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[U] Commonwealth v. Tomasetti

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
GREGORY C. TOMASETTI, Appellant

NON-PRECEDENTIAL DECISION

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.

MEMORANDUM

MUNDY, 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).[1] 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[1] 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.[2]

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).[3]

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 ...

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