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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Corey Paul Whitecavage v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : : : : : : : :

No. 49 C.D. 2010 Submitted: May 7, 2010

BEFORE:

HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BUTLER FILED: June 4, 2010

Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing (PennDOT) appeals from the December 17, 2009 order of the Court of Common Pleas of Schuylkill County (trial court) sustaining the appeal of Corey Paul Whitecavage (Whitecavage) and reinstating his operating privileges. PennDOT raises two issues before this court: (1) whether the trial court erred in sustaining Whitecavage's hearsay objection, and (2) whether the trial court erred in holding that the arresting officer did not have reasonable grounds to believe that Whitecavage was operating his vehicle while intoxicated. For reasons that follow, we reverse the trial court. On April 8, 2009, Minersville Borough Police Officer Clink received a radio call reporting the erratic driving of a Pontiac sedan heading toward Minersville. Officer Clink subsequently saw the white Pontiac sedan make a wide right hand turn

onto North Street from North Front Street crossing into the officer's lane and causing the officer to swerve to avoid being hit by the vehicle. Officer Clink thereafter initiated a traffic stop. Whitecavage's eyes were bloodshot and dilated, and he seemed very confused upon questioning. Officer Clink then gave Whitecavage two field sobriety tests which he failed. Officer Clink arrested Whitecavage for DUI and transported him to the Schuylkill Medical Center where Whitecavage refused to undergo chemical testing. Officer Clink read Whitecavage the chemical testing warnings and Whitecavage signed the refusal. As a result thereof Whitecavage's license was suspended. He

appealed to the trial court and the trial court sustained his appeal, reinstating his operating privileges. PennDOT now appeals to this Court.1 PennDOT argues that the trial court erred in sustaining Whitecavage's hearsay objection to the testimony that Officer Clink received a radio call reporting the erratic driving of a white Pontiac sedan. Specifically, PennDOT contends the statement was not being offered for the truth of the matter asserted, thus making it non-hearsay. We agree. Hearsay is `an out of court [statement] offered to prove the truth of the fact asserted [in the statement].' However, if the out-of-court statement is offered not to prove the truth of the statement made by the out-of-court declarant, but instead to prove that the statement was in fact made, the out-of-court statement is not hearsay regardless of who made it or how it was reported to the witness. Duffy v. Dep't of Transp., Bureau of Driver Licensing, 694 A.2d 6, 9 (Pa. Cmwlth.

This Court's scope of review in a license suspension case is limited to determining whether the trial court's findings of facts are supported by competent evidence, whether the trial court committed an error of law, or whether the trial court abused its discretion. Orloff v. Dep't of Transp., Bureau of Driver Licensing, 912 A.2d 918 (Pa. Cmwlth. 2006).

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1997) (citation omitted). In this case, the out-of-court statement was introduced only to prove that the statement was, in fact, made. Ultimately, it is the basis of the stop and the reasonableness of Officer Clink's belief that Whitecavage was driving while intoxicated that is the issue in this case. Officer Clink was told of Whitecavage's erratic driving, via radio, before he witnessed it for himself. Whether the statement made over the radio was, in fact, true is of no significance. The truth of the fact that Officer Clink received the call is the relevant point with respect to that statement, as that fact provides part of the basis for the officer's subsequent actions. Therefore, the trial court erred in sustaining the hearsay objection. The out-of-court statement was not offered for the truth of the matter asserted therein. PennDOT next argues the trial court erred in holding that the arresting officer did not have reasonable grounds to believe that Whitecavage was operating his vehicle while intoxicated. We agree. The standard of reasonable grounds to support a license suspension is a lesser standard than the probable cause standard needed to support a DUI conviction. The standard is not a demanding one. Reasonable grounds exist when a person in the position of the police officer, viewing the facts and circumstances as they appeared at the time, could have concluded that the motorist was operating the vehicle while under the influence of an intoxicating substance. Marone v. Dep't of Transp., Bureau of Driver Licensing, 990 A.2d 1187, 1190 (Pa. Cmwlth. 2010) (citations omitted). Here, Officer Clink was first alerted to the

vehicle through a radio transmission informing him that a white Pontiac sedan was driving "all over the road." Reproduced Record at 28a. When the officer personally observed the car, it crossed into his lane nearly hitting him. Upon stopping the vehicle, Officer Clink observed Whitecavage's bloodshot, dilated eyes. Officer Clink had asked him a few questions, which upon answering, he seemed very confused.

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For example, he had said he was going to Frackville, but was travelling away from Frackville, and said he came from Minersville, when he had just arrived in Minersville. Officer Clink then gave him two field sobriety tests which he failed. Clearly, Officer Clink, viewing the facts and circumstances as they appeared at the time, could have reasonably concluded that Whitecavage was operating his vehicle while intoxicated. Therefore, the trial court erred in holding that Officer Clink did not have reasonable grounds to believe Whitecavage was driving while intoxicated. For all of the above reasons, we reverse the trial court and vacate the reinstatement of Whitecavage's operating privileges.

___________________________ JOHNNY J. BUTLER, Judge

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Corey Paul Whitecavage v. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing, Appellant : : : : : : : : ORDER

No. 49 C.D. 2010

AND NOW, this 4th day of June, 2010, the December 17, 2009 order of the Court of Common Pleas of Schuylkill County is reversed, and the reinstatement of Corey Paul Whitecavage's operating privileges is vacated. ___________________________ JOHNNY J. BUTLER, Judge



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