J-A28009-23
2024 PA Super 28
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 2849 EDA 2022
JOHN M. SEARS
Appeal from the Order Entered October 5, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0004486-2020
BEFORE: OLSON, J., STABILE, J., and COLINS, J.*
OPINION BY OLSON, J.: FILED FEBRUARY 20, 2024
The Commonwealth of Pennsylvania appeals from the order entered on
October 5, 2022, which denied the Commonwealth’s petition for a writ of
certiorari to the Municipal Court of Philadelphia. In this appeal, the
Commonwealth claims that the lower courts erred when they suppressed the
results of a breathalyzer test, showing that the defendant, John M. Sears (“the
Defendant”), had a blood alcohol content (“BAC”) of 0.144 percent. We vacate
and remand.
On February 16, 2020, the Defendant was arrested and charged with
driving under the influence of alcohol (“DUI”).1 The Defendant then filed, in
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1).
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the Municipal Court of Philadelphia, a motion to suppress the results of a
breathalyzer test. According to the Defendant, the results of the breathalyzer
test must be suppressed, as they were the fruit of an illegal arrest. See
Municipal Court Opinion, 8/31/22, at 1.
The municipal court held a suppression hearing on May 5, 2022. During
the hearing, Philadelphia Police Officer Jonathan Carrero testified that, at
approximately 6:55 p.m. on February 16, 2022, he was on duty and driving
his police vehicle when he noticed the aftermath of a two-vehicle accident,
with “a vehicle flipped over” on the road. N.T. Suppression Hearing, 5/5/22,
at 5. The overturned vehicle was smoking. Id. at 10. Officer Carrero testified
that he activated his lights, pulled around to the scene, and got out of his
vehicle. At this point, Officer Carrero observed the Defendant trapped in the
overturned vehicle and attempting to get out of the car. Id. at 6-7. The
officer also observed that the Defendant’s vehicle “had front damage.” Id. at
10.
Officer Carrero testified that, after the Defendant was extracted from
the overturned vehicle, the officer was able to attend to the other driver
involved in the accident. He testified that the second driver “was screaming
at the time saying she was struck by a car.” Id. at 9 The officer testified that
this second driver was operating a silver Mercedes-Benz and he noticed that
her vehicle appeared to have been “struck on the driver’s side, the rear.” Id.
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Officer Carrero also testified that, on the night of the accident, the
weather was cold and clear, with no ice on the roads. Id. at 10.2
Philadelphia Police Lieutenant Marc Rutizer next testified at the hearing.
At the time of the hearing, Lieutenant Rutizer was a 31-year veteran of the
Philadelphia Police force and had made between 25 to 50 DUI arrests during
his career. Id. at 16-17. He testified:
Upon my arrival, I observed bystanders and Officer Carrero
pulling [the Defendant] out of the vehicle that was flipped
over. . . . [W]hen the bystanders and Officer Carrero had
pulled him out, [the Defendant] identified himself as the
driver. He informed me, when I asked him what occurred,
he informed me that a vehicle had hit him from behind.
At that point I observed, and I smelled, a moderate odor of
alcohol emanating from his breath in addition to his eyes. He
had staring eyes, and he continued to try and not look in my
direction.
Id. at 14-15.
Lieutenant Rutizer testified that, during this conversation, the Defendant
“told me he had got into an argument with his spouse, and . . . he had had
four beers and he had had a couple shots.” Id. at 16. Further, Lieutenant
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2 Contrary to the representation made by the Defendant in his brief, Officer
Carrero did not testify that the Defendant “did not have a smell of alcohol on
his person.” Appellees Brief at 4. Instead, on cross-examination, when asked
whether he smelled alcohol on the Defendant, Officer Carrero testified: “I
didn’t smell anything at the time. All I could smell was the car burning.” N.T.
Suppression Hearing, 5/5/22, at 11.
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Rutizer testified that, after observing the Defendant, he arrived at the opinion
that the Defendant “could not safely operate a motor vehicle.”3 Id. at 17-18.
The testimony of record also demonstrated that, after Lieutenant Rutizer
concluded the Defendant was driving his vehicle under the influence of alcohol,
the Defendant was handcuffed, placed in the lieutenant’s vehicle, and
transported to “the Police Detention Unit for further processing.”4 Id. at 18-19
and 36. There, the Defendant was given a breathalyzer test, which showed
that the Defendant had a BAC of 0.144 percent. See Arrest Report, 2/17/20,
at 1.
At the conclusion of the hearing, the municipal court granted the
Defendant’s motion to suppress the results of his breathalyzer test as the fruit
of an illegal arrest. Id. at 52. In arriving at this conclusion, the municipal
court explained:
Considering the totality of the circumstances, there was not
probable cause to arrest the Defendant for DUI. Officer
Carrero testified that while he interacted with the Defendant,
he did not smell alcohol. Sergeant [Kristin] Aversa testified
that she performed a head-to-toe search of the Defendant,
and Lieutenant Rutizer said to her “I think he’s DUI.” At no
point during the testimony does Sergeant Aversa state that
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3 During cross-examination, Lieutenant Rutizer testified that the Defendant’s
balance and speech were “normal” and that the Defendant was “very polite.”
N.T. Suppression Hearing, 5/5/22, at 22. Further, Lieutenant Rutizer testified
that he does not have “any formal training” in DUI recognition and
enforcement. See id.
4 We note that Philadelphia Police Sergeant Kristin Aversa also testified during
the suppression hearing. See N.T. Suppression Hearing, 5/5/22, at 30-48.
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she corroborated Lieutenant Rutizer’s observations. While
Lieutenant Rutizer testified that the Defendant stated that he
had gotten into an argument with his spouse, and that he had
four beers and a couple of shots, the Lieutenant also said that
the Defendant’s balance was normal, his speech was normal,
and he was cooperative to the point of being described as
“very polite.” Lieutenant Rutizer also testified that in his 31
years as a part of the Philadelphia Police Department he has
never received any formal DUI training and did not perform
any field sobriety tests on the Defendant.
Municipal Court Opinion, 8/31/22, at 3.
On June 4, 2022, the Commonwealth filed, in the Court of Common
Pleas of Philadelphia County, a petition for a writ of certiorari to the Municipal
Court of Philadelphia. Commonwealth’s Petition for Writ of Certiorari, 6/4/22,
at 1. The court of common pleas denied certiorari on October 5, 2022. Trial
Court Order, 10/5/22, at 1.
The Commonwealth filed a timely notice of appeal and, within its notice,
the Commonwealth properly certified that the trial court’s order “will terminate
or substantially handicap the prosecution.” Commonwealth’s Notice of Appeal,
11/3/22, at 1; see also Pa.R.Crim.P. 311(d). The Commonwealth raises one
claim to this Court:
Did the lower court err by finding that officers lacked probable
cause to arrest [the Defendant] where [the Defendant]
caused a serious vehicular accident in which his car flipped
over, a seasoned officer with 31 years of experience could
smell alcohol on [the Defendant’s] breath and believed he
was intoxicated, and [the Defendant] freely admitted to
drinking at least six alcoholic beverages following an
argument with his spouse?
Commonwealth’s Brief at 4.
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“Once a motion to suppress evidence has been filed, it is the
Commonwealth's burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant's
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. Super.
2012) (en banc); see also Pa.R.Crim.P. 581(H). If the defendant prevails in
the underlying proceeding, “[w]e review a trial court's order suppressing
evidence for an abuse of discretion and our scope of review consists of only
the evidence from the defendant's witnesses [during the suppression hearing,]
along with the Commonwealth's evidence that remains uncontroverted.”
Commonwealth v. Miller,
186 A.3d 448, 450 (Pa. Super. 2018) (quotation
marks and citations omitted). “Where the [trial] court's factual findings are
supported by the record, we are bound by these findings and may reverse
only if the [trial] court's legal conclusions are erroneous.” Commonwealth
v. Palmer,
145 A.3d 170, 173 (Pa. Super. 2016) (quotation marks and
citations omitted). Relatedly, “[i]t is within the suppression court's sole
province as factfinder to pass on the credibility of witnesses and the weight to
be given their testimony.” Commonwealth v. Gallagher,
896 A.2d 583,
585 (Pa. Super. 2006) (quotation marks and citations omitted). However,
“we maintain de novo review over the suppression court's legal conclusions.”
Commonwealth v. Korn,
139 A.3d 249, 253 (Pa. Super. 2016) (quotation
marks and citations omitted).
We further note that when a party “files a petition for a writ of certiorari,
the Philadelphia Court of Common Pleas sits as an appellate court.”
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Commonwealth v. Coleman, 19 A.3d 1111, 1119 (Pa. Super. 2011). “[A]
petition for writ of certiorari asks the Common Pleas Court to review the record
made in the Municipal Court.” Commonwealth v. Menezes,
871 A.2d 204,
206 n.2 (Pa. Super. 2005). “Certiorari provides a narrow scope of review in
a summary criminal matter and allows review solely for questions of law.”
Commonwealth v. Miller,
269 A.3d 596, (Pa. Super. 2022) (brackets,
quotation marks, and citations omitted).
On appeal, the Commonwealth claims that the lower courts erred when
they determined that the police did not have probable cause to arrest the
Defendant and, in following, when they suppressed the results of the
Defendant’s breathalyzer test. We agree with the Commonwealth.
“To be lawful, an arrest must be supported by probable cause to believe
that a crime has been committed by the person who is to be arrested.”
Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super. 2007).
“Probable cause to arrest exists when the facts and circumstances within the
police officer's knowledge and of which the officer has reasonably trustworthy
information are sufficient in themselves to warrant a person of reasonable
caution in the belief that an offense has been committed by the person to be
arrested.” Commonwealth v. Bruno,
154 A.3d 764, 781 (Pa. 2017)
(quotation marks and citations omitted). “The question we ask is not whether
the officer's belief was correct or more likely true than false. Rather, we
require only a probability, and not a prima facie showing, of criminal activity.”
Id. (quotation marks and citations omitted). “Whether probable cause exists
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is a highly fact-sensitive inquiry that must be based on the totality of the
circumstances as viewed through the eyes of a prudent, reasonable, cautious
police officer guided by experience and training.” Wells, 916 A.2d at 1195.
In the case at bar, the lower courts concluded that the Defendant was
arrested when he was handcuffed and placed in the back of Lieutenant
Rutizer’s police vehicle. See Municipal Court Opinion, 8/31/22, at 2-3; Trial
Court Opinion, 5/22/23, at 6. Therefore, we must view “the evidence from
the defendant's witnesses [during the suppression hearing,] along with the
Commonwealth's evidence that remains uncontroverted” and determine
whether, at the time the Defendant was handcuffed and placed in the back of
Lieutenant Rutizer’s vehicle, the totality of the circumstances established
probable cause to arrest the Defendant. Miller, 186 A.3d at 450.
As the municipal court found when it granted the Defendant’s
suppression motion, it is true that: the first officer on scene did not smell
alcohol on the Defendant’s breath; Sergeant Kristin Aversa did not corroborate
Lieutenant Rutizer’s observations that the Defendant was intoxicated; “the
Defendant’s balance was normal, his speech was normal, and he was . . . very
polite;” Lieutenant Rutizer “never received any formal DUI training;” and,
Lieutenant Rutizer “did not perform any field sobriety tests on the Defendant.”
See Municipal Court Opinion, 8/31/22, at 3.
The municipal court’s factual findings are supported by the record and
the preceding paragraph lists a number of factors that indeed militate against
a finding of probable cause. Nevertheless, in granting the Defendant’s
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suppression motion, it appears as though the lower courts focused upon the
above-stated factors to the exclusion of the “whole picture.” See District of
Columbia v. Wesby, 583 U.S. 48, 60-61 (2018) (holding: “[t]he ‘totality of
the circumstances’ requires courts to consider the whole picture” and a court
errs if it views “each fact in isolation, rather than as a factor in the totality of
the circumstances”) (quotation marks and citations omitted). To be sure, the
municipal court’s factual findings and the uncontroverted evidence in this case
also demonstrate the following: 1) the Defendant was involved in a
two-vehicle accident, where the Defendant’s vehicle suffered front-end vehicle
damage and the second vehicle suffered rear-end damage; 2) the driver of
the second vehicle informed the police that she “was struck by a car” – which
is a statement that is consistent with the location of the damage on the
vehicles; 3) the Defendant told the police that “a vehicle had hit him from
behind” – which is a statement that is not consistent with the location of the
damage on the vehicles; 4) on the night of the accident, the weather was
clear, with no ice on the roads; 5) the Defendant admitted that he drank six
alcoholic beverages prior to the accident; 6) Lieutenant Rutizer, a 31-year
Philadelphia Police Department veteran, smelled “a moderate odor of alcohol
emanating from [the Defendant’s] breath,” noticed that the Defendant had
“staring” eyes, and observed that the Defendant attempted to “not look in
[the lieutenant’s] direction” when they spoke; and, 7) after interacting with
the Defendant, Lieutenant Rutizer concluded that the Defendant was driving
his vehicle under the influence of alcohol.
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We conclude that, when all facts of this case are viewed in the
aggregate, they are sufficient to establish probable cause to arrest the
Defendant for DUI. Indeed, when the facts of this case are viewed in the
aggregate and through the “eyes of a prudent, reasonable, cautious police
officer guided by experience and training,” the facts warrant the conclusion
that the Defendant drank at least six alcoholic beverages, became visibly
intoxicated, crashed his car into another person’s vehicle, and, when speaking
to the police, acted in an evasive manner and misrepresented what occurred
during the accident. See supra at **8-9 (listing factors that favor a finding
of probable cause in the case at bar); see also 2 Wayne R. LaFave, SEARCH
AND SEIZURE § 3.6(f), at 327-328 (1996) (“responses by the suspect the officer
knows to be false, or which are incriminating, implausible, conflicting, evasive
or unresponsive may well constitute probable cause when considered together
with the prior suspicions”) (footnotes omitted); Commonwealth v. Salter,
121 A.3d 987, 997 (Pa. Super. 2015) (“failing [field sobriety] tests is not a
requirement for a determination of probable cause”).
The totality of the circumstances in this case are thus sufficient to
establish probable cause to arrest the Defendant for DUI, as the circumstances
are sufficient to “warrant a prudent person to believe that [the Defendant had]
been driving under the influence of alcohol or a controlled substance.”
Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008) (quotation
marks and citations omitted); see also Commonwealth v. Slonaker,
795
A.2d 397, 402 (Pa. Super. 2002) (the police possessed probable cause to
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arrest the defendant for DUI because the defendant “drove erratically for an
extended period of time, smelled of alcohol, and had bloodshot, glassy eyes”);
Commonwealth v. Dommel, 885 A.2d 998, 1002-1003 (Pa. Super. 2005)
(the police had probable cause to arrest the defendant for DUI, where the
accident victim reported that the defendant “broadsided the victim's moving
vehicle without stopping, drove through four more red lights at moderate
speed, and eventually parked his pickup truck partially behind a residence in
an apparent attempt to hide the truck from view;” moreover, when the police
arrived at the defendant’s residence with a show of force, the defendant
“neither stopped nor ran away; instead, he just continued to walk into his
home and left the door standing wide open behind him”); Commonwealth
v. Peters,
915 A.2d 1213, 1219-1221 (Pa. Super. 2007) (probable cause
existed to support the defendant’s arrest where: the defendant crashed his
truck into a telephone pole and drove off; when questioned by the police, the
police observed that the defendant “had bloodshot, glassy eyes, and emitted
a strong odor of alcohol;” the defendant admitted to the officer that he ”drank
five beers before the accident;” and, the defendant gave the officer “a
far-fetched account [of the accident, declaring that he] swerv[ed] his vehicle
to miss a dog that was chasing a bunny”); Commonwealth v. Simmen,
58
A.3d 811, 817-181 (Pa. Super. 2012) (concluding that the officer had probable
cause to arrest the defendant for DUI because: “[the defendant] was involved
in a hit-and-run accident in which he hit a retaining wall, a stairway railing,
and a mailbox at approximately 1:00 in the morning[; the defendant] was
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unable to control his vehicle to avoid an accident that occurred on a dry night
with no adverse weather conditions[; d]espite being the sole cause of the
accident, [the defendant] did not notify the homeowner of the accident, but
drove away, leaving his front bumper in the homeowner's yard[; the
defendant] admitted drinking alcohol earlier that evening and stated that he
left the scene of the accident because he felt his vehicle was ‘drivable’[; and,
when the officer arrived at the defendant’s] residence, he noted that [the
defendant’s] eyes were bloodshot and he smelled of alcohol”) (citations
omitted).
We thus conclude that the trial court erred when it denied the
Commonwealth's petition for a writ of certiorari and when it affirmed the
municipal court’s suppression order.
Order vacated. Case remanded for further proceedings consistent with
this decision. Jurisdiction relinquished.
Date: 2/20/2024
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