Commonwealth v. Anthony

1 A.3d 914, 2010 Pa. Super. 127, 2010 Pa. Super. LEXIS 1490, 2010 WL 2804337
CourtSuperior Court of Pennsylvania
DecidedJuly 19, 2010
Docket1544 WDA 2008
StatusPublished
Cited by7 cases

This text of 1 A.3d 914 (Commonwealth v. Anthony) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Anthony, 1 A.3d 914, 2010 Pa. Super. 127, 2010 Pa. Super. LEXIS 1490, 2010 WL 2804337 (Pa. Ct. App. 2010).

Opinion

OPINION BY BENDER, J.:

¶ 1 Harry A. Anthony, Sr., appeals the judgment of sentence entered following his conviction of Driving Under Influence of Alcohol or Controlled Substance and Violation of Vehicle Equipment Standards, 75 Pa.C.S. §§ 3802(d)(l)(i), (hi), (d)(2), 4107(b)(2) (respectively). Anthony contends that the trial court erred in denying his motion to suppress evidence of his use of a controlled substance on the basis that the arresting officer lacked reasonable suspicion to conduct a stop. Anthony also contends that the evidence was not sufficient to sustain his conviction under section 3802(d)(2) which prohibits driving while under the influence of a controlled substance to a degree that impairs an individual’s ability to drive safely. For the reasons that follow, we conclude that the initial stop was unlawful, requiring exclusion of all evidence seized pursuant thereto. Accordingly, we reverse the judgment of sentence.

¶ 2 In its opinion following the hearing on Anthony’s omnibus pre-trial motion, the trial court characterized the facts surrounding Anthony’s arrest as follows:

On the evening of November 28, 2006, [Pennsylvania State Trooper Jeremy Bowser] was sitting in his patrol car at the intersection of State Routes 28/66 and 85 when he observed a Ford Escort driven by Defendant approach the intersection. Noting that the vehicle had objects[ 1 ] hanging from the rear view mirror in violation of 75 Pa.C.S. § 4107(b)(2), Bowser pulled out from a parked position and followed Defendant. He initiated a traffic stop ... at approximately 8:10 P.M. for that violation. He did not observe any other traffic violations by Defendant or any indications that Defendant was driving unsafely.
When Defendant pulled over, Bowser approached the passenger side of his vehicle and spoke to the occupants of the car through the rolled-down window. The first thing he noticed was the smell of alcohol coming out of the car. He also noticed that there was an open case of beer in the back with at least one beer removed. Both Defendant and the passenger had glassy eyes. When asked for his driver’s license, Defendant informed Bowser that his license was suspended. The officer confirmed Defendant’s license suspension, which was DUI-related. Bowser also discovered that Defendant’s passenger had an outstanding warrant on a felony charge. Upon learning this, Bowser called for a backup state trooper.
After the backup officer arrived, the passenger was instructed to exit the vehicle at 8:28 P.M. The backup officer *917 searched the passenger and took him into custody. At 8:30 P.M., Defendant was instructed to exit the vehicle and was patted down. At 8:32 P.M., Bowser arrested Defendant for driving while suspended DUI-related. He was given Miranda warnings in front of his vehicle at 8:35 P.M. and signed a written waiver at 8:38 P.M. Bowser had observed two open containers of beer in the car when Defendant climbed out. Bowser asked Defendant if he had been drinking. Defendant replied that he had been drinking a beer while driving, and another one earlier in the evening. Bowser could smell a strong odor of alcohol on Defendant’s breath as he talked with him. He asked if Defendant had taken any drugs. Defendant denied it. However, Defendant subsequently indicated that he had taken a 500 milligram Vico-din pill for pain, and that the pill was not prescribed. Bowser then transported Defendant to the state police barracks for further evaluation.
At approximately 9:08 P.M., Bowser gave Defendant a portable breath test for alcohol at the station, indicating to Defendant that because he had been driving under suspension DUI-related, he could be charged with Driving Under Suspension — DUI related pursuant to § 1543(b)(l.l)(i) of the Motor Vehicle Code [see 75 Pa.C.S. § 1543(b)(l.l)(i) ] if the result was .02% or greater. The result of the PBT was .000%. Bowser gave Defendant a second Miranda warning at 9:10 P.M., and again questioned Defendant about his intake of illegal drugs. Bowser told Defendant the fact that his eyes were “so glazed over” was not consistent with just drinking one beer and taking one Vicodin pill. Defendant then admitted to Bowser that he had smoked marijuana at approximately 4:00 P.M. Because of these admissions and Bowser’s personal observations of Defendant, Bowser contacted Trooper Ronald Vetovich, Jr., the state police’s certified drug recognition expert, and asked him to perform a drug recognition evaluation (DRE) of Defendant for consumption of drugs other than alcohol.
At the hearing, Vetovich testified that he had been a Pennsylvania State Trooper for over seventeen years. Ve-tovich received a total of nine days of training in a specific twelve-step evaluation process used to assess persons suspected of being under the influence of drugs. He then had fourteen days of field work in the presence of instructors in which he actually evaluated individuals suspected of being under the influence of drugs. Having successfully completed this course, Vetovich was certified as a drug recognition expert. He has also been certified to train others to become drug recognition experts.
Vetovich began his DRE of Defendant at 10:05 P.M. At the conclusion of the evaluation process, Vetovich concluded that Defendant was under the influence of drugs to the extent that he was unable to safely operate a vehicle. Specifically, Vetovich noted that Defendant’s coordination was exaggerated, his eyes were glassy, red and bloodshot, and his eyelids were droopy. Vetovich testified that in the walk and turn test, Defendant performed the turn improperly and stopped walking on step one of the return walk. In the Romberg balance test, Defendant was swaying approximately two inches from the front to rear and from left to right.
In the one-leg stand test, Defendant swayed while balancing and had to be told to look at this foot while counting. In his concurrent counting of time, Defendant was also somewhat impaired. In the finger-to-nose test, Defendant twice failed to touch the tip of his nose. *918 Vetovich testified that for the reasons given in page four of his report, it was his opinion that Defendant was intoxicated and impaired at the time Vetovich examined him and that Defendant was unsafe to operate a motor vehicle at the time he was stopped by Trooper Bow-ser. See Commonwealth Ex. 2.
Based upon his own observations, Ve-tovich’s conclusions, and Defendant’s admissions regarding drug use, Bowser placed Defendant under arrest for DUI at 10:40 P.M. Defendant consented to have his blood drawn and was taken to the hospital. His blood was drawn at 11:07 P.M. The state police subsequently received a toxicology report on Defendant’s blood. The report indicated that the blood tested positive for benzoy-lecgonine, a metabolite of cocaine, which is a DEA Schedule II controlled drug. See Commonwealth Ex. 1. The amount of benzoylecgonine found was 280 nano-grams per milliliter. Id. Defendant’s blood also tested positive for “cocaine cross-reactives.” Id. The blood test did not show the presence of cannabinoids (Marijuana), opiates, amphetamines, barbiturates, or alcohol.

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Cite This Page — Counsel Stack

Bluebook (online)
1 A.3d 914, 2010 Pa. Super. 127, 2010 Pa. Super. LEXIS 1490, 2010 WL 2804337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-anthony-pasuperct-2010.