Commonwealth v. Priovolos

245 A.3d 1071 (Table)

COMMONWEALTH of Pennsylvania, Appellant v. Ernest PRIOVOLOS

No. 884 EDA 2020

Superior Court of Pennsylvania.

Filed December 15, 2020

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

The Commonwealth appeals ¹ from the February 5 and February 26, 2020 orders, granting, in part, the omnibus pre-trial suppression motion filed by appellee, Ernest Priovolos. After careful review, we reverse the suppression orders and remand for proceedings consistent with this memorandum.

The suppression court's extensive findings of fact, in relevant part, are as follows:

21. On August 2, 2018, at approximately 12:04 a.m. Officer [Ryan] Crescenzo was on duty in a marked patrol car in the area of Easton Road and Bristol Road, Warrington Township, Bucks County, Pennsylvania.

....

23. At that date and time, Officer Crescenzo observed a white Ford pickup truck travelling on Easton Road with an inoperable third brake light.

24. Officer Crescenzo observed the pickup truck slowing down at the traffic light at the intersection and make a legal right hand turn onto eastbound Bristol Road.

25. There is no shoulder on Bristol Road at that location.

26. Officer Crescenzo followed the pickup truck, at which point the pickup truck turned into the parking lot of a restaurant, Villa Barolo, which was approximately a couple hundred feet from the intersection.

27. After the pickup truck began turning into the parking lot, Officer Crescenzo activated the overhead emergency lights on his patrol car and initiated a traffic stop.

28. Officer Crescenzo initiated the vehicle stop because of the inoperable third brake light.

29. When Officer Crescenzo initiated the vehicle stop, he had no knowledge that [appellee] had been previously stopped for the same motor vehicle code violation.

30. The pickup truck initially pulled into the Villa Barolo parking lot, but then continued driving forward in the parking lot as Officer Crescenzo was placing his patrol car in park.

31. Officer Crescenzo then followed the pickup truck to maintain proper distance, at which point the pickup truck driver slammed on the brakes and exited the vehicle and began screaming at Officer Crescenzo, "Why did you pull me over?"

32. [Appellee] was the driver of the pickup truck.

33. After exiting the pickup truck, [appellee] walked toward Officer Crescenzo's vehicle, at which point Officer Crescenzo exited his patrol car.

34. After repeated requests by Officer Crescenzo for [appellee] to return to his vehicle, [appellee] finally complied and got back into his vehicle.

35. Officer Crescenzo observed that [appellee] was "extremely sweaty [and] dripping sweat," and that he exhibited erratic emotions[,] which fluctuated from being uncooperative, extremely agitated and angry, to being compliant and apologetic.

....

39. After [appellee] returned to his vehicle, Officer Crescenzo approached [appellee] and asked him to produce his driver's license and vehicle registration.

40. [Appellee] was unable to produce his license or registration, and provided the excuse that his license was stolen and he had just recently placed the registration tags on the vehicle.

41. In lieu of his license, [appellee] provided Officer Crescenzo with a health card containing his name and date of birth.

42. In response to Officer Crescenzo's inquiry, [appellee] stated he was coming from work and going home.

43. Officer Crescenzo observed that [appellee's] face appeared "droopy" and that [appellee] began chewing a piece of gum.

44. After obtaining [appellee's] name and date of birth, Officer Crescenzo ran that information through his mobile data terminal, which revealed that [appellee] had an active arrest warrant out of Philadelphia.

45. Officer Crescenzo returned to [appellee], at which time Officer [Aaron] Menzies and two other police officers, Officer [Jay] Aita, and Sergeant [Glen] Gothenburg, arrived on the scene.

46. [Appellee] was asked to exit his vehicle and Officer Crescenzo asked [appellee] to perform the walk-and-turn, one-leg stand and the fingertip-to-nose field sobriety tests.

47. Despite the chewing gum that [appellee] had recently begun chewing, Officer Crescenzo was able to smell the odor of alcohol emanating from [appellee].

48. When Officer Crescenzo asked [appellee] to remove the chewing gum from his mouth, the odor of alcohol increased as [appellee] spoke.

49. Officer Crescenzo further observed that [appellee's] eyes were extremely glassy and bloodshot, and [appellee] was "sweating."

50. From his observations of [appellee], Officer Crescenzo believed, from his training and experience, that [appellee] was impaired and under the influence.

51. Although he was not asked, [appellee] stated to Officer Crescenzo that he had a preexisting medical injury consisting of a bad hip and that he would have difficulty in performing the field sobriety tests.

52. Officer Crescenzo asked [appellee] to first perform the walk-and-turn, or heel-to-toe, field sobriety test.

53. Officer Crescenzo testified that [appellee] understood the instructions but then had difficulty in performing the test in that he failed to take steps in a heel-to-toe fashion, fell off the line multiple times, completed the turn improperly and raised his arms for balance.

54. Officer Crescenzo then asked [appellee] to perform the one-leg[-]stand field sobriety test and count to "Thirty Mississippi."

55. Officer Crescenzo testified that [appellee] understood the instructions but then frequently used his arms for balance, placed his leg on the ground shortly after raising it, and miscounted throughout the test.

56. Although Officer Crescenzo instructed [appellee] to count to Thirty Mississippi when he performed the test, when he demonstrated to [appellee] how to count during the test, Officer Crescenzo only counted to Twelve Mississippi.

57. Officer Crescenzo then asked [appellee] to perform the fingertip-to-nose field sobriety test.

58. Officer Crescenzo testified that [appellee] indicated he understood the directions but then failed to follow those directions by not keeping his head back, by not closing his eyes during the test, and then touching the bridge of his nose instead of the tip of his nose with his pointer finger.

59. Officer Crescenzo then asked Officer Menzies to conduct the Horizontal Gaze Nystagmus Test and the Modified Romaberg Balance Test with [appellee], and observed [appellee] perform the tests.

60. Officer Menzies testified that while he conducted the tests he observed a "multitude" of indicators of impairment in [appellee], including unsteadiness and frequent lifting of his arms for balance.

61. Officer Menzies testified that while conducting the Horizontal Gaze Nystagmus Test, [appellee] had difficulty in keeping still, and Officer Menzies had to instruct [appellee] to hold his own chin to keep it steady so he could focus his attention.

62. Officer Menzies testified that when he conducted the Modified Romberg Balance Test, [appellee] exhibited several indicators of impairment, including eye and body tremors, and [appellee] finished the test in either eighteen or twenty (18 or 20) seconds, and not the required thirty (30) seconds as instructed.

63. Although [appellee] told Officer Crescenzo that he had a hip issue, he did not indicate to Officer Menzies that he was unable to perform any of the requested tests or that he had any pain in his neck or back.

64. Video recordings made by Officer Crescenzo's body camera and vehicle dash cam demonstrating [appellee's] performance of those tests were played in court.

65. Officer Menzies testified that he observed that [appellee] had a very hard time focusing on the pen while performing the Lack of Convergence Test, and [appellee] was swaying back and forth, and exhibited eye and body tremors.

66. Officer Menzies advised Officer Crescenzo of his observations of impairment but did not inform him of his own opinion, as it was Officer Crescenzo's responsibility to determine if [appellee] was impaired.

67. Officer Crescenzo observed that [appellee] performed the Modified Romberg Test in a "significantly shorter" time than he was instructed.

....

71. Based upon his observations of [appellee's] attempts to perform those tests, as well as the totality of circumstances of this vehicle stop, including [appellee's] driving behavior of slowing down, accelerating, jamming on his brakes, exiting the vehicle, and the fluctuating emotions he subsequently exhibited, Officer Crescenzo formed the opinion that [appellee] was incapable of safe driving. He therefore placed [appellee] under arrest.

72. [Appellee] was handcuffed upon his arrest, but he was not advised of his Miranda^[2] rights.

73. After [appellee] was placed under arrest, he asked Officer Crescenzo what the result of his portable breathalyzer test was, and when he was advised it was 0.077, [appellee] stated "that is legal."

74. After his arrest, [appellee] was placed in Officer Crescenzo's patrol car and thereafter transported to the Police Station in order to process the warrant issued out of Philadelphia.

75. During his transport to the police station, [appellee] made statements to Officer Crescenzo while riding in the backseat of the patrol car.

76. Because it was raining heavily, [appellee] was transported to the police headquarters in order to read him the PennDOT Form DL-26B.

Decision and order, 2/5/20 at 4-11, ¶¶ 21, 23-35, 39-67, 71-76 (citations to notes of testimony omitted). ³

The relevant procedural history of this case, as gleaned from the suppression court's opinion, is as follows:

Appellee was ... subsequently charged with various offenses including, inter alia , [driving under the influence of alcohol ("DUI")], 75 Pa.C.S.[A.] § 3802(a)(1). ^[4] Appellee filed a motion to suppress "the observations of him, his statements, field sobriety testing, and his refusal to submit to blood testing." [ See "Motion to Suppress Physical Evidence and Statements," 1/9/19

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