J-S39018-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

MARCUS NEAL PALMER

                        Appellant                   No. 1399 WDA 2016


        Appeal from the Judgment of Sentence September 15, 2016
              In the Court of Common Pleas of Butler County
           Criminal Division at No(s): CP-10-CR-0000547-2011


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 26, 2017

     Marcus Neal Palmer appeals from his judgment of sentence of thirty

days to six months incarceration that was imposed after he was found guilty

of driving under the influence (“DUI”) – general impairment, DUI – high rate

of alcohol, possession of a small amount of marijuana, possession of

paraphernalia, and reckless driving. We affirm.

     The suppression court outlined the salient facts as follows.

           [O]n January 31, 2011 at approximately 1:11 a.m. while
     parked near the Country Town gas station in the Greater Butler
     Mart shopping center, [Patrolman David Diyanni] heard the
     squealing of a vehicle’s tires coming from the McDonald[’]s
     restaurant’s drive through area. Patrolman Diyanni is a fifteen
     (15) year veteran of law enforcement. He testified that he did
     not observe any snow or ice on the road surface that morning.
     He observed a black Dodge pickup truck in the McDonalds’ [sic]
     drive through area and twice more heard the truck’s tires squeal.


* Retired Senior Judge assigned to the Superior Court.
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             [Appellant], the operator of the truck, proceeded
      southbound through the parking lot when Patrolman Diyanni
      initiated a traffic stop on the basis of probable cause for reckless
      driving. [Patrolman Diyanni] testified that the squealing was
      intentional. He also testified that there were no other vehicles or
      pedestrians in the drive through area at the time of the incident.

Suppression Court Opinion, 9/13/11, at 2.

      Appellant filed an omnibus motion to suppress.        In that motion he

contended, inter alia, that the patrolman lacked probable cause to believe

that he committed a traffic violation, and therefore, the subsequent traffic

stop and arrest were illegal.     The suppression court concluded that the

sudden acceleration and braking, which caused Appellant’s tires to squeal, in

such close proximity to the restaurant and its attendants, placed those

people and that property in an unjustifiable risk of danger so as to form

probable cause to believe that Appellant engaged in reckless driving.

Accordingly, it denied Appellant’s omnibus pre-trial motion to suppress.

      Thereafter, the parties stipulated to the circumstances giving rise to

the traffic stop as outlined above, and Patrolman Diyanni’s observations

upon seizing Appellant, including that Appellant smelled of alcohol, that he

failed field sobriety tests, that he had a blood alcohol content of .116 within

two hours of operating a vehicle, and that Patrolman Diyanni would testify to

Appellant’s possession of a small amount of marijuana.        The court found

Appellant guilty of the aforementioned offenses, and scheduled the matter

for sentencing.



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      Following his conviction, but prior to sentencing, Appellant absconded.

The court issued a bench warrant, but Appellant remained missing for over

four years. On September 15, 2016, Appellant returned before the court for

sentencing, at which time the court imposed a sentence of thirty-days to six

months imprisonment, plus fines. Appellant timely appealed, and complied

with the court’s order to file a Rule 1925(b) concise statement of errors

complained of on appeal. The court authored its Rule 1925(a) opinion. This

matter is now ready for our review.

      Appellant raises one question for our consideration: “Whether the trial

court erred in not suppressing the traffic stop of the Appellant, who was

stopped for reckless driving for spinning his vehicle wheels in a drive[-

through?]” Appellant’s brief at 2.

      As a preliminary matter, the Commonwealth argues that Appellant

forfeited his right to an appeal by fleeing the state prior to sentencing. Our

High Court has previously held that, “a defendant’s voluntary escape acts as

a per se forfeiture of his right to an appeal, where the defendant is a fugitive

at any time after post-trial proceedings commence.”       Commonwealth v.

Jones, 610 A.3d 439, 441 (Pa. 1992).        However, in Commonwealth v.

Deemer, 705 A.2d 827, 829 (Pa. 1997), the Court abrogated Jones, in

part, holding that there was no “absolute rule of forfeiture of appellate

rights.” It explained that “a fugitive who returns to court should be allowed




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to take the system of criminal justice as he finds it upon his return: if time

for filing has elapsed, he may not file; if it has not, he may.” Id.

      Since the trial court did not impose Appellant’s sentence until after he

returned to Pennsylvania, the time for filing a notice of appeal to this Court

had not elapsed. See Pa.R.A.P. 903 (“In a criminal case in which no post-

sentence motion has been filed, the notice of appeal shall be filed within 30

days of the imposition of the judgment of sentence in open court.”).          As

such, Appellant did not forfeit his right to a direct appeal by fleeing following

his conviction because he returned prior to the imposition of his sentence.

See Commonwealth v. Huff, 658 A.2d 1340 (Pa. 1995) (reinstating

defendant’s appellate rights where he fled and was recaptured before he was

sentenced by the trial court). Hence, we will reach the merits of this appeal.

      Appellant’s challenge relates to the denial of his motion to suppress.

We evaluate the denial of a suppression motion under well-established

principles. Our review is 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 prosecution prevailed in the suppression
      court, we may consider only the evidence of the prosecution 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.

Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015) (citation

omitted).

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       Appellant contends that Patrolman Diyanni lacked probable cause to

determine that he was in violation of the Vehicle Code at the onset of the

traffic stop.1 In order to justify a traffic stop in the instant circumstances, an

“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.” Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa.Super.

2013) (citation omitted).         Moreover, “[p]robable cause does not require

certainty, but rather exists when criminality is one reasonable inference, not

necessarily even the most likely inference.” Id. Finally, “[i]n determining

whether probable cause exists, we apply a totality of the circumstances

test.” Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa.Super. 2013).

This involves an objective determination, and must be “viewed from the

vantage point of a prudent, reasonable, cautious police officer on the scene

____________________________________________


1
  We have previously held that “[i]f 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.” Commonwealth v. Salter,
121 A.3d 987, 993 (Pa.Super. 2015). Further, “[w]here a violation is
suspected, but a stop is necessary to further investigate whether a violation
has occurred, an officer need only possess reasonable suspicion to make the
stop.” Id. Patrolman Diyanni testified that he stopped Appellant’s vehicle
because Appellant, by squealing his tires, posed a “potential hazard.” N.T.
Suppression Hearing, 7/20/11, at 7. Since the prospective Vehicle Code
violations implicated by this testimony, namely careless driving or reckless
driving, would not require further investigation, the stop in question must be
justified by probable cause.



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at the time of the [seizure] guided by his experience and training.”

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

omitted).

       Under the Vehicle Code, a person is guilty of reckless driving when he

“drives any vehicle in willful or wanton disregard for the safety of persons or

property[.]”    75 Pa.C.S. § 3736(a).          Careless driving requires only that a

person “drives a vehicle in careless disregard for the safety of persons or

property[.]” 75 Pa.C.S. § 3714(a).

       Appellant insists that merely squealing his tires did not rise to the level

of “a gross departure from prudent driving standards,” as required by 75

Pa.C.S. § 3736. Appellant’s brief at 11. Further, he claims that his conduct

did not evince willful and wanton conduct.            Hence, the patrolman did not

have probable cause to stop him for reckless driving.            In similar fashion,

Appellant concludes that Patrolman Diyanni lacked probable cause to stop

Appellant for careless driving.2        He emphasizes that his conduct occurred

early in the morning, in a drive-through lane, in the absence of pedestrians

or other vehicles, and thus, he did not pose a danger to people or property.

He asserts that, since his stop was based on a “potential hazard” and not an


____________________________________________


2
  Appellant also argues that Patrolman Diyanni lacked probable cause to stop
him for disorderly conduct. Based on our disposition herein, we need not
address this claim.



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“actual one,” his “act of briefly squealing [his] tires [was] not more than

ordinary negligence.” Appellant’s brief at 13.

         We find that, based on the totality of the circumstances, Patrolman

Diyanni articulated specific facts that would lead a prudent and reasonable

police officer to infer that the driver was in “some violation of some provision

of the traffic code.” Enick, supra. At the suppression hearing, Patrolman

Diyanni testified that, at 1:11 a.m., he overheard a vehicle squealing its

tires in a nearby McDonald’s drive-through.           Upon investigating the

disturbance, he observed a black Dodge pickup truck “squeal its tires two

more times as it traveled through the drive-through in the area of the order

window and the pickup window.” N.T. Suppression Hearing, 7/20/11, at 5.

The officer described the sound as intermittent “squealing and stopping.”

Id.    He stated that he initiated the traffic stop because he believed the

squealing posed a “potential hazard.”     Id. at 7.   The patrolman conceded

that there were no pedestrians or other vehicles visible in the vicinity. Id. at

8-9.    However, he asserted that the squealing was caused by “heavy

acceleration.” Id. at 10. When the officer was questioned as to the cause of

the sound, he insinuated that it was produced intentionally, stating that,

based on his experience as a police officer, “if somebody is intentionally

squealing a tire, it has a certain sound to it,” and further, “that the

acceleration, heavy acceleration caused the rear tires of the vehicle to break

traction.” Id. at 12-13.

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       We find that, based on the above testimony, the potential danger to

persons or property caused by Appellant’s rapid acceleration and braking, so

that his tires lost traction with the pavement, would lead a prudent police

officer to infer that Appellant was operating his vehicle in a manner

constituting careless driving.3           The    danger   implicit   in such sudden

acceleration in a restaurant parking lot, to the point where the vehicle’s tires

lost traction, regardless of whether other vehicles or pedestrians were

immediately in sight, would lead a reasonable police officer to conclude that

the conduct constituted a violation of the Vehicle Code. By spinning his tires

such as he did, Appellant created a situation where he was not in complete

control of his vehicle. That lack of control, in an area adjacent to a building

and where pedestrian and vehicular traffic was foreseeable, unnecessarily

raised the specter of damage to person or property.              Patrolman Diyanni’s

observations support the reasonable inference that Appellant’s conduct

____________________________________________


3
  We recognized that the mens rea applicable to convict a person of careless
driving requires that the Commonwealth prove beyond a reasonable doubt
that the person acted with “less than willful or wanton conduct but more
than ordinary negligence or the mere absence of care under the
circumstances.” Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa.Super.
2010) (citation omitted). We note that, under the relevant standard of
review, the evidence available to Patrolman Diyanni at the time of the traffic
stop did not need to meet this standard, but only show that a prudent,
reasonable, and cautious police officer could make a reasonable inference
that such behavior constituted a violation of the Vehicle Code.
Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014);
Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa.Super. 2013).



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violated the Vehicle Code. Enick, supra. Hence, based on the totality of

the circumstances, Patrolman Diyanni had probable cause to effectuate a

traffic stop, and the suppression court did not err in denying Appellant’s

omnibus pre-trial motion to suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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