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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RENAIRE LEWIS

                            Appellant                    No. 1606 EDA 2015


             Appeal from the Judgment of Sentence May 20, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007008-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED MARCH 11, 2016

        Appellant, Renaire Lewis, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, following his

conviction of driving under the influence (“DUI”)—high rate of alcohol.1 We

affirm.

        The trial court sets forth the relevant facts of this case as follows:

           On July 19, 2014 at approximately 3:00 a.m., Lower
           Pottsgrove Police Sergeant Robert Greenwood (“Sgt.
           Greenwood”), a thirty year veteran of the force, was
           investigating a vehicle (“Vehicle 1”) stopped on Buchert
           Road which was blocking the westbound travel lane.
           During his investigation, Sgt. Greenwood heard a second
           vehicle driven by Appellant, accelerating towards him in
           the westbound lane. Sgt. Greenwood attempted to alert
____________________________________________


1
    75 Pa.C.S.A. § 3802(b).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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           Appellant of the danger by waving his flashlight, but
           Appellant continued to accelerate toward the obstruction
           caused by Vehicle 1. Eventually, Appellant slammed on his
           brakes causing his tires to screech.         As Appellant
           decelerated, he swerved into the eastbound lane of
           Buchert Road in order to avoid colliding with Sgt.
           Greenwood or Vehicle 1.

           After Appellant came to a complete stop, Sgt. Greenwood
           approached Appellant’s vehicle and immediately observed
           an unusual number of air fresheners throughout the
           interior of Appellant’s vehicle.  Sgt. Greenwood then
           ordered Appellant to back up and park behind [Sgt.
           Greenwood’s] unmarked patrol car.

           Upon speaking with Appellant, Sgt. Greenwood noticed
           that Appellant had glassy, blood-shot eyes and slurred
           speech. Sgt. Greenwood then noted a strong odor of
           alcohol emanating from Appellant’s person.           Sgt.
           Greenwood requested that Appellant perform field sobriety
           tests. Appellant’s poor performance on the field sobriety
           tests confirmed Sgt. Greenwood’s suspicion that Appellant
           was [DUI]. Appellant was then placed under arrest.

(Trial Court Opinion, filed 7/29/15, at 1-2).

      Procedurally, on October 21, 2014, the Commonwealth charged

Appellant with DUI—general impairment, DUI—high rate of alcohol, failure to

drive vehicle at safe speed, and failure to drive on roadways laned for traffic.

On February 4, 2015, Appellant filed a motion to suppress the evidence of

DUI, in which he alleged that Sgt. Greenwood illegally stopped Appellant’s

vehicle.    After a hearing on April 15, 2015, the court denied Appellant’s

motion to suppress. On May 20, 2015, Appellant proceeded to a stipulated

bench trial; and the court found Appellant guilty of DUI—high rate of alcohol.

That same day, the court sentenced Appellant to a term of forty-eight (48)


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hours to six (6) months’ imprisonment. On May 27, 2015, Appellant timely

filed a notice of appeal. On May 29, 2015, the court ordered Appellant to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied on June 16, 2015.

      Appellant raises one issue for our review:

           WHETHER THE TRIAL COURT ERRED                IN   DENYING
           [APPELLANT’S] MOTION TO SUPPRESS[?]

(Appellant’s Brief at 5).

      Appellant   argues    Sgt.   Greenwood   merely   possessed   reasonable

suspicion that Appellant violated 75 Pa.C.S.A. § 3361 (driving vehicle at safe

speed) when Sgt. Greenwood initiated the traffic stop. Appellant maintains

Sgt. Greenwood needed probable cause to stop Appellant because a traffic

stop for failure to drive vehicle at safe speed does not serve an investigatory

purpose.    Appellant contends Sgt. Greenwood’s testimony that he initiated

the traffic stop to investigate a possible motor vehicle violation establishes

that Sgt. Greenwood lacked the probable cause necessary to stop Appellant

for a violation of Section 3361.      Appellant asserts the Commonwealth’s

failure to introduce evidence of Appellant’s speed and the road conditions

further demonstrates that Sgt. Greenwood lacked probable cause to stop

Appellant. Appellant concludes the traffic stop of Appellant without probable

cause was unlawful and violated his right against unreasonable searches and

seizures, and this Court should vacate his conviction. We disagree.




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      Our standard of review of the denial of a motion to suppress evidence

is as follows:

          [An appellate court’s] standard of review in addressing a
          challenge to the denial of a suppression 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.       Where…the appeal of the
          determination of the suppression court turns on allegations
          of legal error, the suppression court’s legal conclusions are
          not binding on [the] appellate court, whose duty it is to
          determine if the suppression court properly applied the law
          to the facts. Thus, the conclusions of law of the [trial court
          are] subject to…plenary review.

Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012),

appeal denied, 618 Pa. 684, 57 A.3d 68 (2012).

      The Fourth Amendment to the United States Constitution and Article I,

Section   8      of   the   Pennsylvania    Constitution   protect   citizens   from

unreasonable searches and seizures. Commonwealth v. Carter, 105 A.3d

765, 768 (Pa.Super. 2014) (en banc), appeal denied, ___ Pa. ___, 117 A.3d

295 (2015). “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, 606 Pa. 198, 204, 996

A.2d 473, 476 (2010). One such exception allows police officers to detain



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drivers for a brief investigation when they possess reasonable suspicion that

a violation of the vehicle code has taken place. Id. at 204, 996 A.2d at 477.

See also 75 Pa.C.S.A. § 6308(b).

      Importantly, “[t]raffic stops based on 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.”

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

denied, 611 Pa. 650, 25 A.3d 327 (2011). “Mere reasonable suspicion will

not justify a vehicle stop when the driver’s detention cannot serve an

investigatory purpose relevant to the suspected violation.”    Id.   “Where a

vehicle stop has no investigatory purpose, the police officer must have

probable cause to support it.” Commonwealth v. Enick, 70 A.3d 843, 846

(Pa.Super. 2013), appeal denied, 624 Pa. 671, 85 A.3d 482 (2014).

“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 [person]

of reasonable caution in the belief that the suspect has committed or is

committing a crime.”     Commonwealth v. Thompson, 604 Pa. 198, 203,

985, A.2d 928, 931 (2009). “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), appeal denied, 582 Pa. 672. 868 A.2d 1198


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(2005).

      Section 3361 of the Pennsylvania Motor Vehicle Code sets forth the

offense of driving vehicle at safe speed as follows:

          § 3361. Driving vehicle at safe speed

          No person shall drive a vehicle at a speed greater than is
          reasonable and prudent under the conditions and having
          regard to the actual and potential hazards then existing,
          nor at a speed greater than will permit the driver to bring
          his vehicle to a stop within the assured clear distance
          ahead. Consistent with the foregoing, every person shall
          drive at a safe and appropriate speed when approaching
          and crossing an intersection or railroad grade crossing,
          when approaching and going around curve, when
          approaching a hill crest, when traveling upon any narrow
          or winding roadway and when special hazards exist with
          respect to pedestrians or other traffic or by reason of
          weather or highway conditions.

75 Pa.C.S.A. § 3361. Significantly, “[i]f a vehicle is stopped for speeding,

the   officer   must   possess   probable    cause      to   stop   the   vehicle.”

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

officer must possess probable cause to stop a vehicle for a speeding violation

because nothing more can be determined regarding the violation once the

vehicle is stopped. Id.

      Instantly, the trial court reasoned as follows:

          Here, Sgt. Greenwood was conducting an investigation,
          and while doing so, noticed Appellant’s vehicle coming
          towards him. Sgt. Greenwood estimated that Appellant
          was traveling approximately fifteen miles per hour over the
          posted speed limit. Sgt. Greenwood attempted to grab
          Appellant’s attention by waving his flashlight, but was
          unable to do so. Appellant then crossed over the center
          yellow line in order to narrowly avoid striking the vehicle

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          obstructing his lane of travel. Due to Appellant’s high rate
          of speed and his inability to safely navigate the obstacle in
          the roadway, Sgt. Greenwood stopped him for failing to
          drive at a safe speed. Accordingly, this [c]ourt found that
          Sgt. Greenwood had probable cause to stop Appellant for
          violating [75 Pa.C.S.A.] § 3361.

(Trial Court Opinion, filed 7/29/15, at 4).     The record supports the trial

court’s sound reasoning. See Hoppert, supra.

        Further, after Sgt. Greenwood initiated the traffic stop, he observed

that Appellant’s eyes were glassy and bloodshot, Appellant’s speech was

slurred, Appellant smelled of alcohol, and there were an unusual number of

air fresheners in Appellant’s car.    Sgt. Greenwood subsequently removed

Appellant from the vehicle and performed sobriety tests, which Appellant

failed. Based on these observations of Appellant, Sgt. Greenwood concluded

probable cause existed to arrest Appellant for violation of 75 Pa.C.S.A. §

3802.     See Commonwealth v. Hilliar, 943 A.2d 984 (Pa.Super. 2008),

appeal denied, 598 Pa. 763, 956 A.2d 432 (2008) (holding probable cause

existed to arrest driver for DUI where driver smelled of alcohol and his

speech was slurred).        Thus, neither the traffic stop nor Appellant’s

subsequent arrest for DUI violated Appellant’s constitutional rights; and the

trial court properly denied Appellant’s motion to suppress the evidence of

DUI. See Hoppert, supra. Accordingly, we affirm.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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