Commonwealth v. Smith

245 A.3d 1078 (Table)

COMMONWEALTH of Pennsylvania v. Dean Anthony SMITH, Appellant

No. 1475 WDA 2019

Superior Court of Pennsylvania.

Filed December 16, 2020

MEMORANDUM BY MUSMANNO, J.:

Dean Anthony Smith ("Smith") appeals from the judgment of sentence imposed following his conviction of two counts of driving under the influence of alcohol ("DUI"). ^{1 ,2} We affirm.

On July 13, 2018, Pennsylvania State Police Trooper Kenneth Sink ("Trooper Sink"), was on routine patrol in full uniform and operating a marked police cruiser. At approximately 9:46 p.m., Brian Force ("Force") called the Pennsylvania State Police and reported an erratic driver approaching the intersection of Warren Road and Indian Springs Road in White Township, Indiana County. Force indicated that a brown Ford Explorer, registration KGT-0318, had driven erratically through the Indiana Regional Mall parking lot and proceeded west on Warren Road.

Trooper Sink, informed by dispatch of the phone call and the brown Ford Explorer, proceeded towards Warren Road. Upon arriving at the intersection of Warren Road and Indian Springs Road, Trooper Sink observed a brown Ford Explorer matching the description from the dispatch. Trooper Sink pulled behind and followed the Ford Explorer.

The Ford Explorer continued onto Ben Franklin Road. ³ After following the Ford Explorer for an unknown amount of time and an unspecified distance, Trooper Sink observed the vehicle cross the double-yellow center line, with its front and rear driver-side tires. Based upon this observation, Trooper Sink initiated a traffic stop. Trooper Sink exited his vehicle and approached the Ford Explorer. Trooper Sink asked the driver, later identified as Smith, for identification. Smith appeared confused at first, then handed his entire wallet to Trooper Sink. Smith told Trooper Sink to find the driver's license himself. Trooper Sink was able to locate Smith's driver's license in his wallet.

During the stop, Trooper Sink observed a strong odor of alcohol emanating from Smith, and noticed that Smith's eyes were bloodshot and glassy. Trooper Sink directed Smith to exit the vehicle and perform field sobriety tests ("FSTs"). After observing Smith perform the FSTs, Trooper Sink concluded, based upon his prior observations and the FSTs, that Smith was impaired, and placed Smith under arrest for suspected DUI.

While Trooper Sink transported Smith to the Indiana Regional Medical Center ("IRMC"), Smith told Trooper Sink about his military history and said that his hands were deadly weapons. Upon arrival at the IRMC, Trooper Sink read Smith the Pennsylvania State Police DL-26b implied consent form ("DL-26b Form"). Additionally, Trooper Sink advised Smith of his right to refuse chemical testing. Smith verbally consented to the blood test. ⁴ Smith's blood was drawn at IRMC. Subsequent chemical testing revealed that Smith's blood alcohol content ("BAC") was 0.245%.

On December 10, 2018, Smith was charged with two counts of DUI and one count each of driving within single lane and careless driving. ⁵ Smith filed an Omnibus Pre-Trial Motion. Smith argued that Trooper Sink lacked the requisite probable cause to effectuate a traffic stop, where he had only observed Smith crossing the center line one time. Additionally, Smith asserted that his consent to the blood draw was coerced by Trooper Sink.

On February 13, 2019, the suppression court conducted a hearing on Smith's Motion. At the end of testimony, Smith made an oral Motion to supplement his Omnibus Pre-Trial Motion with a brief, because the Commonwealth had failed to preserve the Mobile Video Recorder ("MVR") dash camera recording for trial. ⁶ The trial court granted Smith leave to file a supplemental brief to his Motion.

Smith filed his supplemental brief on May 13, 2019, in which he incorporated the arguments of his Omnibus Pre-Trial Motion. Additionally, Smith claimed that his consent to the blood draw was coerced when Trooper Sink kept Smith in handcuffs, told him that restoration of his license may cost up to $2,000.00, and stated that Smith would be going to jail that night if he did not consent to the blood draw. Further, Smith argued that the Commonwealth committed a Brady⁷ violation when Trooper Sink failed to request the MVR dash camera video, and that he did so in bad faith. The Commonwealth filed a brief in response. On May 22, 2019, the trial court denied Smith's Omnibus Pre-Trial Motion and issued an Order and Opinion explaining its factual findings and reasons for denying Smith's Motion.

Following a stipulated non-jury trial on September 9, 2019, Smith was convicted of two counts of DUI, and acquitted of driving within single lane and careless driving. On the same day, the trial court sentenced Smith to an aggregate sentence of one to five years in prison, with credit for time served, plus fines and costs.

Smith filed a timely Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

Smith now presents the following issues for our review:

1. Whether probable cause/reasonable suspicion existed to justify a traffic stop of [Smith]'s vehicle for a suspected violation of 75 Pa.C.S.[A.] § 3309(1) ?

2. Whether [Smith]'s consent to [the] draw blood was coerced by the circumstances surrounding the request for a blood sample, as well as[ ] the threat of a possible $2,000.00 restoration fee to restore [Smith]'s driver's license if he were to refuse a warrantless blood test?

3. Whether the [s]uppression [c]ourt erred as a matter of law in finding that the MVR recording capturing the relevant portions of the traffic stop and arrest did not constitute materially exculpatory evidence?

4. Whether the [s]uppression [c]ourt erred as a matter of law in finding that the willful decision by the arresting officer to not preserve the MVR recording[,] which captured the relevant portions of the traffic stop and the arrest[,] did not constitute bad faith on the part of the arresting officer?

Brief for Appellant at 5.

All of Smith's claims challenge the trial court's denial of his Omnibus Pre-Trial Motion. We adhere to the following standard of review:

We may consider only the Commonwealth's evidence 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. An appellate court, of course, is not bound by the suppression court's conclusions of law.

Commonwealth v. Hampton , 204 A.3d 452, 456 (Pa. Super. 2019). Such an inquiry must take into account the totality of the circumstances. Commonwealth v. Delvalle , 74 A.3d 1081, 1085 (Pa. Super. 2013).

In his first claim, Smith argues that Trooper Sink lacked the requisite probable cause to conduct a traffic stop. Brief for Appellant at 15. Smith asserts that his vehicle only crossed the center line a single time. Id. Smith acknowledges that his vehicle crossed the line by the width of his tire. Id. However, Smith contends that this infraction was a "momentary and minor deviation from the lane of travel," and did not rise to the level of probable cause necessary for Trooper Sink to initiate a vehicle stop. Id.⁸

Probable cause is required to effectuate a traffic stop based on a suspected violation of the Motor Vehicle Code, including driving within single lane. ⁹ Commonwealth v. Feczko , 10 A.3d 1285, 1288 (Pa. Super. 2010). To satisfy this standard, an officer must be able to "articulate specific facts possessed [ ] at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the [Motor Vehicle] Code." Id. at 1291 (citation, quotation marks and emphasis omitted).

"Whether an officer possesses probable cause to stop a vehicle for a violation of [ ] section [3309(1) of the Motor Vehicle Code] largely depends upon [ ] whether a driver's movement from his lane is done safely." Commonwealth v. Cook , 865 A.2d 869, 874 (Pa. Super. 2004). In analyzing whether a driver has created a safety hazard by failing to drive within a single lane, this Court has considered factors such as whether there is oncoming traffic in the opposite lane, whether the driver overcorrects by rapidly jerking the vehicle back into the appropriate lane, the degree to which the vehicle crosses the center or fog line, the number of times the vehicle crosses either line, and the distance over which the driver is observed to have made these mistakes. See Feczko , 10 A.3d at 1292 (finding that police had probable cause to conduct a traffic stop for a violation of driving within single lane where the driver of a vehicle was "weaving within his lane and crossed out of his lane of travel on numerous occasions[ ]" and, that the driver had created a safety hazard where, despite other vehicles not needing to take evasive action, there were vehicles in the lane adjacent to the defendant); Cook , 865 A.2d at 874-75 (holding that the police officer had probable cause to stop the defendant, where the officer received information that the defendant's car was being driven erratically; he followed the defendant for one mile; and he observed the defendant cross the fog line by half of a car width three times and rapidly jerk back into the traffic lane).

Additionally, we are cognizant that, "[w]hen the underlying source of the officer's information is an anonymous call, the tip should be treated with particular suspicion." Commonwealth v. Washington , 63 A.3d 797, 803 (Pa. Super. 2013) (citation omitted). "However, a tip from an informer known to the police may carry enough reliability for the police to conduct an investigatory stop." Id. (citation omitted).

Trooper Sink testified that he had received a dispatch informing him of Force's ¹⁰ telephone call, which reported a brown ...