Commonwealth v. Dignazio

COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHAWN PAUL DIGNAZIO, Appellant

J-A24036-14

No. 3205 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

NOVEMBER 6, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence October 22, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0001757-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.^*

MEMORANDUM BY PLATT, J.:

Appellant, Shawn Paul Dignazio, appeals from the judgment of sentence entered on October 22, 2013, following his conviction of driving under the influence (DUI), highest rate, third offense.¹ The trial court also found Appellant guilty of driving while license suspended, DUI related.² Prior to trial, the Commonwealth withdrew all other charges. (See N.T. Trial, 10/22/13, at 1). On appeal, Appellant challenges the denial of his motion to suppress and the admission of the results of the blood alcohol content (BAC) test. After review, we affirm.

We take the underlying facts in this matter from the trial court's February 10, 2014 opinion.

On or about June 22, 2012 at approximately 2:30 a.m. Troopers [Martin] Wiley and [Patrick] Wade of the Pennsylvania State Police (PSP), Troop K, were on patrol in a marked vehicle. They received a radio report of a "theft in progress" at the Media Diner. It was reported that a heavyset white male left the Media Diner without paying for food. . . . The suspect was driving a dark Chevy Tahoe with dark windows toward Chester on Route 352. The troopers were stationary at the side of the road on Route 352 when [Appellant], traveling from the direction of the nearby Media Diner toward Chester and driving at a fast rate of speed, passed in his Black Chevy Tahoe.

With overhead lights and sirens activated, the troopers pursued [Appellant]. After following for about half a mile[,] they caught up to his vehicle. [Appellant] put on his turn signal and slowly pulled to the side of the road and entered a parking lot. During this period no motor vehicle violations were observed by the troopers. Following the stop[,] the patrol vehicle's speaker system was activated and [Appellant] was ordered to exit the vehicle, to turn away from the troopers, to step away from the vehicle and to lie on his stomach. [Appellant] did not immediately comply but exited the vehicle with both hands raised and walked toward the troopers. Eventually, after being ordered down several times, he responded by getting down to his knees. The troopers could not see into [Appellant's] vehicle and had their guns drawn. He was handcuffed and his pockets were searched.

As he handcuffed [Appellant,] Trooper Wiley detected the odor of alcohol on [Appellant]. Trooper Wiley asked [Appellant] for his name, date of birth and "where he was coming from." He responded that he was coming from the Free Mason's Lodge Meeting and stated that his license was suspended. [Appellant] told Trooper Wiley that his passport was in the center console of his vehicle. Trooper Wiley observed that [Appellant's] speech was slow and slurred when he responded and his eyes were blood shot. The odor of alcohol emanated from his person. [Appellant] was placed in the troopers' patrol vehicle. The odor of alcohol became stronger when [Appellant] was within the confines of the troopers' vehicle. He was transported to theMedia Diner where he was identified. Thereafter he was transported to the PSP Media barracks and a BAC breath test was administered. No field sobriety tests were performed. Trooper Wiley testified that at the point of the stop he did not know "the severity of the theft" and that he did not feel it would be safe to remove the handcuffs and conduct field sobriety tests under the circumstances.

Trooper Wade, a certified operator administered the test using the Datamaster DMT after a twenty minute period during which [Appellant] was observed. The Datamaster DMT that was used was properly certified as accurate in accordance with applicable Department of Health and Department of Transportation regulations and was tested and certified as falling within the acceptable range for calibration. The sample solution used was also analyzed and certified accurate. During the waiting period [Appellant] did not consume alcohol and did not regurgitate. [Appellant] was instructed to blow into the machine through a clean plastic mouthpiece and to blow out a "strong, steady breath[] until he was told to stop." On his first few attempts he stopped before giving a complete breath sample. [Appellant] was told "to stop playing around with the machine" and not to stop breathing before providing a full sample. He was also advised that his failure to provide a full sample would be considered a refusal and that he would face more severe penalties if he failed to provide a sample. Thereafter [Appellant] provided two complete samples and the results of testing, BAC levels of .185 and .187. are reported in Exhibit C-5.

The DataMaster DMT Owners Guide [ ] explains that an "Invalid Sample" message will appear where a reading of BAC decreases during a continuous exhalation. It explains that [t]he alcohol measurement of breath is taken from the later portion of the exhaled breath sample that approximates deep lung air and if the breath sample is exhaled continuously. This reading can be expected to rise, quickly at first, then more slowly as the concentration [of alcohol in the breath] becomes more uniform. If a reading decreases, for any reason the test is terminated and the message "Invalid Sample" is displayed. Additionally, in the Owner's Manual it is explained that during the exhalation of breath the DataMaster measures the alcohol level at a rate of four times every second, it averages every two consecutive readings and compares each average to the last average. If, in the course of the test, any three sequential averages aredetermined to be decreasing when preceded by an upward reading, the sample is determined to be not as expected and the test is terminated as an "Invalid Sample." Exhibit C-5 shows the results of a completed test and there is no indication that an "Invalid Sample" message invalidates these results. [Appellant] offered no evidence that warrants a contrary conclusion.

(Trial Court Opinion, 2/10/14, at 2-5) (some quotation marks and some internal citations omitted).

On July 5, 2013, Appellant filed an omnibus pre-trial motion seeking, in part, to suppress evidence because the state troopers allegedly lacked either probable cause or reasonable suspicion to stop his motor vehicle. (See Omnibus Pretrial Motion, 7/05/13, at 3). Appellant also alleged that the BAC results were inadmissible because the troopers allegedly obtained invalid samples. (See id. at 8-12).

The trial court held a suppression hearing on August 6, 2013. At the start of the suppression hearing, Appellant orally amended his motion to include an allegation that the state troopers lacked probable cause to arrest him. (See N.T. Suppression Hearing, 8/06/13, at 6). Further, Appellant withdrew his claim to suppress the results of the breath test without prejudice to its later renewal via a motion in limine. (See id. at 6-7). On October 11, 2013, the trial court issued an order suppressing certain statements Appellant made to the police but otherwise denying his motion. (See Order, 10/11/13, at 1).

On October 22, 2013, a stipulated non-jury trial took place. As previously stated, the trial court found Appellant guilty of DUI and of drivingwith a suspended license, DUI related.³ The trial court immediately proceeded to sentencing, and sentenced Appellant to an aggregate term of incarceration of not less than one nor more than two years.

The instant, timely appeal followed. On November 21, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925. After receiving an extension of time, Appellant filed a timely concise statement on December 26, 2013. See Pa.R.A.P. 1925(b). The trial court issued an opinion on February 10, 2014. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

1. Did the [trial] court err in refusing to suppress evidence obtained as a result of the Appellant's unlawful arrest for the offenses of [t]heft and/or DUI?

2. Did the [trial] court err in allowing the Commonwealth to enter into evidence the results of [a] breathalyzer test conducted on a DataMaster DMT based on invalid breath tests?

(Appellant's Brief, at 3).

On appeal, Appellant challenges the denial of his motion to suppress, arguing that the state troopers lacked probable cause to arrest him. (See id. at 12-17). When we review a ruling on a motion to suppress, "[w]e must determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawnfrom those findings." Commonwealth v. Holton, 906 A.2d 1246, 1249 (Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation omitted). Because the suppression court in the instant matter found for the prosecution, we will consider only the testimony of the prosecution's witnesses and any uncontradicted evidence supplied by Appellant. See id. If the evidence supports the suppression court's factual findings, we can reverse only if there is a mistake in the legal conclusions drawn by the suppression court. See id.

[Initially, we] observe that the forcible stop of a vehicle constitutes an investigative detention such that there must be reasonable suspicion that illegal activity is occurring. Police are justified in stopping a vehicle when relying on information transmitted by a valid police bulletin. Moreover, even where the officer who performs the stop does not have reasonable suspicion, the stop is nonetheless valid if the radio officer requesting the stop has reasonable suspicion.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013) (citation omitted).

Probable cause is made out

...