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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
EDWARD MARX,                               :          No. 2693 EDA 2019
                                           :
                          Appellant        :


        Appeal from the Judgment of Sentence Entered August 1, 2019,
                in the Court of Common Pleas of Carbon County
               Criminal Division at No. CP-13-CR-0001641-2017


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                           Filed: April 9, 2020

        Edward Marx appeals from the August 1, 2019 judgment of sentence of

72 hours’ to 6 months’ imprisonment imposed after he was found guilty in a

bench trial of driving under influence of alcohol or controlled substance (“DUI”)

– Schedule I controlled substance.1        After careful review, we affirm the

judgment of sentence.

        The trial court2 summarized the relevant facts and procedural history of

this case as follows:

              On September 29, 2017, at approximately
              11:15 p.m., Lehighton Borough Police Officer
              Bruce Broyles was on routine patrol duty in a marked
              police vehicle and in full uniform near Bridge Street in

1   75 Pa.C.S.A. § 3802(d)(1)(i).

2For the ease of our discussion, we collectively refer to the suppression court
and the trial court as “trial court.”
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             Lehighton Borough, Carbon County, Pennsylvania. At
             that time, Officer Broyles observed a silver
             Volkswagen sedan exit the Dunkin Donuts parking lot
             onto the Weissport [B]ridge with an inoperable
             passenger-side license plate lamp. The vehicle in
             question is equipped with two (2) license plate lamps.
             Officer Broyles did not observe any traffic violation
             other than the inoperable license plate lamp.

             After the vehicle crossed the bridge, Officer Broyles
             initiated a traffic stop near the municipal park in
             Weissport Borough. Officer Broyles testified that
             because the subject vehicle had only one (1) operable
             license plate lamp, he was unable to confirm the plate
             until after the vehicle was stopped. Officer Broyles
             approached the vehicle and identified the driver as
             [appellant] by his driver’s license. While speaking
             with [appellant], Officer Broyles detected the odor of
             marijuana emanating from inside [appellant’s] vehicle
             and observed that [appellant] had glassed over,
             bloodshot eyes. Officer Broyles also observed that the
             vehicle’s certificate of inspection was expired.

             Officer Broyles asked [appellant] to exit the vehicle to
             perform field sobriety tests. While Officer Broyles was
             talking with [appellant] outside of the vehicle,
             [appellant] admitted that he had smoked marijuana
             within the past two (2) hours. Officer Broyles had
             [appellant] perform the HGN[3] test, the walk-and-
             turn test, and the one-leg–stand test. Officer Broyles
             observed one (1) clue of impairment during the walk-
             and-turn test and one (1) clue of impairment during
             the one-leg-stand test. Officer Broyles also had
             [appellant] perform the lack of convergence test and
             the modified Romberg balance test.          [Appellant]
             displayed a lack of convergence. During the balance
             test, [appellant] inaccurately estimated the passage
             of thirty (30) seconds in a period of twenty-three (23)
             seconds, which is outside the acceptable range.

             Once [appellant] had completed the tests, he
             consented to a search of his vehicle by Officer Broyles.

3   Horizontal Gaze Nystagmus.


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           Officer Broyles instructed [appellant] to turn the
           vehicle’s lights on to confirm that the passenger-side
           license plate lamp was inoperable. Once the lights
           were activated, Officer Broyles confirmed that the
           license plate lamp was inoperable. Officer Broyles
           then placed [appellant] under arrest for DUI and
           secured him in the patrol vehicle.         [Appellant]
           consented to a blood draw and Officer Broyles
           transported [appellant] to Gnaden Huetten Memorial
           Hospital.     [Appellant’s] blood was drawn by a
           phlebotomist at Gnaden Huetten Memorial Hospital
           and sent for testing at NMS laboratory.

           On February 16, 2018, [appellant] filed an omnibus
           pre-trial motion including motions to compel
           discovery, to suppress evidence based on an illegal
           stop, to suppress evidence based upon coerced
           consent to a search and seizure, and for a writ of
           habeas corpus. On March 16, 2018, th[e trial] court
           approved a stipulation between the parties in which
           [appellant] withdrew each of the aforesaid claims,
           except the motion to suppress evidence based on an
           illegal stop. Pursuant to the stipulation, the parties
           agreed to submit, in lieu of testimony on the
           suppression motion, the transcript from the
           preliminary hearing held on December 20, 2017, and
           the footage of the incident from the mobile video
           recorder [(“MVR”)] mounted in Officer Broyles’ patrol
           vehicle. On July 24, 2018, upon consideration of the
           transcript, the video [from the MVR], [appellant’s]
           brief filed on April 4, 2018, and the Commonwealth’s
           brief filed on April 13, 2018, th[e trial] court entered
           an order with findings of fact and conclusion of law
           denying [appellant’s] omnibus pre-trial motion.

Trial court Rule 1925(a) opinion, 10/22/19 at 1-4 (extraneous capitalization

and quotation marks omitted; emphasis added).

     Appellant was charged with multiple counts of DUI and various Motor

Vehicle Code (“MVC”) violations. Immediately prior to the commencement of

trial, the Commonwealth withdrew all of the charges except one count of DUI


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– Schedule I controlled substance. On April 9, 2019, appellant waived his

right to a jury and proceeded to a bench trial before the Honorable Steven R.

Serfass. Following a one-day trial, the trial court found appellant guilty of DUI

– Schedule I controlled substance. Thereafter, on August 1, 2019, the trial

court sentenced appellant to 72 hours’ to 6 months’ imprisonment. This timely

appeal followed.4

      Appellant raises the following issues for our review:

            1.      Whether the [t]rial [c]ourt’s factual finding that
                    Officer Broyles could not confirm [a]ppellant’s
                    license plate until after Officer Broyles
                    completed the traffic stop is supported by the
                    record since the dashcam video from
                    Officer Broyles’ police vehicle contradicts his
                    testimony and demonstrates that [a]ppellant’s
                    license plate was illuminated and readable prior
                    to the initiation of a traffic stop?

            2.      Whether Officer Broyles conducted a legal traffic
                    stop of [a]ppellant’s vehicle when the dashcam
                    footage shows that [a]ppellant’s license plate
                    was illuminated and readable prior to the
                    initiation of the traffic stop?

Appellant’s brief at 4.

      Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is well settled.

            [An appellate court’s] standard of review in
            addressing a challenge to the denial of a suppression

4  On September 13, 2019, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant complied with the trial court’s order and filed
his timely Rule 1925(b) statement on September 19, 2019. The trial court
filed its Rule 1925(a) opinion on October 22, 2019.


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            motion is limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.           Because the
            Commonwealth prevailed before 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
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”          Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation

marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “To secure the

right of citizens to be free from such intrusions, courts in Pennsylvania require

law enforcement officers to demonstrate ascending levels of suspicion to

justify their interactions with citizens to the extent those interactions

compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,

1201 (Pa.Super. 2002) (citation omitted).

      It is well established that:

            A police officer has the authority to stop a vehicle
            when he or she has reasonable suspicion that a
            violation of the vehicle code has taken place, for the
            purpose of obtaining necessary information to enforce


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            the provisions of the code. 75 Pa.C.S.[A.] § 6308(b).
            However, if the violation is such that it requires no
            additional investigation, the officer must have
            probable cause to initiate the stop.

Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (citation

omitted), appeal denied, 79 A.3d 1096 (Pa. 2013).

      Our supreme court has defined probable cause as follows:

            Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the stop, and of which he has
            reasonably trustworthy information, are sufficient to
            warrant a man of reasonable caution in the belief that
            the suspect has committed or is committing a crime.
            The question we ask is not whether the officer’s belief
            was correct or more likely true than false. Rather, we
            require only a probability, and not a prima facie
            showing, of criminal activity. In determining whether
            probable cause exists, we apply a totality of the
            circumstances test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citations

omitted), cert. denied,        U.S.     , 136 S.Ct. 201 (2015).

      The crux of appellant’s first claim is that Officer Broyles’ traffic stop was

unlawful because “[t]he trial court’s factual finding that . . . Officer Broyles

could not read [appellant’s] license plate without initiating a traffic stop” is not

supported by the record.       (Appellant’s brief at 10.)      In support of this

contention, appellant avers that the dashcam footage from the vehicle’s MVR

demonstrates that “[appellant’s] license plate was fully illuminated at all

times.” (Id. at 8, 13; see also Exhibits D-F (still MVR images) and G (CD of

dashcam MVR).) We disagree.



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      Our review of the record supports the trial court’s determination that

Officer Broyles articulated sufficient facts to justify his stop of appellant’s

vehicle for a violation of the MVC. “Pennsylvania law makes clear that a police

officer has probable cause to stop a motor vehicle if the officer observes a

traffic code violation, even it if is a minor offense.”    Commonwealth v.

Calabrese, 184 A.3d 164, 167 (Pa.Super. 2018) (citation omitted). Here,

appellant’s vehicle was stopped for an inoperable license plate lamp, in

violation of 75 Pa.C.S.A § 4303(b), which provides as follows:

            (b)   Rear lighting.--Every vehicle operated on a
                  highway shall be equipped with a rear lighting
                  system including, but not limited to, rear lamps,
                  rear reflectors, stop lamps and license plate
                  light, in conformance with regulations of the
                  department. If a vehicle is equipped with a
                  centrally mounted rear stop light, a decal or
                  overlay may be affixed to the centrally mounted
                  rear stop light if the decal or overlay meets all
                  applicable State and Federal regulations.

75 Pa.C.S.A. § 4303(b).

      Officer Broyles testified that at approximately 11:15 p.m. on the evening

of September 19, 2017, he effectuated a traffic stop of appellant’s vehicle

after observing that one of the vehicle’s two license plate lamps – specifically,

the “passenger-side registration lamp” – was inoperable and that the

remaining lamp failed to fully illuminate appellant’s license plate. (Notes of

testimony, 12/20/17 at 6, 17.)        On cross-examination, Officer Broyles

disagreed with defense counsel’s characterization that the license plate was

“illuminated” and reiterated that he “was not able to confirm the registration


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plate until after [appellant’s] vehicle was stopped.”         (Id. at 17.)     As

recognized by the Commonwealth, the MVR in Officer Broyles’ vehicle and the

still images set forth in appellant’s brief supports these conclusions. The still

MVR images of appellant’s license plate depicted in Exhibits D and E clearly do

not show a legible registration number. (See appellant’s brief at Exhibits D,

E.) The MVR (Exhibit G) demonstrates that the still MVR image of appellant’s

license plate depicted in Exhibit F was not taken until after Officer Broyles had

activated his overhead lights and initiated a traffic stop of appellant’s vehicle

and, in any event, shows only a partially legible registration number. (Id. at

Exhibits G, F; see also Commonwealth’s brief at 6.) Based on the forgoing,

we find that the record supports the trial court’s factual findings, and

appellant’s first claim of trial court error must fail.

      Appellant next takes issue with the trial court’s legal conclusion that

Officer Broyles had probable cause to stop appellant’s vehicle for one

inoperable registration plate light where the vehicle’s remaining registration

plate light was illuminated and operable. (Appellant’s brief at 14.) In support

of this contention, appellant argues that the trial court’s conclusion is contrary

to this court’s decision in Commonwealth v. Banks, 145 A.3d 794

(Pa.Super. 2016) (unpublished memorandum) (affirming an order granting

appellee’s suppression motion on the basis of the suppression court’s opinion,

which concluded that the police lacked probable cause to effectuate a traffic




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stop where one of the vehicle’s two registration lamps was inoperable),

appeal denied, 166 A.3d 1225 (Pa. 2017). (Appellant’s brief at 16-18.)

      Preliminarily, we recognize that Banks is a non-precedential decision

and is not binding on this court. In any event, Banks is clearly distinguishable

from the instant matter. Relying on the trial court’s opinion, the Banks court

noted that “[n]owhere in [the police officer’s] testimony before [the trial court]

or in the Affidavit of Probable Cause do we find any indication that the officers

were unable to view the Appellee’s license plate.”       Banks, 145 A.3d 794

(unpublished memorandum at *4, quoting trial court opinion, 8/20/15.)

However, in the case sub judice, there was testimony by Officer Broyles that

the remaining license plate lamp on appellant’s vehicle did not properly

illuminate his license plate. (Notes of testimony, 12/20/17 at 17.)

      We find that our holding in Commonwealth v. Salter, 121 A.3d 987

(Pa.Super. 2015), is dispositive of this issue. In Salter, a panel of this court

reversed the suppression court’s determination that the police lacked probable

cause to stop the defendant’s vehicle for a violation of the MVC where the

vehicle’s license plate was not illuminated. Id. at 993-994. In reaching this

conclusion, the Salter court explained:

            Section 4303 of the Vehicle Code states that “[e]very
            vehicle operated on a highway shall be equipped with
            a rear lighting system including, but not limited to,
            rear lamps, rear reflectors, stop lamps and license
            plate light, in conformance with regulations of the
            department.” 75 Pa.C.S.A. § 4303(b). Department
            regulations at 67 Pa.Code §§ 175.80(a)(9)(i) and
            175.66(k) provide a vehicle is not in compliance


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            with the [MVC] if “[a]n exterior bulb or sealed
            beam, if originally equipped or installed, fails to
            light properly,” and “the registration plate lamp
            shall emit white light and make the registration plate
            visible from [a] distance of 50 feet to the rear of the
            vehicle.”

Salter, 121 A.3d at 993 (emphasis added).

      As discussed, Officer Broyles testified that he observed that one of the

two license plate lamps on appellant’s vehicle was not illuminated, to the

extent that he could not fully confirm the registration number, and effectuated

a traffic stop on this basis. (Notes of testimony, 12/20/17 at 17.) Contrary

to appellant’s contention, the fact that one of the license plate lamps on his

vehicle   remained   operational   does   not   negate    the   requirement   of

Section 4303(b) and the department regulations referenced therein that a

light “originally equipped or installed” on a motor vehicle must be in full

working order. See 67 Pa.Code §§ 175.66(k) and 175.80(a)(9)(i); see also

Commonwealth v. Muhammed, 992 A.2d 897, 902-903 (Pa.Super. 2010)

(upholding legality of traffic stop for violation of Section 4303 of the MVC

where a vehicle’s “originally equipped or installed” exterior center-mounted

brake light was inoperable, even though this light was optional and not

specifically required under the MVC and the vehicle’s left and right brake lights

were operating properly). Based on the foregoing, we find that the trial court’s

legal conclusion that Officer Broyles possessed the requisite probable cause to

stop appellant’s vehicle for one inoperable registration plate light was not in

error and that appellant’s second claim must fail.


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     Accordingly, we discern no error on the part of the suppression court in

denying appellant’s motion to suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/9/20




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