March 12, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
GREGORY C. TOMASETTI, Appellant
Appeal from the Judgment of Sentence May 24, 2013 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0001472-2011
BEFORE: PANELLA, J., MUNDY, J., and STABILE, J.
Appellant, Gregory C. Tomasetti, appeals from the May 24, 2013, aggregate judgment of sentence of four to 23 months' imprisonment, plus a $1, 500.00 fine imposed after he was found guilty of one count of driving under the influence of alcohol – high rate (DUI). After careful review, we affirm.
The trial court summarized the facts and procedural history of this case as follows.
[Officer] Patrick Mazzotta was the only witness to testify at the preliminary hearing. He had been a [p]olice [o]fficer for Peters Township Police Department for five years. Officer Mazzotta was on-duty and traveling on East McMurray Road on March 24, 201 at 11:48 p.m. The posted speed limit is thirty-five miles per hour. At that time, he observed a Chevrolet Avalanche vehicle traveling at a high rate of speed in the opposite lane of traffic cross the center of the road and enter Officer Mazzotta's lane of travel. [Officer Mazzotta] stated that approximately one-quarter of the width of the Chevrolet Avalanche entered his lane, and [Officer Mazzotta] had to swerve to avoid a head-on collision. [Officer Mazzotta] turned his vehicle around and pursued the vehicle. [Officer Mazzotta] travelled at approximately forty-five to fifty miles per hour to catch up to the vehicle and stopped [Appellant] shortly after he turned left onto Hays Road.
Officer Mazzotta approached the vehicle and detected an odor of alcohol coming from [Appellant], who was the sole occupant. He observed that [Appellant]'s eyes were glassy and red. [Appellant]'s speech was slurred. Based on his observations, [Officer Mazzotta] requested that [Appellant] exit the vehicle for the purpose of conducting field sobriety tests.
First, [Officer Mazzotta] administered the horizontal gaze nystamgus test. Six "clues" of intoxication were observed during this test. Next [Officer Mazzotta] administered the nine-step test. [Appellant] initially stated to [Officer Mazzotta] that he could complete the test. However, after failing the test, he stated that he could not perform due to a previous back surgery. [Officer Mazzotta] requested that [Appellant] perform a leg-lift test, but [Appellant] said that he could not perform [the test] due to his supposed previous back surgery. [Officer Mazzotta] then administered an alphabet test, which [Appellant] failed. Lastly, [Officer Mazzotta] administered a portable breath test (hereinafter "PBT"), which was positive for alcohol. Based on this information, [Officer Mazzotta] arrested [Appellant] under suspicion of [DUI].
[Appellant] was then transported to North Strabane Township's Police Department where a breathalyzer test was administered. [Appellant]'s blood alcohol level was tested twice (at 12:43 a.m. and 12:44 a.m.) with the results of .139 and .131.
Trial Court Opinion, 10/4/13, at 3-4.
On July 21, 2011, the Commonwealth filed an information charging Appellant with DUI – high rate. On March 9, 2012, Appellant filed a motion to suppress evidence. The trial court conducted a suppression hearing at which the Commonwealth presented the preliminary hearing testimony of Officer Mazzotta. Appellant stipulated to its content for the purposes of suppression. Furthermore, Appellant did not present any evidence on the issue of suppression. On August 15, 2012, the trial court entered an order denying Appellant's suppression motion. Appellant proceeded to a jury trial on March 1, 2013, at the conclusion of which the jury found Appellant guilty of DUI. On May 24, 2013, the trial court imposed an aggregate sentence of four to 23 months' imprisonment plus a $1, 500.00 fine. Appellant did not file any post-sentence motions. On June 17, 2013, Appellant filed a timely notice of appeal.
On appeal, Appellant raises the following two issues for our review.
1. … Where a police officer observed [a] momentary and minor deviation and observed no other violations other than suspected speeding, did the officer have probable cause to stop [Appellant]'s truck?
2. … Did the trial court err when it admitted the [PBT] evidence and gave no limiting or curative instructions?
Appellant's Brief at 5.
In his first issue, Appellant argues that Officer Mazzotta lacked either reasonable suspicion or probable cause to stop his vehicle, and as a result, the trial court erred in denying his motion to suppress. Appellant's Brief at 11. We begin by noting our well-settled standard of review.
[I]n addressing a challenge to a trial court's denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the Commonwealth prevailed in the suppression court, we may consider only the evidence of the Commonwealth 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. Washington, 63 A.3d 797, 802 (Pa.Super. 2013) (some brackets and citation omitted).
The Fourth Amendment of the Federal Constitution and Article I, Section 8 of the Pennsylvania Constitution, protect individuals from unreasonable searches and seizures. "While warrantless seizures such as a vehicle stop are generally prohibited, they are permissible if they fall within one of a few well-delineated exceptions." Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010) (citation omitted). One such exception is where, "[a] police officer … has reasonable suspicion that a violation of the vehicle code has taken place, for the purpose of obtaining necessary information to enforce the provisions of the code." Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (emphasis in original); accord 75 Pa.C.S.A. § 6308(b). However, our Supreme Court has held that where the Motor Vehicle Code violation is not investigable, Section 6308(b) does not apply and probable cause is required in order for the stop to be constitutional. Commonwealth v. Chase, 960 A.2d 108, 115-116 (Pa. 2008). In this case, the section of the Motor Vehicle Code in question was Section 3309. Although the trial court concluded that Officer Mazzotta had reasonable suspicion to stop Appellant's vehicle, this Court has held that violations of Section 3309(1) of the Motor Vehicle Code are not investigable under Chase and require probable cause. Commonwealth v. Feczko, 10 A.3d 1285, 1291-1292 (Pa.Super. 2010) (en banc), appeal denied, 25 A.3d 327 (Pa. 2011).
In order for a non-investigable traffic stop to be constitutional, [t]he officer must be able to articulate specific facts possessed by him at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in some violation of some provision of the Vehicle Code. Probable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.
Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa.Super. 2013) (internal quotation marks and citations omitted).
As noted above, the Commonwealth avers that the underlying traffic stop was constitutional in this case because Officer Mazzotta had the required probable cause of a violation of Section 3309(1) of the Motor Vehicle Code. Commonwealth's Brief at 16. Section 3309 provides in relevant part, as follows.
§ 3309. Driving on roadways laned for traffic
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply:
(1) Driving within single lane.--A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.
75 Pa.C.S.A. § 3309(1).
Our Supreme Court has held that a single crossing into an opposing lane of traffic does not permit a traffic stop under Section 3309(1). Commonwealth v. Gleason, 785 A.2d 983, 989 (Pa. 2001). Relying on Section 3309(1)'s text, both our Supreme Court and this Court have tied the constitutionality of traffic stops under Section 3309(1) to whether the movement of the vehicle in question created a safety hazard for other vehicles on the road at the time. See id. (stating, "the lack of any evidence at the suppression hearing that Appellant's driving created a safety hazard leads us to agree with the trial court that there was insufficient evidence to support a Section 3309(1) violation"); Fezcko, supra at 1292 (concluding probable cause to stop the appellant's vehicle on the basis of a Section 3309(1) existed where "[g]iven the presence of oncoming traffic, Appellant's deviations from his lane of travel created a significant safety hazard on the roadway"); 75 Pa.C.S.A. § 3309(1) (prohibiting movement between lanes of traffic "until the driver has first ascertained that the movement can be made with safety").
In the instant case, Officer Mazzotta testified to the following facts, which led him to stop Appellant's vehicle based on Section 3309(1).
[Commonwealth]: Were you on duty on March 24, 2011?
[Officer Mazzotta]: I was, yes.
[Commonwealth]: At around 2348 hours?
[Officer Mazzotta]: Yes.
[Commonwealth]: And were you alone or with other people?
[Officer Mazzotta]: I was alone.
[Commonwealth]: Marked unit, were you in uniform?
[Officer Mazzotta]: I was in uniform, yes, in a marked unit.
[Commonwealth]: Anything unusual happen at that time?
[Officer Mazzotta]: Yes. I was travelling in the 800 block of East McMurray Road.
[Commonwealth]: What is the posted speed limit there?
[Officer Mazzotta]: 35 mile an hour.
[Commonwealth]: Anything unusual?
[Officer Mazzotta]: Yes. I was traveling westbound and I observed a tan Chevrolet Avalanche traveling eastbound, appeared to be driving at a high rate of speed and it entered into my lane of travel near the curve by Fulton Drive by approximately one-quarter of the vehicle. I nearly struck him with my police vehicle head-on.
[Commonwealth]: Now, is this roadway laned, is there a center divider?
[Officer Mazzotta]: Yes, there is.
[Commonwealth]: How far over into your lane of travel would the other car have gone?
[Officer Mazzotta]: About a quarter of the width of the vehicle.
[Commonwealth]: Of his vehicle?
[Officer Mazzotta]: Of his vehicle, yes.
[Commonwealth]: Would [it] have crossed over the center line?
[Officer Mazzotta]: Yes.
[Commonwealth]: And that caused you do to do what?
[Officer Mazzotta]: I had to swerve to the westbound shoulder in order to get out of his way.
[Commonwealth]: What did you do next?
[Officer Mazzotta]: I was able to maneuver around in the driveway that was right in front of me. I turned around and I went after the Chevrolet.
N.T., 6/21/11, at 3-5.
Here, Officer Mazzotta unequivocally testified that Appellant's vehicle crossed into his lane of traffic. As a result of this crossing, Officer Mazzotta was required to swerve his car into the shoulder of his own lane, in order to avoid a head-on collision with Appellant. In our view, "Appellant's deviations from his lane of travel created a significant safety hazard on the roadway." Fezcko, supra. As a result, we conclude Officer Mazzotta did possess probable cause of a Section 3309(1) violation in order to stop Appellant's vehicle. See Enick, supra. We further conclude that the trial court properly denied Appellant's motion to suppress. See Washington, supra.
In his second issue, Appellant avers that the trial court erred when it allowed the Commonwealth to elicit PBT evidence during the trial and argue it in the Commonwealth's summation. Appellant's Brief at 22. As with Appellant's first issue, we begin by noting our well-settled standard of review.
The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Furthermore, if in reaching a conclusion the trial court over-rides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa.Super. 2013) (en banc) (internal quotation marks and citations omitted), appeal denied, __A.3d __, 584 MAL 2013 (Pa. 2013).
It is well-established that PBT results are not admissible in a DUI trial in this Commonwealth. Commonwealth v. Marshall, 824 A.2d 323, 328 (Pa.Super. 2003). The trial court concedes error on this point. See Trial Court Opinion, 10/4/13, at 12. Nevertheless, both the trial court and the Commonwealth submit that this error was harmless and does not warrant a new trial. Id.; see also Commonwealth's Brief at 20. "[A]n error may be considered harmless only when the Commonwealth proves beyond a reasonable doubt that the error could not have contributed to the verdict. Whenever there is a 'reasonable possibility' that an error 'could have contributed to the verdict, ' the error is not harmless." Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa.Super. 2013) (en banc) (citation omitted), appeal denied, __A.3d __, 350 WAL 2013 (Pa. 2013).
In support of its conclusion that its error was harmless, the trial court relied on Commonwealth v. Stanley, 629 A.2d 940 (Pa.Super. 1993). In Stanley, the defendant was convicted of DUI, but the Commonwealth was erroneously permitted to introduce evidence of PBT results during its case in-chief. Id. at 941-942. This Court appropriately acknowledged that this was error, but nevertheless concluded that the error was harmless given the Commonwealth's other evidence.
The other evidence supporting appellant's conviction for driving under the influence of alcohol/incapable of safe driving was substantial. Officer Hartle testified with particularity about appellant's performance of the other two field sobriety tests. He stated that appellant was unable to hold her leg up and count as required and that she could not walk a straight line placing one foot in front of the other without swaying from side to side, stepping off to the side and repeatedly raising her arms to regain her balance. He stated that her speech was slurred and difficult to understand. He also testified to detecting an odor of alcohol on her breath and noticing that her eyes were glassy and bloodshot. These observations, combined with the officer's testimony that he saw appellant run a red light, clearly are sufficient to convict on the charge of DUI/incapable of safe driving. Since there was ample evidence to convict appellant without mention of the PBT, the admission of the PBT constitutes harmless error.
Id. at 942-943.
In this case, the trial court pointed out that there was similar substantial evidence against Appellant.
Similar to Stanley, the evidence presented against [Appellant] in the instant matter was overwhelming. Officer Mazzotta testified that [Appellant] almost hit his police vehicle head-on when it crossed into his lane and that the officer had to travel well beyond the posted speed limit to catch up to [Appellant]. When the officer approached [Appellant]'s stopped vehicle, he could detect the odor of an alcoholic beverage coming from inside [Appellant]'s vehicle. [Appellant]'s speech was slurred and his eyes appeared to be glassy/red. Moreover, [Appellant] failed or was unable to perform three field sobriety tests. Most conclusively, the Commonwealth provided in depth testimony that a calibrated and accurate breathalyzer calculated [Appellant]'s BAC was .13 within two hours of driving a vehicle.
Trial Court Opinion, 10/4/13, at 13-14. We also note that the trial court strictly instructed the jury that it was required to find beyond a reasonable doubt that Appellant's BAC was between .10 and .159. N.T., 3/1/13, at 152-153. Based on these considerations, we conclude that while the trial court abused its discretion when it allowed the Commonwealth to discuss PBT testing, said error was harmless in this case. See Fischere, supra; Luster, supra.
Based on the foregoing, we conclude Appellant is not entitled to relief on appeal with regard to either of his two issues. Accordingly, the trial court's May 24, 2013 judgment of sentence is affirmed.
Judgment of sentence affirmed.