrived at the barracks at 12:19 a.m. Thus, the Trooper was watching over Appellant – either on the side of the road or in the patrol car – from approximately 11:53 on May 10, 2012 until 12:19 a.m. on May 11, 2012.

Trooper Pifer testified that, when they arrived at the barracks, he brought Appellant into the patrol room and began to fill out paperwork. The Trooper then administered a breath alcohol test on Appellant at 12:37 a.m. Id. at 16-17. As Trooper Pifer testified, during the entire time they were in the barracks, Appellant was "within five or ten feet" from the Trooper and was "in [the Trooper's] view the whole time." Id. at 11 and 18. Further, the Trooper testified that, during the entire time he was with Appellant – from approximately 11:53 a.m. on May 10, 2012 until 12:37 a.m. on May 11, 2012 – Appellant did not: eat food, drink, vomit, consume anything, take anything into his mouth, belch, or burp. Id. at 11 and 19.

The trial court denied Appellant's pre-trial motion on November 30, 2012 and, on December 14, 2012, Appellant proceeded to a bench trial. During trial, Trooper Pifer testified consistently with his suppression hearing testimony. See N.T. Trial, 12/14/12, at 42-83.

At trial, the Commonwealth also introduced evidence of Appellant's breath alcohol concentration. As Trooper Pifer testified, Appellant's first breath test revealed that Appellant's breath alcohol concentration was .083; Appellant's second breath test revealed that Appellant's breath alcohol concentration was .082. Id. at 56.

Further, during Appellant's trial, the Commonwealth introduced the testimony of Pennsylvania State Trooper Richard Magnuson. Trooper Magnuson testified that he performed monthly calibrations on the particular device that the State Police used to test Appellant's breath alcohol concentration.[1] Id. at 27. Trooper Magnuson testified that, prior to Appellant's test at 12:37 a.m. on May 11, 2012, the Trooper had last calibrated the device at 1:36 p.m. on April 11, 2012. Id. at 26-29; Commonwealth's Exhibit 2. During the April calibration, the device had an average deviation of 0.0014. N.T. Trial, 12/14/12, at 26-29;

Commonwealth's Exhibit 2. Moreover, Trooper Magnuson testified that he performed a yearly calibration on the device and that, during the June 26, 2011 yearly calibration, the device had: a 0.000 average deviation for a 0.05 solution; a 0.000 average deviation for a 0.10 solution; and, a 0.002 average ...


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