J-S62021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    STEPHEN MCLEOD

                             Appellant                No. 26 MDA 2017


       Appeal from the Judgment of Sentence entered November 28, 2016
                In the Court of Common Pleas of Dauphin County
                Criminal Division at No: CP-22-SA-0000160-2016


BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 23, 2018

        Appellant Stephen McLeod appeals from the November 28, 2016

judgment of sentence entered in the Dauphin County Court of Common Pleas

following his bench-trial conviction for driving while operating privilege is

suspended or revoked.1 We affirm.

        On April 21, 2016, Appellant was charged with the above offense, and

a magisterial district judge found Appellant guilty on July 25, 2016. On August

24, 2016, Appellant filed a summary appeal to the trial court. On November

28, 2016, following a de novo hearing, the trial court found Appellant guilty.

On December 28, 2016, Appellant filed a notice of appeal. The trial court


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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 1543(a).
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ordered Appellant to file a Pa.R.A.P. 1925(b) statement and sent a certified

letter to Appellant’s counsel enclosing the order. The letter was returned as

undeliverable, prompting the trial court to file a statement in lieu of an opinion

recommending that this Court quash Appellant’s appeal. Appellant thereupon

moved for leave to file a Pa.R.A.P. 1925(b) statement nunc pro tunc, which

the trial court denied.

        Appellant filed a brief in this Court in which he contested the trial court’s

recommendation to quash his appeal and argued that his traffic stop on April

21, 2016 was unconstitutional. On October 27, 2017, pursuant to Pa.R.A.P.

1925(c)(3), we entered a judgment order agreeing with Appellant that quashal

was inappropriate. We remanded this case to the trial court with directions

for Appellant to file a Pa.R.A.P. 1925(b) statement nunc pro tunc and for the

trial court to prepare a Pa.R.A.P. 1925(a) opinion.2 On November 28, 2017,

Appellant filed a Pa.R.A.P. 1925(b) statement nunc pro tunc, and on December

18, 2017, the trial court filed a Pa.R.A.P. 1925(a) opinion.

        Having disposed of the quashal issue, we have only one argument left

to review: Appellant’s challenge to the constitutionality of his traffic stop. The

trial court aptly and thoroughly summarized the factual and procedural history

of the case. Trial Court Opinion, 12/18/17, at 1-5. We hereby adopt the trial

court summaries as our own and incorporate them herein as if fully set forth.


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2   We also retained jurisdiction over this appeal.


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      In brief, Officer Ribec of the Lower Swatara Township Police Department

was systematically checking the license plates of vehicles parked at the

Hollywood Hotel, a noted high crime area in the Township, when he came

across a silver Lexus with which he was familiar. Knowing that Appellant had

previously operated the vehicle, the officer performed a JNET search and

determined that Appellant’s license was actively suspended. When the Lexus

exited the parking lot, the officer followed the vehicle and positively identified

Appellant as the driver. The officer then saw Appellant fail to properly activate

the vehicle turn signal. The officer activated his emergency lights, stopped

Appellant’s vehicle and cited Appellant for driving while his operating privilege

was suspended or revoked.

      The 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.” 75 Pa. C. S. § 6308 (b). The reasonable suspicion

standard, however, applies only to stops that serve an investigatory purpose.

When the suspected violation of the Vehicle Code does not require

investigation, the stop requires probable cause. Commonwealth v. Feczko,

10 A.3d 1285, 1290 (Pa. Super. 2010) (quoting Commonwealth v. Chase,

960 A.2d 108, 115-16 (Pa. 2008)) (“A vehicle stop based solely on offenses

not investigable cannot be justified by a mere reasonable suspicion . . . An

officer must have probable cause to make a constitutional vehicle stop for

such offenses”).


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      In this case, no further investigation was necessary.           Officer Ribec

positively identified Appellant as the driver of the Lexus and learned that

Appellant’s license was suspended. The officer thus had probable cause to

stop Appellant and cite him for driving with a suspended license. Officer Ribec

also had probable cause to stop Appellant for failing to activate his turn signal

an appropriate distance from the intersection at which he intended to turn, a

violation of 75 Pa.C.S.A. § 3334(b). The fact that the officer did not actually

cite Appellant for violating Section 3334(b) is irrelevant. The constitutionality

of the stop is an objective inquiry that does not depend on the officer’s

subjective motivations for stopping the vehicle.            Commonwealth v.

Strickler, 757 A.2d 884, 893 (Pa. 2000).         The objective facts established

probable cause to stop Appellant for a Section 3334(b) violation.

      We   agree    with   the   trial   court   that   Appellant’s   reliance   on

Commonwealth v. Mistler, 912 A.2d 1265 (Pa. 2000), is misplaced.                 In

Mistler, undercover state Liquor Control Enforcement officers attended a

fraternity party.   Upon observing alcohol being served to individuals who

appeared to be under 21 years old, the officers stopped the party and “carded”

everyone by checking their driver’s licenses. The officers cited all individuals

under 21 years of age at the party for underage drinking regardless of whether

they had observed them drinking. Our Supreme Court found the detention of

the group was unconstitutional, because the officers lacked individualized

suspicion, and no public interest beyond crime control existed to justify these


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suspicionless seizures. Here, in contrast, Officer Ribec had probable cause to

believe that a particular individual, Appellant, was driving with a suspended

license and failed to activate his turn signal sufficiently in advance of a traffic

intersection.

        For these reasons, Appellant’s challenge to the constitutionality of his

traffic stop lacks merit.

        Judgment of sentence affirmed.

        Judge Moulton did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/18




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