J-S12040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TRAVIS JORDAN LEAS                         :      No. 1541 MDA 2018

                Appeal from the Order Entered August 14, 2018
                 in the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000159-2018

BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 09, 2019

       The Commonwealth of Pennsylvania appeals from the Order granting

Travis Jordan Leas’s (“Leas”) Motion to suppress.1 We affirm.

       At approximately 5:00 a.m. on November 26, 2017, Officer Duane

Witman (“Officer Witman”), of the Shillington Borough Police Department, was

stopped at a traffic light at the intersection of Museum Road and Lancaster

Avenue in Berks County, Pennsylvania, during the final hour of his patrol shift.

Officer Witman’s vehicle was in the northbound lane of South Museum Road,

in a lane designated as a straight or right-turn only lane. The lane adjacent

to Officer Witman was designated as a left-turn only lane. Officer Witman

____________________________________________


1In its Notice of Appeal, the Commonwealth certified that the trial court’s
Order terminates or substantially handicaps the prosecution. See Pa.R.A.P.
311(d) (permitting an interlocutory appeal where the Commonwealth certifies
with its notice of appeal that the underlying order terminates or substantially
handicaps the prosecution). Thus, the appeal is properly before us. See
Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super. 2016).
J-S12040-19



described the intersection as “highly traveled” and the site of many accidents.

N.T., 7/2/18, at 15.     Looking to his left, Officer Witman observed Leas

operating a green Mitsubishi in the left-turn only lane, acting “fidgety,” and

inching past the traffic stop line. Id. at 14. He also observed the passenger

in Leas’s vehicle “kind of like turning [] as to [] hide her head.” Id. at 12.

When the traffic light turned green, Leas accelerated abruptly, causing his

tires to squeal, and turned left onto Lancaster Avenue.       In so doing, Leas

turned into the middle lane of travel instead of the left lane, partially impeding

the entrance of traffic from the opposite side of the intersection. There were

no pavement markings indicating the proper lane of travel for left turns, and

one lane remained open for vehicles to merge from the other side of the

intersection. Officer Witman then activated his police lights and conducted a

traffic stop of Leas’s vehicle for careless driving.   During the stop, Officer

Witman perceived Leas’s demeanor and physical incapacities as being

consistent with those of someone under the influence of methamphetamine.

For that reason, Officer Witman administered field sobriety tests, which Leas

failed. An inspection of the vehicle revealed that the vehicle’s tires were bald.

Officer Witman also observed that there was a firearm in the driver’s side of

the vehicle. Leas was arrested and transported to a local hospital, where he

refused to submit to blood testing.

      Leas was subsequently charged with one count each of persons not to

possess firearms, firearms not to be carried without a license, driving under




                                      -2-
J-S12040-19



the influence of a controlled substance, and careless driving.2 On May 7, 2018,

Leas filed an Omnibus Pretrial Motion, including a Motion to suppress physical

evidence. Leas averred that the evidence (i.e., the firearm) gained from the

traffic stop should be suppressed because the traffic stop was illegal.

Following hearings on July 2, 2018, and August 14, 2018, the suppression

court granted Leas’s Motion to suppress. The Commonwealth filed a timely

Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

       The Commonwealth raises the following issue for our review: “Did the

[suppression] court err in suppressing evidence where Officer Witman had

probable cause to conduct a traffic stop for careless driving, 75 Pa.C.S.A.

§[]3714?” Commonwealth’s Brief at 4.

       When reviewing the grant of a suppression motion, we must determine

whether the record supports the suppression court’s factual findings and

“whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (quotation

marks and citation omitted). We may only consider evidence presented at the

suppression hearing.       Commonwealth v. Davis, 102 A.3d 996, 999 (Pa.

Super. 2014). Further, we may only consider the appellee’s evidence and so

much of the Commonwealth’s evidence as remains uncontradicted when read

in the context of the record as a whole, giving deference to the suppression
____________________________________________


2 See 18 Pa.C.S.A. §§ 6105(a), 6106(a)(1); 75 Pa.C.S.A. §§ 3802(d)(2),
3714(a).

                                           -3-
J-S12040-19



court’s factual determinations in its exclusive role as fact-finder. Id. We may

reverse only if the legal conclusions drawn from the facts are in error. Brown,

64 A.3d at 1104.

       The Commonwealth contends that Officer Witman’s observations of Leas

provided the requisite probable cause to conduct a valid stop of Leas’s vehicle.

Commonwealth’s Brief at 12.            Specifically, the Commonwealth points to

evidence of Leas’s nervous demeanor, the lurching of his vehicle several

inches beyond the stop line, and the squealing of the vehicle’s tires as

providing Officer Witman with probable cause that a violation of the Motor

Vehicle Code had occurred. Id.

       Probable cause is required to effect a traffic stop based on a suspected

violation   of    the   Motor     Vehicle      Code,   including    careless   driving.3

Commonwealth v. Feczko, 10 A.3d 1285, 1288 (Pa. Super. 2010).                        To

satisfy this standard, an officer must be able to “articulate specific facts

possessed [] at the time of the questioned stop, which would provide probable

cause to believe that the vehicle or the driver was in violation of some

provision of the [Motor Vehicle] Code.” Id. at 1291. Such an inquiry must

take into account the totality of the circumstances.               Commonwealth v.

Delvalle, 74 A.3d 1081, 1085 (Pa. Super. 2013).

       In determining whether probable cause existed that would justify a

traffic stop based on a perceived violation of the Motor Vehicle Code, we have
____________________________________________


3 A person is guilty of careless driving when he “drives a vehicle in careless
disregard for the safety of persons or property….” 75 Pa.C.S.A. § 3714(a).

                                            -4-
J-S12040-19



consistently focused on the creation of a hazard.        In Commonwealth v.

Venable, 200 A.3d 490, 499 (Pa. Super. 2018), we focused on the level of

risk to others’ safety in order to determine whether there was probable cause

to conduct a traffic stop based on careless driving.        There, we held that

probable cause existed where the driver of a vehicle not only caused his tires

to spin and squeal while making a turn at a traffic light, but also caused the

rear of his vehicle to fishtail into the adjacent traffic lane. Similarly, in cases

involving the more serious offense of driving under the influence, we again

focused on the creation of a hazard. See, generally, Commonwealth v.

Chernosky, 874 A.2d 123, 128 (Pa. Super. 2005) (en banc) (holding that

probable cause existed for a traffic stop based on suspicion of driving under

the influence where a vehicle’s departure from the lane of travel nearly

resulted in striking a telephone pole); Commonwealth v. Anderson, 889

A.2d 596, 601 (Pa. Super. 2005) (holding that probable cause existed for a

traffic stop based on suspicion of driving under the influence where a vehicle

was operated in such a manner as to require other vehicles to swerve to avoid

an accident).

      Viewing the evidence in a light most favorable to Leas, testimony at the

suppression hearing established that Officer Witman was stopped at a traffic

light around 5:00 a.m., in the northbound lane of South Museum Road. N.T.,

7/2/18, at 7-9. Officer Witman was in the straight or right-hand turning lane.

Id. at 8. From there, Officer Witman observed Leas, who was stopped in the

left-turn only lane, inch his vehicle forward past the stop line. Id. at 9, 14.

                                       -5-
J-S12040-19



Officer Witman stated that once the light turned green, Leas performed a

“quick” turn into the “middle driving lane” of Lancaster Avenue, causing his

tires to spin or squeal, at which point Officer Witman “immediately activated

[his] lights and conducted a traffic stop.” Id. at 15-16, 33. Officer Witman

testified that Leas immediately complied with the stop. Id. at 17-18. Officer

Witman also testified that there were vehicles near the intersection. Id. at 30

(wherein Officer Witman stated that “cars were around”).

      Our review further discloses that Officer Witman testified as to the

possibility that Leas’s vehicle inched beyond the stop line in an attempt to

trigger the light to change. Id. at 32. Further, Officer Witman acknowledged

that Leas’s tires could have squealed a result of Leas’s incorrect use of the

clutch. Id. at 35. Officer Witman was unable to attest to Leas’s speed beyond

stating that the vehicle’s movement was not smooth and the turn was “quick.”

Id. at 15.

      Upon review, we conclude that the evidence of record supports the

suppression court’s findings of fact and that its legal conclusions are sound.

See Brown, 64 A.3d at 1104. The uncontroverted evidence presented by the

Commonwealth at the suppression hearing established that Leas’s tires

squealed only once, when Leas released the clutch of his vehicle and began to

accelerate. N.T., 7/2/18, at 14. Based on the testimony presented, there is

no evidence that Leas created a hazard by weaving in and out of lanes,

fishtailing into the adjacent lane, endangering pedestrians, risking damage to

the curb or nearby property, venturing into oncoming traffic, or causing other

                                     -6-
J-S12040-19



vehicles to swerve to avoid a collision.       See, e.g., Venable, supra;

Chernosky, supra; Anderson, supra.          Keeping in mind our standard of

review, the Commonwealth failed to put forth evidence demonstrating that

Leas’s conduct generated a risk to the safety of surrounding persons or

property, as required for the offense of careless driving. Taking into account

the totality of the circumstances, including the nature of the intersection, the

premature movement of Leas’s vehicle before the light changed, and the

squealing of tires, the testimony elicited at the suppression hearing would not

support Officer Witman’s stop of the vehicle based on the belief that Leas was

driving with careless disregard for the safety of others or their property.

Accordingly, we conclude that Leas’s actions did not give rise to probable

cause that would warrant a valid stop.

      Accordingly, we affirm the Order suppressing physical evidence gained

from the traffic stop.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/09/2019

                                     -7-
