Commonwealth v. Rakowski

2010 PA Super 3,___A.2d___

Decided: January 14, 2010

The Superior Court affirmed the judgment of sentence upon defendant's conviction of driving under the influence though defendant claimed the evidence was insufficient for a jury to convict.

On November 20, 2007, a Trooper received a call that two vehicles had hit some debris on Interstate 83, Fairview Township, York County. When the Trooper arrived at 7:00 a.m. he saw two vehicles and approached the nearest vehicle. The driver, Rakowski, appeared to be asleep and was startled by the Trooper awakening him. When Rakowski opened the vehicle door, the Trooper detected an odor of alcohol emanating from Rakowski. His speech was also slurred and he had bloodshot and glassy eyes. Since there was no area where the Trooper could safely conduct a field sobriety test, Rakowski was placed under arrest for DUI. The Trooper conducted an inventory search of the vehicle and found no alcoholic beverages in the vehicle. Rakowski was taken to York Hospital for blood alcohol content testing, which returned at .188.

At trial, Rakowski claimed he drank alcohol after the accident after the car was inoperable. Trooper testified that at the preliminary hearing he questioned Rakowski concerning the type and amount of alcohol he had consumed. Rakowski listed several drinks he had consumed prior to driving the morning of the accident. Rakowski also stated he had hit the object at approximately 6:10 or 6:15 a.m., which was within the two hour window to draw blood under 75 Pa.C.S. 3802. The operator of the second vehicle to hit the debris also testified that he did not observe Rakowski consume anything even though the two had conversed prior to the Trooper's arrival. This was at odds with Rakowski's assertion that he had consumed alcohol after hitting the debris but prior to police arrival. Rakowski was found guilty of DUI, second offense, highest rate and appealed. On appeal Rakowski argued that the evidence was insufficient for a jury to convict. 

The Superior Court held that viewing the evidence in the light most favorable to the verdict winner, (The Commonwealth), and drawing all reasonable inferences therefrom, the jury was justified in concluding Rakowski was driving his vehicle drunk at 6:10 or 6:15 a.m. when he hit the debris. The testimony of the other operator that hit the debris about conversing with Rakowski and unequivocally stating that he did not observe Rakowski consume anything during the hiatus of police arrival was is contrast to Rakowski's account.

Given the disparate accounts of the events, it was for the jury to weigh the evidence and determine who to believe. In this case the jury believed the evidence presented by the Commonwealth. The court held, "as a result, we will not invade the jury's bailiwick in this situation, especially given the fact that the record is supportive of their verdict finding Appellant guilty."

The claim by Rakowski that the jury's verdict was against the weight of the evidence was found to be without merit. The judgment of sentence was affirmed.

Commonwealth v. Bailey

2009 PA Super 230,___A.2d___

Decided: December 1, 2009

The Superior Court affirmed a conviction even when the defendant's consent to search was not voluntary, but due to his arrest, the police were lawfully permitted to tow his vehicle and conduct an inventory search and inevitably found a firearm.

In late December, 2005, based upon an anonymous tip, police went looking for Bailey, who was wanted on a warrant for simple assault. A police officer recognized Bailey driving toward him and signaled for him to pull over. The officer informed Bailey that he was being arrested on the warrant for simple assault and Bailey was handcuffed. After Bailey was handcuffed, a backup officer claimed that an informant told him that Bailey was known to carry a gun. The arresting officer did ask Bailey for consent to search his vehicle and Bailey consented. Bailey was not given Miranda warnings until he was taken to the police station.  A search of the vehicle revealed a 9mm handgun in the console. Neither Bailey nor a passenger claimed knowledge of the handgun.

Prior to a trial, Bailey filed a suppression motion to have the gun suppressed claiming his permission to search the vehicle was not given voluntarily and there was no other reason to search the vehicle.

The Commonwealth argued that the permission to search was valid, but even if it was not valid consent the evidence should not be suppressed.  Because the police had the authority to tow the vehicle and pursuant to policy an inventory search would have been conducted, the handgun would have inevitably been discovered. The trial court agreed that the consent had been coerced and was invalid.  However, it applied the inevitable discovery doctrine and denied the motion.

On appeal, the only issue before the Superior Court was whether the gun would have been discovered absent the invalid search. The inevitable discovery doctrine provides in part, "If the prosecution can establish by a preponderance of the evidence that illegally obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible." Commonwealth v. Gonzalez, 979 A.2d 879 (2009). 

The authority for the police to tow the vehicle is found in 75 Pa.C.S. §3352(c)(3), which provides for police to tow a vehicle when a person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.

Because the police would have been permitted to tow Bailey's vehicle pursuant to his arrest and because that police department routinely conducts inventory searches whenever a vehicle is towed, the scope of the inventory search allowed police to look into obvious storage areas, such as the center console.  The fact that the search was not yet an inventory search was immaterial, because had the "consent search" not been performed, the console would have been searched during the required inventory.

The court held the record supported the suppression court's determination that the evidence was not subject to suppression.

Commonwealth v. Segida

2009 PA Lexis 2785,___A.2d___

Decided: December 29, 2009

The Supreme Court reversed the order of the Superior Court which concluded that the Commonwealth had not established when defendant was driving, and thus had failed to prove that defendant was incapable of safe driving at the time he was driving.

On September 19, 2004, Officer Hillyard was dispatched to investigate a one car accident. He arrived in a few minutes to find a vehicle at the top of a hillside in some brush, rotated 180 degrees. Segida, with his brother were standing near the vehicle. Segida acknowledged to being the owner of the vehicle and he lost control of the vehicle while arguing with his brother and that he had been drinking at a local club. Officer Hillyard detected a strong odor of alcohol coming from Segida and asked him to perform field sobriety test. Segida performed all the tests badly and based on this, Officer Hillyard concluded Segida was incapable of safe driving at that time and placed him under arrest. Segida was taken to the hospital for blood alcohol testing which revealed Segida had a BAC of .326 percent.  The time was not established at trial

Segida was charged with two counts of DUI, 75 Pa.C.S. §3802(a)(1), general impairment and 75 Pa.C.S. §3802(a)(1), highest rate of alcohol. Segida was found guilty of both counts. Segida appealed to the Superior Court arguing that the evidence was insufficient to sustain either one of these DUI convictions because the Commonwealth had failed to produce evidence of when he drank, when he drove or when the accident occurred. The Superior Court held that the Commonwealth had not established when Segida was driving and thus failed to prove that Segida was incapable of safe driving at the time he was driving. Additionally, the Superior Court held that the Commonwealth had not precluded the possibility that Segida ingested alcohol after the accident.

The Court agreed with the Superior Court that 75 Pa.C.S. §3802(a)(1), is an "at the time of driving offense."  The Court reasoned that, "the only relevant time period is that span of time during which an individual is incapable of safe driving due to alcohol intoxication." The Court held that the type of evidence that Commonwealth may present in a prosecution under 75 Pa.C.S. §3802(a)(1) include but are not limited to: the offender's actions and behavior, including manner of driving and ability to pass field sobriety test; demeanor, including toward the officer; physical appearance, particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol, and slurred speech. Blood alcohol may be added to the list, although it is not necessary, and the two hour time limit does not apply. BAC is admissible only insofar as it is relevant to and probative of the accused's ability to drive safely at the time he/she was driving."

The Court held, "that in a prosecution under 75 Pa.C.S. §3802(a)(1), the Commonwealth must prove that the accused was driving, operating or in actual physical control of the movement of a vehicle during the time when he/she was rendered incapable of doing so safely due to the consumption of alcohol." In this case the circumstantial evidence was sufficient to establish beyond a reasonable doubt Segida was incapable of safe driving due to his ingestion of alcohol.   The Commonwealth does not have to prove as an element that no alcohol was ingested after driving.

Commonwealth v. Gallagher,

PICS Case No. 10-1167 (C.P. Philadelphia Jan. 20, 2010) Rogers, J. (8 pages).

License Suspension

A first-time DUI offender is not subject to the mandatory suspension of operating privileges. The court granted licensee's appeal from his license suspension.

Licensee was convicted in Philadelphia Municipal Court of "general impairment" driving while under the influence under section 3802(a)(1) of the Motor Vehicle Code in a stipulated trial. The municipal judge added to the standard first-time offender sentence a few days of jail time. A few months later, his driving privileges were suspended. He appealed, and the trial court remanded to municipal court to allow modification of the judgment of sentence. The municipal court reaffirmed the sentence and added that he was also being sentenced under section 3804(A)(1) of the Motor Vehicle Code.

Section 3802(a)(1) defines the elements of general impairment as they relate to driving under the influence of alcohol. Section 3804(a)(1) provides the penalties for a first offense like this one, Section 3804(e) provides for suspension of operating privileges, but only for a second-offense violator. Even if the first sentence were not amended to clarify that it was a first offense, the mere fact that the sentence added some jail time did not transform the conviction to a second-time offender.

Accordingly, the court granted licensee's appeal.

Commonwealth v. Au,

___ A.2d ___, 2009 WL 455152 (Pa. Super., 12-01-09)(Centre)

Search & Seizure: Escalation of "Mere Encounter" into "Investigative Detention"

A sharply-divided en banc Superior Court panel upheld the suppression of evidence, finding that a police request for a passenger's identification escalated a mere encounter into an investigative detention, which was unsupported by probable cause.  Officer Ryan Hendrick was on patrol at approximately 12:30AM when he noticed a lone car parked in a restaurant parking lot.  The officer testified that the restaurant would have closed much earlier, and that the lot had been empty minutes before.  He parked at an angle behind the car, illuminating the passenger side with his headlights.  He did not activate his emergency lights, and the subject car was not blocked in.  He then approached the car on foot, and asked what the occupants were doing.  One of the passengers replied that they were "hanging out."  The officer then asked each occupant for identification, and when the front-seat passenger opened the glove compartment, two bags of marijuana were observed inside.  Additional marijuana was found as the officer then opened the driver's door and called for backup.

The trial court suppressed the marijuana, finding that a mere encounter "ripened" into an investigative detention unsupported by reasonable suspicion at the point where Officer Ryan asked for ID.  Five judges in the en banc panel agreed with this analysis.  Judge Bender, writing for the majority, stated as follows:  "While a person in Appellee's situation may have surmised that the officer initiated the encounter to merely check upon the vehicle and its occupants, the subsequent request for identification from all of the vehicle's occupants would have signaled to any reasonable person that the officer was unsatisfied with the response that the occupants were just hanging out, and that the officer wanted to investigate further."  Because the passenger would have not felt free to terminate the encounter, according to the majority, the interaction became an investigative detention when ID was requested.

The dissent, authored by Judge Shogan and joined by three other judges, detailed several cases involving police requests for identification, where the interaction was held to be a mere encounter.  Citing Commonwealth v. Campbell, 862 A.2d 659, 665 (Pa. Super. 2004), appeal denied, 584 Pa. 699, 882 A.2d 1004 (2005), Judge Shogan stated, "this Court held that a police officer did not unreasonably intrude on a protected privacy right of a passenger in a lawfully stopped vehicle when the officer asked the passenger to identify himself."

Editor's Note:  This summary was prepared by Max P. Little, PDAA's Traffic Safety Resource Prosecutor.  The Centre County District Attorney's Office filed a petition for allowance of appeal in the Pennsylvania Supreme Court on December 23, 2009.  The case is docket at No. 1005 MAL 2009 in that court.  On January 5, 2010, Au advised the court he would not be filing a brief in opposition to the petition.

Commonwealth v. Beck,

PICS Case No. 10-1175 (C.P. Crawford Dec. 10, 2009) Spataro, J. (4 pages).

DUI Reasonable Suspicion: Driving on Roadways Laned for Traffic

A police officer had reasonable suspicion to stop defendant's vehicle where he observed defendant traveling for several blocks with his wheels riding on the double yellow lines. Motion to suppress denied.

While on routine patrol, a police officer observed defendant make a wide turn in his pickup truck. The officer followed defendant and recorded his observations with the video camera inside the cruiser. The officer observed that for four blocks, defendant drove with his wheels on the double yellow lines. The officer stopped defendant and noticed that he had bloodshot eyes and slurred speech, and the smell of alcohol was on his breath.

Defendant sought either habeas corpus relief or the suppression of evidence. The court denied defendant's motion, determining that the officer had reasonable suspicion to stop defendant for violating Section 3309 of the Motor Vehicle Code. Section 3309, regarding diving on roadways laned for traffic, provides that: "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety."

The court noted that defendant did not operate his vehicle within a single lane, instead driving directly on the double yellow line. Coupled with the wide turn, the court determined that the officer was justified in initiating the stop.

Accordingly, the court refused to suppress the evidence from the stop.