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Commonwealth v. Raab3/15/2004
1 Appellant, Brian Raab, brings this appeal from the judgment of sentence to serve an aggregate term of imprisonment of from six months to twenty-three months, imposed following a non-jury trial in which appellant was convicted of driving while under the influence of alcohol, and driving with a suspended license--DUI related. We are constrained to reverse the convictions and vacate the judgment of sentence.
2 The events that gave rise to this prosecution began on February 12, 2002, when appellant was stopped by Officer Joseph Hanusey, of the Plumstead Township Police Department, on suspicion of drunk driving . Appellant was asked to perform field sobriety tests, during which he swayed, exhibited poor balance, and emitted an odor of alcohol. Based on this information, Officer Hanusey arrested appellant, charging him with driving under the influence and driving with a suspended license. He transported appellant to Doylestown Hospital where blood was drawn and tested. The blood test revealed appellant had a blood-alcohol content of .19.
3 Following the arrest, pursuant to routine procedures, Officer Hanusey prepared an investigative report regarding the circumstances of the arrest, and filled out in longhand a draft affidavit of probable cause. This handwritten draft was subsequently presented to a District Justice in a formal typed affidavit of probable cause, and was signed in the presence of the District Justice. The affidavit recited:
On February 12, 2002, at approximately 0055 hours, your affiant, while in a marked patrol vehicle and in full uniform wearing a badge of authority and employed by the Plumstead Township Police Department, did come behind a brown Ford van westbound on Pt. Pleasant Pk. in the area of Moyer Rd. Your affiant followed this vehicle for .6 miles at a speed of 62 mph. This area has a speed limit of 45 mph. Also while following behind this vehicle, I noted that several times the vehicle drifted its left side tires over the center line was straddling this line. I conducted a traffic stop on PA reg. DTK 9213. I approached request driver and vehicle information from the operator sole occupant. I was given an expired OLN of Brian Raab. While conversing with him, I could detect the strong aroma an alcoholic beverage. I also noted slightly slurred speech slowed, lethargic hand/eye coordination.
Tragically, on May 18, 2002, Officer Hanusey was killed in the line of duty. Consequently, he was unavailable to testify at the pre-trial suppression hearing at which appellant challenged the Officer's probable cause to make the initial stop of his vehicle.
4 At the suppression hearing the Commonwealth introduced both the handwritten form of affidavit and also the typewritten affidavit of probable cause. Appellant objected to the admission of these materials on the grounds that the handwritten affidavit was hearsay, and the typewritten affidavit was in turn based upon the handwritten one. The trial court, after considering the legal briefs submitted by the parties, chose to admit the challenged affidavits, and, based primarily on that evidence, concluded that the Officer Hanusey had probable cause to stop appellant's vehicle. When the court denied the motion to suppress, appellant proceeded to a non-jury trial, and was found guilty of the above stated offenses. Sentence was imposed and this appeal followed.
5 Appellant, in the brief filed with this Court, now presents the following questions for our review:
Whether police reports are admissible in a suppression hearing to establish probable cause to stop a vehicle, where the author of the report is deceased and unavailable to testify?
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