Commonwealth v. Allen , 206 A.3d 1123 ( 2019 )

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2019 PA Super 88COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK AMOS ALLEN :
:
Appellant : No. 1203 MDA 2018
Appeal from the Judgment of Sentence Entered June 29, 2018
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001260-2017
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED MARCH 22, 2019
Appellant, Mark Amos Allen, appeals from the judgment of sentence
entered in the Court of Common Pleas of Adams County. Herein, Appellant
contends the trial court erroneously denied his motion to suppress evidence
of his Driving Under the Influence of alcohol (“DUI”) obtained after a constable
had detained him until the Pennsylvania State Police arrived to initiate the DUI
investigation. We affirm.
The trial court submits as a Pa.R.A.P. 1925(a) opinion its “Opinion on
Defendant’s Motion for Suppression,” which sets forth enumerated findings of
fact made after the court’s consideration of evidence offered at the February
15, 2018, suppression hearing:
1. Constable J. Ryan Metcalf is a full time state constable
elected in the Borough of New Oxford and has been a state
constable for [eight] years.
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* Former Justice specially assigned to the Superior Court.
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2. Constable Metcalf’s responsibilities include the service of
judicial process in the form of civil process for
landlord/tenant actions, the service of subpoenas, and the
arrest of individuals by warrant. Constable Metcalf is
permitted to serve arrest warrants anywhere within the
Commonwealth of Pennsylvania.
3. On April 24, 2017, at approximately 8:00 p.m., Constable
Metcalf and Constable Gates [from Erie County] were
present at 2682 York Road, Straban Township, Adams
County, Pennsylvania for the execution of arrest warrants
for two individuals.
4. Constable Metcalf and Constable Gates were in the living
room of the residence at 2682 York Road[, which fronts
Pennsylvania State Route 30], speaking with the occupant
of the residence, Lorraine Witmer, concerning the arrest
warrants. Constable Metcalf observed through a living room
window a vehicle exit Route 30 at a high rate of speed,
proceed airborne over the embankment, and enter the yard
of the residence at 2682 York Road. The vehicle travelled
to the rear of the residence through the yard and stopped
between the residence and a trailer located in the rear of
the residence.
5. Constable Metcalf and Constable Gates went to the rear of
the residence and observed Defendant [hereinafter
“Appellant”] in the driver’s seat. There were no other
passengers in the vehicle.
6. As Constable Metcalf approached the vehicle, Appellant
exited the vehicle and Constable Metcalf smelled a strong
odor of alcohol and an odor of marijuana. Constable Metcalf
observed Appellant to be confused, [slurring his speech,
and] had balance issues [such that it was] the Constable’s
opinion Appellant was manifestly under the influence of
alcohol.
7. At 8:04 p.m., Constable Metcalf contacted the Pennsylvania
State Police and was advised a PSP Trooper would have an
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extended estimated time of arrival because of other
incidents.
8. Constable Metcalf contacted the on-call Adams County
Assistant District Attorney, Attorney Yannetti, who advised
Constable Metcalf to detain Appellant for further
investigation for suspicion of DUI by the Pennsylvania State
Police.
9. Constable Metcalf detained Appellant and placed him in the
rear of his vehicle. Constable Metcalf testified that Appellant
was not free to leave.
10. Constable Metcalf did not [give] Appellant . . . his Miranda
warnings after Constable Metcalf detained him while
awaiting the arrival of the Pennsylvania State Police.
11. On April 24, 2017 at 9:26 p.m., Trooper Haun with the
Pennsylvania State Police arrived at 2682 York Road and
handled the criminal investigation on behalf of the
Pennsylvania State Police.
12. Ultimately, Trooper Haun charged Appellant with several
counts of driving under the influence of alcohol or controlled
substances and summary traffic violations.
Trial Court Opinion, 3/13/18, at 1-3.
On March 13, 2018, the court granted in part and denied in part
Appellant’s motion to suppress evidence obtained from what he had argued
was Constable Metcalf’s unlawful detention of him. Specifically, the court
granted Appellant’s motion to suppress statements made by Appellant during
his conversation with Constable Metcalf, but it denied Appellant’s motion to
suppress all other DUI-related evidence subsequently acquired by the
Pennsylvania State Police.
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The case proceeded to a non-jury trial, which concluded with a guilty
verdict on one count of DUI. On June 29, 2018, the court sentenced Appellant
to a county intermediate punishment sentence of 60 months, six months of
which were to be served in a restrictive setting. This timely appeal follows.
Appellant presents one question for our consideration:
Was Appellant unlawfully detained when two constables initially
arrested him for an alleged “breach of the peace,” but then held
him in a caged vehicle for an additional hour and a half for the
express purpose of having police investigate a suspected DUI, at
the express direction of the District Attorney’s Office?
Appellant’s brief, at 4.
The standard of review for the denial of a motion to suppress evidence
is as follows:
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. Livingstone, 174 A.3d 609, 619 (Pa. 2017) (citation
omitted). Additionally, “our scope of review from a suppression ruling is
limited to the evidentiary record that was created at the suppression hearing.”
Commonwealth v. Rapak, 138 A.3d 666, 670 (Pa.Super. 2016) (citation
omitted).
In challenging the partial denial of his motion to suppress, Appellant
essentially maintains that the suppression court deprived him of his Fourth
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Amendment rights when it declined to suppress evidence obtained after
constables unlawfully detained him for what amounted to nothing more than
a violation of the Motor Vehicle Code.1 To support this argument, he relies
upon Commonwealth v. Roose, 710 A.2d 1129 (Pa. 1998), where the
Pennsylvania Supreme Court held that constables lacked authority to enforce
the Motor Vehicle Code. We find Roose, however, to be factually inapposite,
as it involved a situation where a constable driving his private vehicle executed
a traffic stop after he observed what he believed to be an illegal left turn
committed by the defendant.
In contrast, the facts of the present case centered around the
constables’ observation of, and response to, a single car accident, where a car
traveling at a high rate of speed dangerously left the roadway, went airborne
over an embankment, and careened well into the back portion of a residential
yard before coming to a stop just short of a trailer located behind the home.
N.T. at 8-10. A visibly dazed and ostensibly intoxicated 2 Appellant remained
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1We agree that Constable Metcalf effected a Fourth Amendment seizure of
Appellant.
2Constable Metcalf testified that his training for detection of illegal substances
and identification of impairment and intoxication was current, as he had most
recently completed “Institute for Law Enforcement Education” update courses
offered by the Adams County Department of Emergency Services. N.T. at 12.
For present purposes, this testimony is relevant not to the question of whether
Appellant was DUI but to the reasonableness of Constable Metcalf’s belief that
he had grounds to arrest Appellant for breach of the peace and public
drunkenness.
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behind the wheel with the engine running when Constables Metcalf and Gates
walked to the driver’s side window to encounter him. N.T. at 10.
Confronted with these facts, it was Constable Metcalf’s testimony that
he had
observed a breach of the peace and a commission of a crime in
my presence, and I placed that in the hands of the appropriate
primary first due [sic] law enforcement agency. . . . I knew I had
the authority to arrest him if for no other reason than for public
drunkenness and for obvious breach of peace. You know, the
individual had committed an act that would tend to place other
persons in danger that I observed.
N.T. at 21, 20.
As such, the Commonwealth contends the constables’ detention of
Appellant was in response to a witnessed breach of the peace, which brings
this matter under the rationale expressed in Commonwealth v. Taylor, 677
A.2d 846 (Pa.Super. 1996). Taylor inquired into a constable’s authority to
arrest and search incident to arrest when he viewed what he believed to be
illegal narcotics in the possession of the defendant during an eviction.
In vacating the trial court’s order suppressing all evidence, this Court
conducted a comprehensive review of “the nature of power possessed by
constables at common law” and held that “overwhelming authority supports
the proposition that constables possessed the power at common law to make
warrantless arrests for felonies and breaches of the peace.” Id. at 850, 851.
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“Furthermore,” we continued, “complying with the mandate of Leet,[3] we
have examined the statutes and found no provision abrogating that power.
Hence, since appellee’s possession of a controlled substance with intent to
deliver constitutes a felony . . . we are unable to escape the conclusion that
[the constable] was empowered to arrest appellee.” Id. at 851.4
Our jurisprudence recognizes, therefore, that the common law confers
arrest powers upon constables for in-presence felonies or breaches of the
peace. As the case sub judice involves no felony, we examine whether
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3 Commonwealth v. Leet, 641 A.2d 299, 301 (Pa. 1994) (holding “that the
common law powers of the sheriff include the power to enforce the motor
vehicle code, and that such powers have not been abrogated by statute or
otherwise.”).
4 Contrary to Appellant’s position, decisional law of this Commonwealth did
not render Constables Metcalf and Gates powerless to intervene merely
because Appellant’s conduct had involved the operation of a motor vehicle.
Taken to its logical conclusion, Appellant’s argument, if accepted, would mean
a constable or private citizen who physically removes a reckless driver from a
stationary vehicle to protect the immediate community does so to the
detriment of any ensuing Vehicle Code-based investigation.
Indeed, such an absolute proscription would represent an overly broad
application of Roose to situations like the one at bar, where a constable’s
detention of a stationary driver who has left the roadway represented not the
enforcement of the Vehicle Code but a response to an act one could reasonably
expect to excite violent resentment, and where the perceived breach of peace
was ongoing to the extent that a demonstrably reckless driver still behind the
wheel with the engine running may attempt to resume driving to the
disturbance of the community.
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Appellant’s conduct occurring within the presence of the constables
constituted a “breach of the peace” as understood at common law.
Explicit guidance as to what acts represent “breaches of the peace” is
limited in our decisional law.5 Indeed, in Commonwealth v. Marconi, 64
A.3d 1036 (Pa. 2013), the Pennsylvania Supreme Court alluded to the
uncertain scope of this category of offenses in its discussion of sheriffs’ and
deputies’ arrest authority for Vehicle Code violations. Noting that the Court
had not previously identified violations that would qualify as authority-
triggering “breaches of the peace,” the Marconi Court described the “breach-
of-the-peace litmus” as “undefined” and “heavily context laden.” Id. at 1049
n.5 (criticizing precedent’s “loose incorporation of undefined peacekeeping
powers as the rational litmus” as the cause of uncertainties regarding sheriffs’
residual common law arrest authority under the Vehicle Code).
Marconi further branded as an “oversimplification” a prior dissenting
opinion of this Court that suggested all Vehicle Code violations represented
breaches of the peace. Id. at 1049 n.6 (addressing Leet, 585 A.2d 1033,
1045 (Cirillo, J. dissenting)). In making this point, however, the Court may
have lent some insight into the contours of a breach of the peace, as it chose
a Vehicle Code violation ostensibly involving only the safety of the offending
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5Black's Law Dictionary defines the term as the criminal offense of creating a
public disturbance or engaging in disorderly conduct, particularly by making
an unnecessary or distracting noise. BREACH OF THE PEACE, Black's Law
Dictionary (10th ed. 2014). As discussed infra, however, recent jurisprudence
of this Court has adopted a more expansive understanding of the term.
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party as an example of a violation not readily within the ambit of the term
“breach of the peace.” Specifically the Court stated “there are Vehicle Code
violations constituting summary offenses which do not readily comport with
the conception of a breach of the peace, for example, the failure to employ a
seat belt. . . . cf. Atwater[v. City of Lago Vista], 532 U.S. [318,] 327 n.2 [
(2001)] (assuming, albeit without definitively deciding, that a seatbelt
violation is not a per se breach of the peace).” Id.Notwithstanding the lack of definitive guidance from the Pennsylvania
Supreme Court, our jurisprudence recently addressed the question of what
amounts to a breach of the peace as contemplated in our common law.
Specifically, in Commonwealth v. Copenhaver, --- A.3d ----, 2018
Pa.Super. 333 (filed December 7, 2018), we held that a sheriff’s deputy
possessed authority to stop a defendant for the summary violation of driving
with an expired registration sticker, as we rejected the defendant’s argument
that such a violation was not a breach of the peace.
In reaching this decision, we found instructive our treatment of the
“breach of the peace” question in Commonwealth v. Lockridge, 781 A.2d
168, 169 (Pa.Super. 2001), aff’d on other grounds, 810 A.2d 1191 (2002),
where the defendant argued that a sheriff’s deputy lacked authority to issue
a citation for driving with a suspended license because the Vehicle Code
violation did not amount to a breach of the peace. We rejected the defendant’s
argument, as follows:
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[The defendant's] interpretation of Leet illogically limits the
authority of a trained deputy to issuing citations for only those
violations of the Vehicle Code that involve behavior or action
similar to those actions prohibited under the disorderly conduct
provision of the Crimes Code. Were we to interpret Leet as
narrowly as [the defendant] suggests, a deputy would be
prohibited from enforcing [S]ection 1543(b) of the Vehicle Code,
even if violated in his presence, because the operation of a motor
vehicle while under suspension does not necessarily involve, ‘on
any part of the driver, any intent to cause public inconvenience,
annoyance, or alarm, or recklessly create risks thereof.’ 18
Pa.C.S.A. § 5503. Such an interpretation of Leet defies logic, and
we find [the defendant's] ‘breach of the peace’ argument devoid
of merit.
Id. at 170 (citation and footnote omitted).
On appeal, the Supreme Court affirmed our decision, but did so on a
different basis. The Supreme Court emphasized that “[t]he power to arrest,
as Leet instructs us, emanates from the common law. The filing of a citation,
however, concerns a process that is among those set out in the Pennsylvania
Rules of Criminal Procedure for commencing a summary action.” Lockridge,
810 A.2d at 1194. Thus, the Supreme Court found that our Rules of Criminal
Procedure authorized the deputy sheriff to file the citation charging the
defendant with a 75 Pa.C.S. § 1543(b) violation. Id. at 1196.
Even though the Supreme Court affirmed our decision in Lockridge on
other grounds, Copenhaver found our analysis in that case salutary in
determining whether the violation of driving with an expired registration
sticker amounted to a breach of the peace justifying a stop:
Although the Supreme Court affirmed our decision in Lockridge
on other grounds, and noted that “it was not necessary for the
Superior Court to pass upon [the defendant's] contention
regarding a breach of the peace,” we find our analysis in that case
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to be instructive. In particular, we described the defendant's
breach of the peace argument in Lockridge to be “unconvincing
and his interpretation of the Leet decision faulty.” Lockridge,
781 A.2d at 169. We opined that the defendant's “interpretation
of Leet illogically limits the authority of a trained deputy to issuing
citations for only those violations of the Vehicle Code that involve
behavior or action similar to those actions prohibited under the
disorderly conduct provision of the Crimes Code.” Id. at 170. We
also stated unequivocally that the defendant's “interpretation of
Leet defies logic” and found its “breach of the peace” argument
to be “devoid of merit.” Id. Given this guidance – where we
determined that driving while under suspension is a breach of the
peace – we cannot say in Appellant's case that driving with an
expired registration is not. Accordingly, we are not persuaded
that Appellant's first issue merits relief.
Copenhaver, 2018 PA Super 333 at *4.
In light of this Court’s understanding of what constitutes a breach of the
peace for purposes of reviewing deputy sheriffs’ authority to conduct a Fourth
Amendment stop,6 it is clear that the patently disruptive, intrusive, and
dangerous nature of Appellant’s underlying conduct clearly aligns with the
“breach of the peace” concept in this context.
Confronted with such conduct, the constables here acted within their
common law powers when they walked to the driver’s side window, detained
an ostensibly compromised Appellant in a safe manner, and immediately
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6 In view of relevant jurisprudence, we discern no basis for applying a different
scope to the concept of “breach of the peace” depending on whether a
sheriff’s, a deputy’s, a constable’s, or a private citizen’s authority to effect a
stop or arrest is under review. Indeed, in Leet, the Supreme Court observed
that a sheriff’s authority to arrest for a breach of the peace was coextensive
with that of a private citizen. See Marconi, 64 A.3d at 1041 (Noting “we
clarified that Leet acknowledged nothing more than sheriff’s circumscribed
authority to arrest for breaches of the peace and felonies committed in their
presence, power ‘no different from that of a private citizen.’”) (quoting
Commonwealth v. Dobbins, 934 A.2d 1170 (Pa. 2007)).
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called the proper authorities to investigate the incident. Accordingly, we
conclude there is no merit to Appellant’s argument that his detention at the
hands of Constables Metcalf and Gates until the Pennsylvania State Police
arrived amounted to a violation of his Fourth Amendment rights requiring
suppression of all DUI evidence subsequently obtained.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
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