J-A30026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DANIEL KEITH MOYER                         :   No. 805 MDA 2019

                  Appeal from the Order Dated April 16, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0000866-2018


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 18, 2020

        The Commonwealth appeals from the order granting Appellee Daniel

Keith Moyer’s suppression motion.1 The Commonwealth asserts that the trial

court erred when it suppressed evidence, including a gun and drug

paraphernalia, obtained after the stop of a vehicle operated by Appellee. We

affirm.

        The trial court set forth the following findings of fact regarding the

underlying vehicle stop:



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*   Retired Senior Judge assigned to the Superior Court.

1  The Commonwealth certified that the trial court’s suppression order
terminated or substantially handicapped the prosecution of this matter at the
time it filed its notice of appeal from this interlocutory order. See Notice of
Appeal, 5/20/19; Pa.R.A.P. 311(d).
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      1. On November 5, 2017, at approximately 1:30 a.m., Chief
      Steven Stinsky of the Fleetwood Police Department was on patrol
      in a marked patrol vehicle.

      2. Chief Stinsky has been a police officer for more than thirty years
      and formerly worked for the Pennsylvania State Police.

      3. Chief Stinsky was driving east on Arch Street and was
      approaching Franklin Street.

      4. Chief Stinsky credibly testified that a vehicle was traveling
      toward him in the opposite lane of travel.

      5. The vehicle made a right turn onto Franklin Street which Chief
      Stinsky described as slow and wide.

      6. Because of the wide turn, the vehicle was in the lane of
      oncoming traffic for less than five seconds before it returned to
      the correct lane.

      7. There was no oncoming traffic at the time the vehicle crossed
      into the wrong lane.

      8. Franklin Street is not perpendicular to Arch Street.

      9. When making a right turn from Arch Street onto Franklin Street,
      the angle is less than ninety degrees.

      10. Chief Stinsky followed the vehicle on Franklin Street for
      approximately one thousand four hundred feet.

      11. During that time, Chief Stinsky testified that the vehicle was
      weaving in its lane and traveling at odd rates of speed.

      12. The vehicle was not speeding.

      13. The vehicle then turned into the parking lot of the Fleetwood
      Bible Church.

      14. The vehicle pulled into the lot before Chief Stinsky activated
      his emergency lights.

      15. Chief Stinsky credibly testified that he pulled into the lot and
      activated his lights because he thought that there was possibly an
      issue with the driver.

Trial Ct. Order, 4/16/19, at 3-4.


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       After approaching Appellee’s vehicle, Chief Stinsky observed that

Appellee was the driver and only occupant of the vehicle. Additionally, Chief

Stinsky noticed Appellee’s eyes were bloodshot and watery and his face was

flushed. During the ensuing investigation, Chief Stinsky obtained information

that Appellee had outstanding warrants for traffic violations and removed

Appellee from the vehicle. A search revealed the presence of a 9mm pistol

and a small ziplock bag of methamphetamine inside the vehicle.

       On November 6, 2017, Appellee was charged with receiving stolen

property, firearms not to be carried without a license, possession of a

controlled substance, driving under the influence of alcohol, and related

offenses.2    Appellee filed a motion to suppress evidence challenging the

grounds for the traffic stop. See Omnibus Mot., 7/24/18, at 3. The trial court

conducted a suppression hearing on February 8, 2019. At the conclusion of

the hearing, the Commonwealth argued that a reasonable suspicion standard

should apply.3 N.T., 2/8/19, at 17.

       On April 16, 2019, the trial court granted Appellee’s motion to suppress.

The trial court determined that “a wide turn onto a street that is less than

perpendicular coupled with weaving within a lane over a distance of one



____________________________________________


2 18 Pa.C.S. §§ 3925(a), 6106(a)(1); 35 P.S. § 780-113(a)(16); and 75
Pa.C.S. § 3802(a)(2), respectively.

3   The Commonwealth did not argue probable cause. See N.T., 2/8/19, at 17.



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thousand four hundred feet while driving within the speed limit does not

amount to reasonable suspicion to conduct a traffic stop.” Order at 6.

        The Commonwealth timely filed this appeal and a court-ordered

Pa.R.A.P. 1925(b) statement. The trial court filed a responsive Rule 1925(a)

opinion.4

        The Commonwealth raises a single issue for our review:

        Did Chief Stinsky have reasonable suspicion and/or probable
        cause to believe that [Appellee] violated a provision of the motor
        vehicle code?

Commonwealth’s Brief at 4.

        In its brief,5 the Commonwealth asserts that it established that Chief

Stinsky had reasonable suspicion to stop Appellee for a suspected DUI

pursuant to 75 Pa.C.S. § 6308(b).                Id. at 12.   Alternatively, the

Commonwealth argues that Chief Stinsky had probable cause to stop Appellee

for a violation of 75 Pa.C.S. § 3309 (driving on roadways laned for traffic).

Id. at 14. We address each argument below.

        Initially, we summarize the principles governing our review.         In

reviewing the grant of a motion to suppress,



____________________________________________


4 Initially, the trial court did not consider whether probable cause existed to
stop Appellee for a traffic offense. See Order at 5. However, the trial court
responded to the Commonwealth’s Rule 1925(b) statement claiming, in part,
that probable cause existed to stop Appellee. See Commonwealth’s Rule
1925(b) Statement; Trial Ct. Op. at 2-4.

5   Appellee did not submit a brief.

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      we must determine whether the record supports the trial court’s
      factual findings and whether the legal conclusions drawn from
      those facts are correct. We may only consider evidence presented
      at the suppression hearing. In addition, because [Appellee]
      prevailed on this issue before the suppression court, we consider
      only 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. We may reverse only if
      the legal conclusions drawn from the facts are in error.

Commonwealth v. Hemingway, 192 A.3d 126, 129 (Pa. Super. 2018)

(citation omitted).

      The Motor Vehicle Code provides that

      [w]henever a police officer . . . has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle registration, proof of financial responsibility, vehicle
      identification number, or engine number or the driver’s license, or
      to secure such other information as the officer may reasonably
      believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). This Court has explained that,

      [t]raffic stops based on a reasonable suspicion: either of criminal
      activity or a violation of the Motor Vehicle Code under the
      authority of Section 6308(b) must serve a stated investigatory
      purpose. In effect, the language of Section 6308(b)—to secure
      such other information as the officer may reasonably believe to be
      necessary to enforce the provisions of this title—is conceptually
      equivalent with the underlying purpose of a Terry [v. Ohio, 392
      U.S. 1 (1968)] stop.

      Mere reasonable suspicion will not justify a vehicle stop when the
      driver’s detention cannot serve an investigatory purpose relevant
      to the suspected violation. In such an instance, it is [i]ncumbent
      upon the officer to articulate specific facts possessed by him, 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 Code.



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Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc)

(citations and internal quotation marks omitted).

     Accordingly, when considering whether reasonable suspicion or
     probable cause is required constitutionally to make a vehicle stop,
     the nature of the violation has to be considered. If it is not
     necessary to stop the vehicle to establish that a violation of the
     Vehicle Code has occurred, an officer must possess probable cause
     to stop the vehicle. Where a violation is suspected, but a stop is
     necessary to further investigate whether a violation has occurred,
     an officer need only possess reasonable suspicion for the stop.

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).               Under

either standard, “the burden is on the Commonwealth to establish by a

preponderance of the evidence that the challenged evidence is admissible.”

Id. at 996 (citation and internal quotation marks omitted).

     The Commonwealth first argues that Chief Stinsky’s observations of

Appellee’s vehicle provided the reasonable suspicion required to support a

traffic stop to investigate. Commonwealth’s Brief at 13. The Commonwealth

emphasizes that Chief Stinsky initially observed Appellee making the slow and

wide turn onto Franklin Street during which his vehicle crossed the double

yellow line. Id. at 12. The Commonwealth notes that Chief Stinsky then

followed Appellee for approximately 1,400 feet on Franklin Street and

observed that “[t]he speed of the vehicle varied—it would speed up and slow

down intermittently—and the vehicle weaved within its lane.” Id.

     When assessing whether reasonable suspicion existed to stop a vehicle

and conduct an investigation,




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      we must accord due weight to the specific reasonable inferences
      that he is entitled to draw from the facts in light of his experience.
      Reasonable suspicion requires an evaluation of the totality of the
      circumstances.

         Reasonable suspicion is a less stringent standard than the
         probable cause necessary to effectuate a warrantless arrest,
         and depends on the information possessed by police and its
         degree of reliability in the totality of the circumstances. In
         order to justify the seizure, a police officer must be able to
         point to specific and articulable facts leading him to suspect
         criminal activity is afoot. In assessing the totality of the
         circumstances, courts must also afford due weight to the
         specific, reasonable inferences drawn from the facts in light
         of the officer's experience, and acknowledge that innocent
         facts, when considered collectively, may permit the
         investigative detention.

Commonwealth v. Walls, 206 A.3d 537, 541-42 (Pa. Super. 2019) (citations

omitted and formatting altered), appeal denied, 218 A.3d 393 (Pa. 2019).

“[A]n investigative stop of a moving vehicle to be valid must be based upon

objective facts creating a reasonable suspicion that the detained motorist is

presently involved in criminal activity.” Commonwealth v. Sands, 887 A.2d

261, 269 (Pa. Super. 2005) (citation and emphasis omitted).

      In Walls, for example, this Court affirmed the trial court’s ruling that

reasonable suspicion existed where the defendant’s vehicle “drifted back and

forth within its lane for approximately 300 yards, during which time it went

from the right fog line, to the double yellow center line, and back atop the

right fog line again.” Walls, 206 A.3d at 542. In that case, the trial court

also “discussed how [the Pennsylvania State Trooper] relied on his eight years’

experience to infer that the movements he observed created reasonable

suspicion of DUI justifying a traffic stop to permit further investigation

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necessary to substantiate such suspicion.” Id. We added that the trooper

also received a report from another officer that the defendant’s vehicle was

“straddling the right fog line,” shortly before the trooper began following the

vehicle and made his own observations of the defendant’s erratic driving. Id.

at 543.

      Instantly, Chief Stinsky testified as follows. At approximately 1:30 a.m.,

he was patrolling in a marked police car driving eastbound on Arch Street

approaching Franklin Street.       He observed Appellee’s vehicle traveling

westbound on Arch Street, approaching the Franklin Street intersection.

Appellee stopped at the stop sign at the intersection of Arch and Franklin

Streets and turned right onto Franklin Street.      Chief Stinsky testified that

Appellee “made the turn very slowly and very wide.” N.T. at 5. Chief Stinsky

stated that “[o]ver half of [Appellee’s] vehicle at least was in the opposite lane

of travel,” for “less than five seconds probably.” Id. at 12. Chief Stinsky also

estimated that Appellee returned to the proper lane of travel “somewhere

between [100] and 200 feet” from the intersection. Id. at 11.

      During cross-examination, Chief Stinsky described the turn from Arch

Street to Franklin Street as follows:

      Q Would you agree with me that Arch Street where [Appellee’s]
      vehicle was traveling is not exactly perpendicular to North Franklin
      Street?

      A Yes.

      Q Meaning it’s off to an angle that creates an awkward right-hand
      turn for motorists; would you agree with me?



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     A It's not perpendicular. I can’t speak for the motorists who are
     driving there to assume what they were doing. I can tell you I
     see several hundred people do it without problem.

Id. at 9-10.   Appellee also presented depictions of the area around the

intersection of Arch and Franklin Streets from “Google Maps.”

     Chief Stinsky turned onto Franklin Street and followed Appellee for

approximately 1,400 feet. Id. at 9. Chief Stinsky testified:

     The vehicle [wa]s traveling at odd rates of speed. It would speed
     up, slow down, speed up, slow down, weave a bit in the lane—so
     that’s about two blocks that are within the Borough, and there's
     no parking on those streets. There really isn’t a shoulder. So just
     as we exited the Borough I moved up close behind the car, my
     intention to initiate a traffic stop, and as I pulled in behind the car,
     the car made a right turn into the driveway of the Fleetwood Bible
     church.    I pulled in behind the vehicle and activated my
     emergency equipment.

Id. at 5. On cross-examination, Chief Stinsky noted that Appellee was driving

within the proper speed limit. Id. at 12.

     Chief Stinsky testified that he suspected that

     There was some issue with [Appellee] whether he was sleepy,
     whether that he was intoxicated. It was the time right about when
     bars were closing in the area. He was coming from the area where
     there’s the Fleetwood Legion; was about two blocks behind him.
     So I approached. So I was thinking there was a possibly some
     issue with the driver.

Id. at 5. When Appellee’s counsel asked whether he believed Appellee was

lost, Chief Stinsky responded:

     I didn’t know what to believe, sir. The whole reason for the stop
     was to determine if he was in some kind of distress. I observed
     the violation of him crossing into the oncoming lane of travel, and
     I saw what appeared to be erratic driving movements. That could

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         have been any number of things. That was going to be based
         upon the contact I had with the motorist.

Id. at 14.

         Here, there is no dispute that Chief Stinsky was an experienced law

enforcement officer. See id. at 4. The underlying stop occurred around the

time when bars would close. See id. at 5. Although there were restaurants

and bars in the area that Appellee was traveling, there was no evidence that

Appellee was in one of them. See id. at 5. Additionally, the Commonwealth

relied on testimony about (1) Appellee’s very slow and very wide turn during

which over half of Appellee’s vehicle crossed the double yellow lines on

Franklin Street for less than five seconds, (2) Appellee’s “odd rates of speed,”

wherein he would “speed up [and] slow down,” and (3) the fact that Appellee

“weaved in his lane a bit” over some two blocks within Fleetwood. See id. at

5, 12.

         Having considered the totality of the circumstances, we find no basis to

reverse the trial court. We acknowledge that this is a close case because there

were indicia that Appellee operated his vehicle in an erratic fashion.      See

Walls, 206 A.3d at 542-43 (finding reasonable suspicion based on a vehicle

that “drifted back and forth within its lane for approximately 300 yards, during

which time it went from the right fog line, to the double yellow center line,

and back atop the right fog line again”). However, without further specific,

articulable, and objective facts in the record, we find no basis to conclude that

the trial court erred in its factual and legal conclusions. Further, because the



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record supports the trial court’s findings and legal conclusions, we will not

disturb its ruling.     See Hemingway, 192 A.3d at 129.         Accordingly, we

conclude that the Commonwealth has not met its burden of establishing

reasonable suspicion.

       The Commonwealth next argues that it established probable cause to

stop Appellee for a violation of 75 Pa.C.S. § 3309(1), which provides that “[a]

vehicle shall be driven as nearly as practicable entirely within a single lane

and shall not be moved from the lane until the driver has first ascertained that

the movement can be made with safety.” 75 Pa.C.S. § 3309(1). Because the

Commonwealth did not argue probable cause at the suppression hearing, this

argument is waived. See N.T., 2/8/19, at 17; see also Salter, 993 A.2d at

996; Pa.R.A.P. 302(a).

       In any event, this Court has stated that to establish probable cause,6

       [t]he officer must be able to articulate specific facts possessed by
       him at the time of the questioned stop, which would provide
       probable cause to believe that the vehicle or the driver was in
       some violation of some provision of the Vehicle Code. Probable
       cause does not require certainty, but rather exists when
       criminality is one reasonable inference, not necessarily even the
       most likely inference.

Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004) (citation

omitted). As this Court noted in Commonwealth v. Enick, 70 A.3d 843 (Pa.

Super. 2013), that language of Section 3309(1) “requires motorists to

____________________________________________


6A stop for a violation of Section 3309(1) requires probable cause.           See
Feczko, 10 A.3d at 1292.

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maintain   a   single   lane   ‘as   nearly    as   practicable[,]’”   which   permits

consideration of “minor deviations.”          Enick, 70 A.3d at 847 (noting other

traffic laws do not contain similar language permitting minor deviations).

      Instantly, we conclude that the Commonwealth failed to establish

probable cause. See Hemingway, 192 A.3d at 129. Appellee came to a stop

on Arch Street before turning onto Franklin Street. The turn onto Franklin

Street was at an acute angle. Appellant made a slow and wide right turn onto

Franklin Street.   While the turn was wide enough that half of his vehicle

crossed the yellow line on Franklin Street, he returned to a proper lane of

travel in less than five seconds. As the trial court noted there were no other

cars present when Appellee made the turn.               Given the totality of these

circumstances, we agree with the trial court that the Commonwealth did not

demonstrate probable cause to stop Appellee for a violation of Section

3309(1).

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/18/2020



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