Com. v. Smith

917 A.2d 848

COMMONWEALTH of Pennsylvania, Appellee v. David A. SMITH, Appellant.

Superior Court of Pennsylvania.

Submitted June 12, 2006.

Filed January 23, 2007.

Joseph D. Caraciolo, Harrisburg, for appellant.

Lance T. Marshall, Asst. Dist. Atty., Bellefonte, for the Com., appellee.

BEFORE: STEVENS, ORIE MELVIN, and POPOVICH, JJ.

OPINION BY STEVENS, J.:

¶ 1 Appellant, David A. Smith, appeals from a judgment of sentence entered in the Court of Common Pleas of Centre County on October 25, 2005.¹ We affirm.

¶ 2 Smith was arrested for drunk driving on January 13, 2005, after his erratic driving prompted another driver, Jay Witmer, to call 911. N.T. 7/1/05 at 12. Officer David Scicchitano was dispatched to respond to the call, and observed a vehicle which he believed to be the car he was seeking. Id. at 5-6, 15. As he approached the car, he observed it driving on the wrong side of the street. Id. at 6-7. When Officer Scicchitano activated his emergency lights, the car accelerated away from him, then suddenly pulled into a driveway. Id. at 7. Officer Scicchitano pulled in behind the car with his lights still flashing, and confirmed that the license plate on the car matched that given by Witmer's 911 call. Id. at 7-8. Smith exited the car, and quickly walked toward the house. Id. It was only after the officer yelled at him to stop that Smith returned to the car. Id.

¶ 3 Officer Scicchitano explained why he was there, and asked for Smith's drivers' license. Id. at 8-9. Smith responded that his drivers' license had been suspended as the result of a D.U.I. offense. Id. at 10. As the officer spoke with Smith, he detected a strong odor of alcohol on Smith's breath, and observed that Smith's eyes were bloodshot, his face was flushed, and his speech slurred. Id. at 9-10. Officer Scicchitano also observed an open twelve pack of beer and two crushed beer cans in plain view in Smith's car. Id. at 10. Officer Scicchitano asked Smith to perform field sobriety tests, then arrested him for driving under the influence of alcohol. Id. at 10-11. A blood test was performed less than an hour after the initial 911 call was received, revealing a blood alcohol content of .124%. Id. at 12.

¶ 4 Prior to trial, Smith filed an omnibus pre-trial motion, which was denied on July 28, 2005, following a hearing. In addition, he filed a "Motion for Sanctions for Violation of Duty to Disclose," alleging that the Commonwealth destroyed a videotape which would have provided exculpatory information corroborating Smith's assertions that his driving was not unsafe or an indication that he was intoxicated, as well as rebutting the evidence which Smith believed the Commonwealth planned to introduce at trial against him. Motion filed 7/19/05. During the resulting hearing on September 13, 2005, the Commonwealth admitted that the police had inadvertently erased the videotape. N.T. 9/13/05 at 4. Smith requested as a remedy that Officer Scicchitano be precluded from testifying as to Smith's driving, while the Commonwealth suggested that a curative jury instruction was the appropriate remedy. Id. at 3, 5. On September 15, 2005, the trial court filed an order granting Smith's Motion for Sanctions, indicating that "the Jury shall be instructed that the evidence was lost by the Commonwealth, and that Jury be charged consistent with the Standard Jury Criminal Jury Instruction 3.21(b), Failure to Produce Document or Other Tangible Evidence at Trial." Order filed 9/15/05.

¶ 5 The case was never heard before a jury, however. Instead, a non-jury trial was conducted on September 22, 2005, after which Smith was convicted of violating 75 Pa.C.S.A. § 3802(a)(1) and (b), relating to driving under the influence of alcohol; 75 Pa.C.S.A. § 6503.1, relating to habitual offenders; 75 Pa.C.S.A. § 1543(B)(1.1)(ii), pertaining to Driving while operating privilege is suspended or revoked; and 75 Pa.C.S.A. § 1501(a), pertaining to driving without a valid license. On October 25, 2005, he was sentenced to one year ninety days' to two years ninety days' imprisonment, and one years' probation.

¶ 6 He appeals his sentence, raising five issues for our review. Smith's first two claims assert that the trial court erred in denying his motion to suppress. We review challenges to the denial of a suppression motion under the following well-established standard:

When we review the ruling of a suppression court, we must ascertain whether its factual findings are supported by the record and whether the inferences and legal conclusions drawn from those facts are reasonable. Commonwealth v. Lewis, 535 Pa. 501, 504, 636 A.2d 619, 621 (1994). Where the defendant challenges an adverse ruling of the suppression court, we will consider only the evidence for the prosecution and whatever evidence for the defense that remains uncontradicted in context of the whole record. Id. If there is support on the record, we are bound by the facts as found by the suppression court, and we may reverse that court only if the legal conclusions drawn from these facts are in error. Id.

Commonwealth v. Petroll, 558 Pa. 565, 574-575, 738 A.2d 993, 998 (1999).

¶ 7 Specifically, Smith argues that Officer Scicchitano was required to have probable cause to effectuate a valid stop, and that neither the officer's own observations nor the 911 call provided such probable cause. Appellant's brief at 7-10. To support these claims, Smith cites to, inter alia, Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (Pa.2001) and Commonwealth v. Battaglia, 802 A.2d 652 (Pa.Super.2002). Smith is incorrect that Officer Scicchitano was required to have probable cause to effectuate a valid stop, however, since the probable cause standard enunciated by Gleason has been superseded by 75 Pa.C.S.A. § 6308(b), which was amended on September 30, 2003, effective February 1, 2004. Martin v. Commonwealth, 588 Pa. 429, 905 A.2d 438, 450 (2006) (Eakin, J. Concurring) ("Effective February 1, 2004, the General Assembly `lowered the quantum of cause an officer must possess from "articulable and reasonable grounds" [which is equivalent to probable cause] to "reasonable suspicion" to conduct a vehicle stop.'").²

¶ 8 Clearly, the January 15, 2005 stop in question is governed by the amended version of Section 6308, thus Officer Scicchitano was only required to possess reasonable suspicion in order for the stop to be valid.³ Smith does not dispute that Officer Scicchitano had reasonable suspicion to stop him, and Smith is entitled to no relief on his arguments that we should apply the pre-amendment probable cause standard to reverse the trial court.⁴ For the forgoing reasons, we decline Smith's invitation to overturn the denial of his suppression motion on these grounds.

¶ 9 Smith's third and fourth arguments raise constitutional challenges. When an appeal raises the constitutionality of a statute, an appellate court's scope of review is plenary. Commonwealth v. Killinger, 585 Pa. 92, 94, 888 A.2d 592, 593 (2005); Commonwealth v. Noel, 579 Pa. 546, 550, 857 A.2d 1283, 1285 (2004). "There is, however, `a strong presumption that acts of the General Assembly are constitutional, and this Court will not declare such acts unconstitutional unless they clearly, palpably, and plainly violate the constitution.'" Killinger, 585 Pa. at 94, 888 A.2d at 593.

¶ 10 In his third claim, Smith argues "75 Pa.C.S.A. § 3802 et al." violates the substantive due process rights contained in the Pennsylvania and/or United States constitutions. Appellant's brief at 10. The majority of Smith's argument in this regard purports to challenge Section 3802 as a whole. Id. at 10-16. He may only challenge the portions of the statute under which he was convicted, however. Commonwealth v. Spease, 2006 PA Super 323, *¶ 11 n. 4, 911 A.2d 952, 957 n. 4, 2006 Pa.Super. Lexis 3775, **10 n. 4 (Filed 11/13/06) (citing Commonwealth v. McCoy, 895 A.2d 18, 32 n. 8 (Pa.Super.2006) (reiterating that one must be affected by the particular provision of a statute in order to have standing to challenge it)). See also Commonwealth v. Semuta, 902 A.2d 1254, 1260 (Pa.Super.2006).⁵ As we noted above, Smith was convicted of violating Section 3802, Subsections (a)(1) and (b).⁶ We thus turn to Smith's specific challenges to those subsections.

¶ 11 He first asserts that "Section 3802 is unconstitutionally vague and overbroad because it penalizes protected conduct, and is drafted in such a way as to be ambiguous in meaning, leaving a reasonable person unsure as to what conduct is prohibited." Appellant's brief at 12. Smith is entitled to no relief on these grounds, as this exact argument was recently rejected by a panel of this Court in Semuta.⁷ In finding the claim meritless, the Court explained:

When considering a constitutional challenge to Section 3802 on the basis that it is vague, overbroad, and allows for arbitrary enforcement in violation of substantive due process rights guaranteed under the Pennsylvania and United States Constitutions, this Court recently concluded that this provision of the Vehicle Code is not vague or overbroad in that "[i]t gives a person of ordinary intelligence notice that he may not drive after imbibing a sufficient amount of alcohol such that he is incapable of driving safely." Commonwealth v. McCoy, 2006 PA Super 33, 895 A.2d 18, 31 (Pa.Super.2006). We also determined the provision is not overbroad since it does not punish any constitutionally protected activity and reasoned our Supreme Court has recognized that charts are widely available which indicate the amount of alcohol individuals of varying weights may consume, and that an individual of ordinary intelligence who chooses to over imbibe and drive is certainly aware such conduct is prohibited. McCoy, 895 A.2d at 32 (citing Commonwealth v. Mikulan, 504 Pa. 244, 252, 253, 470 A.2d 1339, 1343 (1983) (plurality)). As such, we find no merit in this claim.

Semuta, 902 A.2d at 1260-1261.

¶ 12 Smith next argues that ...