*1
рarties McCarthy
Appellee,
30 Both
cite
and see Brief for
v. Bain
(Pa.Super.1999),
M.D.,
bridge,
A.2d 200
No other insurance covered the loss for
compensation:
d,
Appellee sought
fore, PPCIGA contended that it was not
required any to make contribution toward
payment of negotiated settlement. Id. In31 resolving McCarthy, this Court interpreted language of 991.1817and COMMONWEALTH OF only hеld the reading reasonable was to PENNSYLVANIA,
require that the claim to be offset must be Appellee, for the same loss as the claim asserted against the insolvent insurer. Id. at 203. further life held that insurance and SLONAKER, Appellant John D. casualty protected against insurance dif- Superior Pennsylvania. Court of
ferеnt risks and Id. losses. reasoning supports 32 This Appellee’s Argued Dec. position. awarded damages 14, 2002. Filed March lee in were pain the instant case suffering, wage not for medical bills or
loss, concededly which were covered
other insurance. Brief for See
Trooper Marasco two tires on the saw right side of the vehicle cross the and remain there for several seconds two more times. He also saw drive *3 yellow over the line the center of double roadway fog and on the lines. completely crossing Appel- these speed was between and 60 miles per per hour in a hour zone 55 mile and car trooper continuously observed the right within moving Appеl- from left to Hracho, Lawrence Reading, appel- J. for lant’s lane of travel. lant. ¶3 driving, Because of Appellant’s Kline, Kelly S. Assistant District Attor- trooper stopped vehicle and ap- Commonwealth, ney, Reading, appel- proached Appellant, sitting was who be- lee. eyes hind the whеel. were Appellant’s CAVANAUGH, STEVENS, Before: glassy, bloodshot and and exhibited an BECK, odor of alcohol. Marasco asked JJ. Appellant two field perform sobriety STEVENS, J. tests, the and the one-leg stand walk-and- ¶ 1 appeal This is an from the judg- turn, Appellant Ap- both which failed. ment of sentence entered the Cоurt of pellant transported was arrested and to St. Common Pleas of Berks County following Joseph’s he consented to Hospital where charge conviction of blood alcohol test. BAC was Driving Under Appellant the Influence.1 .138%. (1) contends that the officer did not ¶4 Appellant charged was with two hаve sufficient evidence to Appel- Driving counts of Under the Influence of lant for Driving under the Influence and summary Acohol and the offense of Driv- (2) officer did not have Traffic,2 ing on Roadways Laned cause to stop vehicle. Appellant pre-trial seeking filed motions
We affirm the sentence. suppression of the BAC result and ¶2 The procedural sobriety relevant facts and lant’s failure of the field tests.3 history 2, January Following hearing, are as follows: On the motions were dis- at approximately p.m., Trooper posed 7:00 order of court dated Novem- James Pennsylvania 3, suppressed Marasco of the State ber 2000. The court Police patrol sobriety was on routine on SR 1010 evidence of the tests but when he field observed a maroon Buick sedan ruled that the would be ad- driven BAC results Appellant travel over white line to missible as Marasco Appellant right roadway. of the and arrest to a approximately request Appellant followed the vehicle for submit five miles, proceeded to a Appellant miles. Over the course of the five alcohol test.4 motions, 3731(a)(4). Appellant pre-trial § 1. 75 filed additional appeal. this which are not at issue in 3731(a)(1), § 2. 75 Pa.C.S.A. 75 Pa.C.S.A. suppressed the results of the field 4. The Court 3731(a)(4), 3309(1). and 75 Pa.C.S.A. seventy years Appellant was tests as Commonwealth, trial, 19, 2001, January he was hide Code it is jury and on artic- charge supra. upon officer to guilty encumbent[sic] found indicated him, possessed by ulate 2001, 9, 5 On March questioned time of stop, sentenced, on March provide wоuld cause to believe filed a The trial court appeal. lant direct was in the vehicle or driver pur- file a ordered statement violation of some of the Code. Pa.R.A.P.1925(b), such a state- suant Whitmyer, Pa. filed, ment was and the court filed (1995) (citations Pa.R.A.P.1925(a) opinion. *4 omitted)(emphasis original). in ¶ 6 address first Wе ¶ sup- Trooper Marasco testified at the contention did not Marasco he pression hearing Appel- observed cause to probable stop Appellant’s have miles, for five vehicle. fog fully lant’s vehicle crossed the white ruling sup- the a When we review during mile line three times the five сourt, pression we determine must stretch, and that the wheels of sup- whether factual are findings its there for seconds vehicle remained several by ported the record. Where the defen- each time. The saw challenges ruling dant an adverse times over the double weave numerous court, supрression only we will consider fog the yellow center line and white prosecution for the evidence fully crossing either line. whatever evidence for the defense continuously in lant also wove side to side is uncontradicted on record as a his speed his lane of varied travel whole; reсord, if there is on the in a 55- per 40 and 60 miles hour between court, we are the suppression bound troop- zone. 3. The mph N.T. 9/26/2000 may only and we reverse if that court that, a vehi- experience, er testified in his legal these conclusions drawn from weaving erratically at indicates night cle facts are еrroneous. may intoxicated. N.T. that the driver Holt, Commonwealth v. 711 A.2d at 17-18. (citations omitted). 1014 (Pa.Super.1998) ¶ recognize courts Our ¶ brief, appellate interest has an while claims that ob- to maintain enforcing designed rules to trooper, served was insufficient not roads, does safety on our an individual establish cаuse to a valid conduct privacy expectation all lose reasonable disagree. vehicle stop. We in a vehicle. highway when he to the takes have A officer must ¶ po legislature has vested intrusion. Commonwealth justifying the authority stop lice with a vehicle officers to Gleason, they and reason when have “articulable a able to violation of 6308(b).
Vehicle Code.” 75 Pa.C.S. Gleason, ad- 11 In supra, the Court an stop assessing If is when alleged basis of vehicular dressed issue driv- permit to there officer has sufficient indicia of erratic a determination whether give probable cаuse compliance ing has been with the Motor Ve- the officer persons sixty Safety designed Highway tests were over old and the National Traffic not years that these old. Administration Manual indicated find lant have been intoxicated we Specifically, may vehicle. the defendant stop stop Appel- had by a that he in Gleason was followed lant’s vehicle. quarter for one of mile and over distance, vehicle defendant’s crossed Appellant’s conten- now address We fog line two or three times. Addi- solid that, Appellant’s field as the results of tionally, no there were other cars on the suppressed, tests were that, “[g]iven road. The Court found Marasco did not have hour, early morning the fact that there a valid arrest for driv- conduct warrantless roadway no other traffic on the and, the influence alcohol momentary rather nature defen- therefore, the results of fine..., crossing dаnt’s vehicle suppressed. test should have been believing justifica- officer erred disagree. Gleason, tion to defendant’s vehicle.” outset, 16 At the we note that A.2d at statute, consent implied judice, Appel 1547(a) 12 In the case sub implicated matter and *5 driving significantly benign. was less pertinent part: reads in tеstimony that Uncontradicted established drives, operates Any person who or is continuously he wove over a mile five physical control of the movement actual road, accelerating stretch of and decelerat of a motor vehicle in this Commonwealth as way he went on his that dark given shall deemed to have consent to Furthermore, evening. Appellant wove breath, one or more chemical tests of outside lane travel his of on three occa purpose or blood urine for the of deter- sions. mining the alcoholic of blood or content of a if prеsence controlled substance
¶ 13 The facts in this case
unlike
are not
police
grounds
officer has reasonable
those articulated in
v.
person
to believe the
to have been driv-
Howard, 762 A.2d
A
(Pa.Super.2000).
or in
ing, operating
physical
actual
con-
trooper observed the defendant’s vehicle
he
a motor
trol of movement of
vehicle:
twice,
drive onto the berm
veer into the
(1)
and,
roadway,
of
while under the influence of
turning
center
after
alcohol
road,
onto another
or a controlled
or both...
yellow
cross the
center
substance
This
line.
Court found these
suffi-
(а)(1) of
implied
17 Subsection
to justify
cient
the traffic stop.
constitutionally
statute is
valid if
consent
case,
14 In
present
for a
trial
existed
gave
driving
found that
erratic
to
that a
has been
driving
believe
Trooper Marasco
cause to sus- under the influence of alcohol or a con
pect violation of the Vehicle
The
trolled
cause exists
Code.5
substance. Probable
findings
knowledge
of the trial court
officer has
of sufficient
supported
are
when an
circumstances, gained
testimony.
through
conclude that
facts and
We
information,
weaving
trustworthy
to warrant a pru
lant’s continuous
ovеr a five mile
road,
person
to
coupled
stretch of
with his accelera-
dent man
believe that
seized
deceleration,
justify
suffice
has committed a crime. Commonwealth v.
to
Smith,
suspicion
Pa.Super.
A.2d
Marasco’s
Motion,
finding
5. Trial Court's
of Facts and Conclu-
Pretrial
Omnibus
disposition
of law in
sions
Defendant's
(citations omitted).
(1989)
glassy
find that
Maras-
eyes.
See Com
Welshans,
suspect Appellant
v.
co had
Pa.Super.
monwealth
driving
under the influence and affirm
require
failure of
tests.
Dept.
McDonald Com
Trans. Bureau
¶ CAVANAUGH, J.,
dissenting
files a
Licensing,
Driver
130 Pa.Cmwlth.
opinion.
(1989).6
effectuate a traffic But our recently
supreme has reversed sev holdings.
eral cases with similar See Com - Pa. -, Baumgardner, v.
monwealth (2002), reversing
court referred to its decision Common
HAMILTON, Jr., Appellant.
Odis
Gleason,
(Pa.2001),
wealth v.
¶ Relying upon precedent, weakened majority concludes that appellant’s “er- ratic” stop: warranted a vehicular
“We conclude that continuous
weaving road, over a five mile stretch of
coupled deceleration, with his acceleration
suffice justify suspicion [the officer’s] Appellant may have been intoxicat- ” contrary, ed... To the I believe that the
officer did not have cause to be- appellant
lieve that any por- had violated
tion оf the Motor Vehicle Code. In contention, I would that appel- note
lant was later acquitted by the court of the
charge Driving Roadways on Laned for
Traffic8.
¶ Therefore, I believe that the lower
court erred in concluding that the officer cause to execute a traffic appellant’s motor vehicle. The supports
record this conclusion. As a re-
sult, I separately appel- need not consider claim that blood alcohol content anal-
ysis results should have been suppressed. suppressed
These should poisonous
fruit of the tree doctrine. See 3309(1).
8. 75 Pa.C.S.A.