J-S54024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN GLEN WHITE

                            Appellant                 No. 133 MDA 2014


          Appeal from the Judgment of Sentence December 13, 2013
              In the Court of Common Pleas of Wyoming County
             Criminal Division at No(s): CP-66-CR-0000127-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                           FILED OCTOBER 10, 2014

        Appellant, Brian Glen White, appeals from the December 13, 2013

aggregate judgment of sentence of 72 hours to six months’ imprisonment, to

be followed by six months’ probation, imposed after the trial court found him

guilty of driving under the influence (DUI) – general impairment, DUI –

highest rate of alcohol, and two counts of failure to drive within a single

traffic lane.1 After careful review, we affirm.

        The trial court has summarized the relevant factual and procedural

history of this case as follows.

                    [O]n December 1, 2012 Tunkhannock Police
              Officer Keith Carpenter (hereinafter “Carpenter”) was
              on patrol duty for traffic enforcement and was
              dressed in full uniform in a marked Tunkhannock
____________________________________________
1
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3309(1), respectively.
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          [B]orough patrol vehicle. While on duty, Carpenter
          received a call from the Communications Center
          advising him that

                a Rob Steel had contacted and relayed
                information for a Mary Shipman, or a Mia
                Shipman, that there was a vehicle that was
                going to be traveling State Route 92, the
                Northeast Extension, down to Route 6 from a
                residence on State Route 92, the occupant of
                the vehicle, the driver of the vehicle, was
                drinking what they had called moonshine. The
                vehicle was going to be traveling to State
                Route 6 and then westbound to Tunkhannock
                Borough where it would then pick up the
                Southeast Extension of State Route 92 to
                travel to Rivercrest.

          Carpenter was also told that the vehicle was a Chevy
          Trailblazer, blue in color, that the driver was
          intoxicated on moonshine, that there was a hunting
          rifle and an eleven (11) year old boy in the vehicle.
          After receiving the call, Carpenter proceeded to the
          Tunkhannock Borough, Tunkhannock Township line
          and parked in the parking lot of Ace Robbins Service
          Station. From this location, Carpenter was able to
          see vehicles traveling Route 6 coming westbound
          into the Borough and the split for the bypass to State
          Route [92].

                 While parked at this location, Carpenter
          observed a blue Chevy Trailblazer traveling
          westbound on State Route 6. Carpenter then began
          to follow the vehicle at which time Carpenter
          observed the front and rear tires on the passenger
          side of the vehicle travel over the fog line and make
          an abrupt correction. Carpenter then observed the
          front and rear tires of the driver side of the vehicle
          travel over the double yellow lines in the center of
          the roadway and make another abrupt correction. At
          this point, Carpenter activated his emergency
          lighting motioning for the vehicle to stop.       The
          vehicle eventually stopped on State Route 92 on the
          southbound berm.

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                  Carpenter approached [Appellant]’s vehicle
            with caution because of the information that there
            was a possible riffle [sic] in the vehicle with a child.
            Upon approaching the vehicle, Carpenter observed
            that [Appellant] had glossy eyes, that [Appellant]
            was nervous and that there was an extremely strong
            odor of alcohol emanating from the vehicle. There
            was no child in the car.          A rifle was not in
            [Appellant]’s immediate reach so Carpenter did not
            pursue the issue of a rifle. Upon speaking with
            [Appellant], Carpenter realized that the alcohol odor
            was coming from [Appellant]’s breath. [Appellant]
            told Carpenter that he had two (2) beers. As a
            result, Carpenter conducted field sobriety tests,
            namely, the horizontal gaze nystagmus, the nine-
            step walk[,] and a preliminary breath test.
            [Appellant] failed the nine-step walk and the result
            of the preliminary breath test was a 0.164.
            Carpenter then placed [Appellant] under arrest and
            [Appellant] was transported to Tyler Memorial
            Hospital for a blood draw for the offense. The blood
            was drawn from [Appellant][,] and [Appellant] had a
            Blood Alcohol Content of 0.224%.

                   A hearing was held on [Appellant]’s Pre-Trial
            Omnibus Motion that Carpenter did not have
            reasonable suspicion to stop [Appellant]’s vehicle on
            August 5, 2013. Said Motion was denied by Order
            dated August 7, 2013. A non-jury trial was held on
            October 24, 2013[,] and [Appellant] was found guilty
            of all four (4) charges as is reflected by th[e trial
            c]ourt’s [o]rders dated October 24, 2013.

Trial Court Opinion, 2/4/14, at 1-4 (internal citations omitted).

      On December 13, 2013, Appellant was sentenced to not less than 72

hours nor more than six months’ imprisonment, followed by a period of

probation for the remaining balance of whatever portion of Appellant’s

maximum sentence remains unserved upon parole, and a $1,500.00 fine for


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DUI – general impairment.          That same day, the trial court filed a second

order sentencing Appellant to six months’ probation for DUI – highest rate,

to be served concurrently to the previous sentence. The trial court imposed

no further penalty for the two counts of disregarding traffic lanes.         On

December 18, 2013, Appellant filed a timely post-sentence motion, which

the trial court denied the same day. On January 16, 2014, Appellant filed a

timely notice of appeal.2

        On appeal, Appellant raises the following issue for our review.

              I.     Whether, the officer who conducted the traffic
                     stop that lead to the arrest of [] Appellant, had
                     probable cause in which to perform a legal
                     stop, and whether the evidence obtained from
                     that stop should have been suppressed?

Appellant’s Brief at 7.

        We begin by noting our well-settled standard of review.

              [I]n addressing a challenge to a trial court’s denial of
              a suppression motion [we are] limited to determining
              whether the factual findings are supported by the
              record and whether the legal conclusions drawn from
              those facts are correct. Since the Commonwealth
              prevailed in the suppression court, we may consider
              only the evidence of the Commonwealth and so
              much of the evidence for the defense as remains
              uncontradicted when read in the context of the
              record as a whole. Where the record supports the
              factual findings of the trial court, we are bound by
              those facts and may reverse only if the legal
              conclusions drawn therefrom are in error.


____________________________________________
2
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)

(some brackets and citation omitted).

      The Fourth Amendment of the Federal Constitution and Article I,

Section 8 of the Pennsylvania Constitution, protect individuals from

unreasonable searches and seizures. “While warrantless seizures such as a

vehicle stop are generally prohibited, they are permissible if they fall within

one of a few well-delineated exceptions.” Commonwealth v. Brown, 996

A.2d 473, 476 (Pa. 2010) (citation omitted). One such exception is where,

“[a] police officer … has reasonable suspicion that a violation of the

vehicle code has taken place, for the purpose of obtaining necessary

information to enforce the provisions of the code.”       Commonwealth v.

Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013) (emphasis in original),

appeal denied, 79 A.3d 1096 (Pa. 2013); accord 75 Pa.C.S.A. § 6308(b).

      It is axiomatic that to establish reasonable suspicion, an officer “must

be able to articulate something more than an inchoate and unparticularized

suspicion or hunch.”    United States v. Sokolow, 490 U.S. 1, 7 (1989)

(internal quotation marks and citation omitted).      A suppression court is

required to “take[] into account the totality of the circumstances—the whole

picture.” Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (internal

quotation marks and citation omitted).       When conducting a reasonable

suspicion analysis, it is incumbent on the suppression court to inquire, based

on all of the circumstances known to the officer ex ante, whether an


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objective legal basis for the seizure was present. Adams v. Williams, 407

U.S. 143, 146 (1972).

       Appellant’s issue on appeal is limited to the argument that Officer

Carpenter lacked probable cause to stop his vehicle on the basis of his

violating Section 3309(1) of the Motor Vehicle Code, by crossing out of his

lane of traffic twice.       Appellant’s Brief at 13-14.   The Commonwealth

counters that Officer Carpenter had reasonable suspicion to stop Appellant’s

vehicle on the basis of the call from the known informant, the specificity of

that call, and Officer Carpenter’s own observations of Appellant’s vehicle

after following it. Commonwealth’s Brief at 4. Appellant is correct that our

cases require probable cause to effectuate a traffic stop under Section 3309.

See generally Commonwealth v. Feczko, 10 A.3d 1285, 1291-1292 (Pa.

Super. 2010) (en banc), appeal denied, 25 A.3d 327 (Pa. 2011). However,

as we discuss infra, we agree with the Commonwealth that Officer Carpenter

did have reasonable suspicion of DUI to render the traffic stop in this case

constitutional.    Therefore, we need not decide whether Officer Carpenter

separately had probable cause to stop Appellant’s vehicle based on Section

3309(1).3



____________________________________________
3
  As an appellate court, we may affirm the trial court on any legal basis
supported by the record. Commonwealth v. Charleston, 16 A.3d 505,
529 n.6 (Pa. Super. 2011) (citation omitted), appeal denied, 30 A.3d 486
(Pa. 2011).



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      In this case, Officer Carpenter testified to the following facts, which led

him to stop Appellant’s vehicle.

                  [Commonwealth]:

            Q:   OK, please draw your attention to December 1,
            2012 at about 9:00 p.m. OK, were you on duty?

                  [Officer Carpenter]:

            A:    Yes, I was.

                                         …

            Q:   Ok, what happened … at that time while you
            were on duty?

            A:    My shift began at … approximately [9:00 p.m.]
            … I was dispatched by the Wyoming County
            Communication Center to assist Tunkhannock
            Township Police with an incident which had come
            into them. The incident had come into Tunkhannock
            Township Police as they were busy with other
            incoming calls. They had transferred it to State
            Police, Tunkhannock. State Police was also busy
            with other calls coming in, a volume of other calls, so
            they had transferred it back to the Communications
            Center to give it to me.

            Q:  Ok,   what     were          you   told   by     the
            [Communication] Center?

            A:    I was advised … that a Steel, a Rob Steel, had
            contacted and relayed information for a Mary
            Shipman-or a Mia Shipman, that there was a vehicle
            that was going to be traveling the state route 92, the
            northeast extension down to route 6 from a
            residence on state route 92 and at that residence,
            the occupant of the vehicle, the driver of the vehicle,
            was drinking what they had called moonshine. The
            vehicle was going to be traveling on state route 6
            and then west bound to Tunkhannock Borough where


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          it would then pick up the southeast extension of
          state route 92 to travel to Rivercrest.

          Q:    Were you told what vehicle the driver was
          driving?

          A:     They described it blue in color, [a] Chevy
          [T]railblazer.

          Q:   So when you got that call, what did you do?

          A:    When I got the call, I traversed to the edge of
          the Tunkhannock Borough, Tunkhannock Township
          line, which is the eastern corner of Ace Robbins
          parking lot, where Sunny Side Road meets Route 6.

          Q:   Where did you park there?

          A:    I traversed to the far east corner of the
          parking lot and parked right at the entrance of the
          parking lot.

          Q:    What vantage [point] did that vie you in terms
          of viewing the road?

          A:    It’s right on the borough township line and
          with that vantage [point], I can see vehicles
          traveling route 6 coming westbound into the borough
          and also that’s where the split is for the bypass.
          Vehicles traveling westbound have the option to
          either travel directly into the borough or they can
          take the bypass towards state route 92 that way and
          where I was positioned, I was on the upper end of
          that intersection so where I … could actually see
          vehicles whichever way they traveled.

          Q:    Ok, as you were waiting there, what happened
          as you were there?

          A:   As I was sitting there, I observed that blue-
          color Chevy [T]railblazer, which was traveling
          westbound on state route 6.

                                   …

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          Q:    Ok, what did you do then?

          A:    The vehicle turned onto the bypass, state route
          6, the bypass, and I pulled out immediately behind
          the vehicle and began to follow it.

          Q:    OK, what did you observe?

          A:      I observed the vehicle after I pulled out behind
          it to first travel over the fog line painted on the side
          of the road distinguishing the lanes used for travel.
          The vehicle traveled over the fog line, but what had
          caught my attention was the abrupt correction
          maneuver to bring it back into the correct lane of
          travel.

          Q:     Ok, when you say the tires were over the fog
          line, was it the front and rear tire or just one of the
          tires went over the fog line?

          A:    The front rear tires-in order to-

          Q:    I’m sorry. On one side-on the passenger side,
          was it the front and rear tire?

          A:    Yes, front and rear tire on the passenger side.

                                     …

          Q:    What did the vehicle do next?

          A:    The vehicle traveled a little bit further west
          towards the intersection. Prior to it reaching the
          intersection, it again traveled over the lines, but this
          time, the double yellow lines painted in the center of
          the roadway distinguish the lanes used for travel.

          Q:    How-what tires went over those lines?

          A:    The driver[-]side tires went over the double
          yellow lines.

                                     …

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          Q:    What happened after that, after they went
          over the double yellow lines?

          A:    Again, what caught my attention was the
          abrupt correct back to the correct travel lane, the
          sudden maneuver to get back to the correct travel
          lane.

          Q:    What did the vehicle do next?

          A:    It approached the intersection of state route
          92, the south extension and made the left hand turn
          onto state route 92 to begin travel south.

                                     …

          Q:    Ok, and what happened next?

          A:     I activated the patrol vehicle’s emergency
          lighting motioning for the vehicle to stop.

          Q:    And did you stop the vehicle?

          A:     I stopped the vehicle. After I activated the
          lighting, it traveled a little bit further and pulled off
          on the south berm of the route 92.

          Q:    And what time did you stop the vehicle?

          A:    I believe the documented time was [9:25
          p.m.]

                                     …

          Q:   Ok, so what was your-if you could summarize,
          what was your basis for stopping that vehicle?

          A:    The basis was the original call. The caller had
          left her information[,] so it wasn’t an anonymous
          call. It was an actual complaint which we have an
          obligation to investigate. The detailed description
          that the caller had when she had contacted. There
          was also information in the call that there was an

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            eleven-year-old boy in the car so the safety of that
            and that initiated the original call, which was have an
            obligation to investigate.     After that, it was the
            observations of the driving and the totality of the
            circumstances of the call, the information received,
            obligation, and the vehicle code violations, which
            were observed.

N.T, 8/5/13, at 11-21.

      The   Commonwealth       argued    based    on   “the     totality   of    the

circumstances,   [Officer   Carpenter]   had   reasonable     suspicion    to   stop

[Appellant]’s vehicle.” Commonwealth’s Brief at 4.

            First, there was a complaint from a known individual
            who specifically accused [Appellant] of drinking
            alcohol and driving a vehicle. Second, the suspect
            vehicle was specifically identified in that complaint.
            Third, [Officer Carpenter] saw that same vehicle a
            short time later. Fourth, [Officer Carpenter] saw
            both the passenger and driver side tires veer
            completely out of the lane of travel, over the white
            fog lines and double yellow lines respectively and
            both involved an abrupt correction.

Id.

      Our previous cases involving citizen tips about moving vehicles require

specificity in terms of the quantity and quality of information in order to

support reasonable suspicion.     Cf. Commonwealth v. Knotts, 663 A.2d

216, 220 (Pa. Super. 1995) (officer lacked reasonable suspicion to stop

vehicle matching make and model and color of vehicle involved in a hit and

run 16 days earlier where the tip was anonymous and the officer testified

that “she did not witness Knotts commit a violation of the Vehicle Code[]”).

However, in this case, the information did not come from an anonymous tip

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but from a known informant.        The United States Supreme Court has

previously explained that tips from known informants carry a higher degree

of weight in a reasonable suspicion analysis. See Florida v. J.L., 529 U.S.

266, 270 (2000) (stating, “[u]nlike a tip from a known informant whose

reputation can be assessed and who can be held responsible if her

allegations turn out to be fabricated, an anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity[]”); Adams,

supra (concluding that information from an informant that “an individual

seated in a nearby vehicle was carrying narcotics and had a gun at his waist”

who was “known to [the officer] personally and had provided him with

information in the past” established reasonable suspicion).

      In addition, Officer Carpenter personally observed Appellant’s vehicle

twice swerve out of its lane of traffic and then abruptly swerve back in.

N.T., 8/5/13, at 15-17.     This Court has previously explained that such

observations may give rise to reasonable suspicion for a traffic stop.    See

Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007)

(holding that officer’s observations of defendant’s vehicle “swerv[ing] out of

his lane of travel three times in a mere 30 seconds, in dense fog, on a road

shared by oncoming traffic” were sufficient for reasonable suspicion), appeal

denied, 934 A.2d 72 (Pa. 2007); Commonwealth v. Hughes, 908 A.2d

924, 927-928 (Pa. Super. 2006) (holding that officer’s observations of the

defendant’s “vehicle … swerving across the divided line into the other lane …


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[and] follow[ing] [the defendant] for less than a mile and observ[ing] him

commit the same traffic violation at least twice” were sufficient for

reasonable suspicion of DUI).

      In this case, Officer Carpenter received a tip from a known informant

that identified a specific make, model, and color vehicle travelling on a

specific road, alleging that the driver had been drinking moonshine and was

driving with an 11-year-old in the car. N.T., 8/5/13, at 12-13, 21. Officer

Carpenter observed this same make, model, and color vehicle drive at the

specified location. Id. at 14-15. Officer Carpenter followed the vehicle and

personally observed the vehicle swerve in and out of its lane of travel twice.

Id. at 15-17.    In our view, these factors, in their totality, gave Officer

Carpenter the required level of reasonable suspicion of DUI to render the

traffic stop of Appellant’s vehicle constitutional. See J.L., supra; Adams,

supra; Fulton, supra; Hughes, supra. As a result, we conclude the trial

court properly denied Appellant’s motion to suppress.     See Washington,

supra.

      Based on the foregoing, we conclude Appellant’s sole issue on appeal

is devoid of merit.    Accordingly, the trial court’s December 13, 2013

judgment of sentence is affirmed.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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