J-A07042-19

                                   2019 PA Super 125

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    JONATHAN CEPHUS                            :
                                               :
                       Appellant               :   No. 1275 EDA 2018

             Appeal from the Judgment of Sentence April 16, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0005962-2016


BEFORE:        OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                              FILED APRIL 24, 2019

          Appellant Jonathan Cephus appeals the judgment of sentence entered

by the Court of Common Pleas of Montgomery County after the lower court

convicted Appellant of Persons Not to Possess a Firearm,1 Firearms not to be

Carried Without a License,2 Possession of Drug Paraphernalia,3 and Driving on

Roadways Laned for Traffic.4 Appellant claims the lower court erred in denying

his motion to suppress evidence from a stop of his vehicle that was not

justified by the requisite suspicion.

          We recognize the difficulties law enforcement officers face in deciding

whether to stop a vehicle for disregarding defined lanes of traffic, as our

decisions analyzing the validity stops based on a violation of Section 3309(1)

of the Vehicle Code have been inconsistent. After careful review, we affirm.
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1   18   Pa.C.S.A. § 6105(a)(1).
2   18   Pa.C.S.A. § 6106(a)(1).
3   35   P.S. § 780-113(a)(32).
4   75   Pa.C.S.A. § 3309(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      On July 29, 2016, at 1:30 a.m., while traveling westbound on Route 422

in Limerick Township, Trooper Robert Beyer and Trooper Mark Musser

observed a silver Cadillac crossing over the center dotted line dividing the two

westbound lanes of Route 422. After noticing the driver of the Cadillac was

having trouble maintaining his lane, Trooper Beyer activated the patrol car’s

dash camera to record and monitor the Cadillac’s movements.

      When asked how many times he saw the Cadillac cross the center line,

Trooper Beyer responded “I believe it was three times.” N.T., 4/19/17, at 8.

The dash camera footage shows the Cadillac crossing over the center line

three times in a twenty-second period, in which both of its driver’s side tires

consistently remained over the center line. Trooper Beyer estimated that the

Cadillac traveled “a couple hundred yards” in the time the dash camera was

recording, but indicated he was unsure of the actual distance.        Id. at 22.

Trooper Beyer could not recall how many times he observed the Cadillac cross

over the center line before the dash camera was activated.

      Upon observing that the driver of the Cadillac was “unable to maintain

its lane several times,” the troopers initiated a traffic stop of the vehicle. Id.

at 8. Once Trooper Beyer approached the vehicle, he immediately smelled a

strong odor of marijuana emanating from the car, observed numerous air

fresheners in the car, and noticed the driver, Appellant, was sweating.

       Appellant complied with Trooper Beyer’s request to exit the vehicle and

consented to a search of the vehicle. Trooper Beyer discovered a handgun in

the center console and drug paraphernalia in the vehicle.         At that point,

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Trooper Beyer stopped his search and placed Appellant in handcuffs. Trooper

Beyer had to call for emergency personnel as Appellant passed out.

      Once Appellant was charged with the aforementioned offenses, he filed

a suppression motion, which the trial court subsequently denied.        After a

bench trial, Appellant was convicted of Persons Not to Possess a Firearm,

Firearms not to be Carried Without a License, Drug Paraphernalia, and Driving

on Roadways Laned for Traffic. On April 16, 2018, the trial court sentenced

Appellant to an aggregate term of five to ten years’ imprisonment. Appellant

filed a timely post-sentence motion, which the trial court subsequently denied.

      Appellant filed a pro se notice of appeal on April 30, 2018. The lower

court directed the Public Defender of Montgomery County to determine

whether Appellant desired the assistance of counsel or wanted to proceed pro

se, so that the lower court could schedule a Grazier hearing, if necessary. On

May 17, 2018, the Public Defender’s Office formally entered its appearance on

behalf of Appellant, who indicated that he wanted the assistance of counsel

on appeal. Appellant complied with the trial court’s direction to file a Concise

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant’s sole argument on appeal is that the trial court erred in

denying his suppression motion as he alleges that he was subjected to an

unlawful vehicle stop that was not justified by probable cause.           When

reviewing a trial court’s decision to deny a suppression motion, our standard

of review is as follows:




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                Our standard of review in addressing a challenge to a
         trial court's denial of a suppression motion is whether the
         factual findings are supported by the record and whether
         the legal conclusions drawn from those facts are correct.
         When reviewing the ruling of a suppression court, we must
         consider only the evidence of the prosecution and so much
         of the evidence of the defense as remains uncontradicted
         when read in the context of the record.... Where the record
         supports the findings of the suppression court, we are bound
         by those facts and may reverse only if the legal conclusions
         drawn therefrom are in error.

      Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007)
      (citations omitted). “It is within the suppression court's sole
      province as factfinder to pass on the credibility of witnesses and
      the weight to be given their testimony.” Commonwealth v.
      Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006). Moreover, we
      note that our scope of review from a suppression ruling is limited
      to the evidentiary record that was created at the suppression
      hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). In addition,
      questions concerning the admission and exclusion of evidence are
      within the sound discretion of the trial court and will not be
      reversed on appeal absent an abuse of discretion.
      Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

Commonwealth v. Lloyd, ___A.3d___, 1469 WDA 2017, at *5 (Pa.Super.

2019).

      Section 6308(b) of the Motor Vehicle Code defines the requisite level of

suspicion for a traffic stop:

      Whenever a police officer ... has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle's registration, proof of financial responsibility, vehicle
      identification number or engine number or the driver's license, or
      to secure such other information as the officer may reasonably
      believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b).         However, “[t]raffic stops based on a reasonable

suspicion: either of criminal activity or a violation of the Motor Vehicle Code


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under the authority of Section 6308(b) must serve a stated investigatory

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

(en banc) (citation omitted). For a stop based on the observed violation of

the vehicle code or otherwise non-investigable offense, an officer must have

probable cause to make a constitutional vehicle stop. Id. (“Mere reasonable

suspicion will not justify a vehicle stop when the driver's detention cannot

serve an investigatory purpose relevant to the suspected violation”).

     In this case, Trooper Beyer initiated a traffic stop based on Appellant’s

disregard for traffic lanes pursuant to Section 3309(1) of the Motor Vehicle

Code (“Driving on Roadways Laned for Traffic”), which provides:

     Whenever any roadway has been divided into two or more clearly
     marked lanes for traffic the following rules in addition to all others
     not inconsistent therewith shall apply:

        (1) Driving within single lane.--A vehicle shall be driven
        as nearly as practicable entirely within a single lane and
        shall not be moved from the lane until the driver has first
        ascertained that the movement can be made with safety.

75 Pa.C.S.A. § 3309(1).    This Court has found that an officer must have

probable cause to justify a traffic stop for a violation of Section 3309(1).

Feczko, 10 A.3d at 1292.

           To determine whether probable cause exists, we must
     consider whether the facts and circumstances which are within the
     knowledge of the officer at the time of the arrest, 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.




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Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa.Super. 2015) (quoting

Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991))

(quotation marks omitted). In Commonwealth v. Anderson, 889 A.2d 596

(Pa.Super. 2005), this Court found that the vehicle stop was supported by

probable cause as the arresting officer observed Anderson’s vehicle straddling

the double yellow lines for two blocks, stopping for an inordinate and

inexplicable amount of time without being prompted to do so by traffic

signals.5

       In this case, Trooper Beyer had probable cause to stop Appellant’s

vehicle for a violation of Section 3309(1). After Trooper Beyer initially took

notice to Appellant’s vehicle crossing over the center dotted line dividing the

westbound lanes of Route 422, Trooper Beyer activated his patrol car’s dash

camera to monitor Appellant’s movements. Although Trooper Beyer could not

recall how many times he saw Appellant’s vehicle cross the center line before

he activated the camera, it is reasonable to infer that Trooper Beyer observed

Appellant’s vehicle exit his lane on at least one occasion to cause Trooper

Beyer to activate the dash camera.

       Thereafter, the dash camera footage, which was entered into evidence

at the suppression hearing, clearly shows Appellant’s vehicle drift over the
____________________________________________


5 But see Commonwealth v. Gleason, 567 Pa. 111, 112, 785 A.2d 983,
983 (2001) (concluding that the Superior Court erred in holding that the
arresting officer was justified in conducting a traffic stop after observing
Gleason’s vehicle “cross the berm line by six to eight inches on two occasions
for a period of a second or two over a distance of approximately one quarter
of a mile”).

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J-A07042-19



center line three times in a twenty-five second period, in which both of its

driver’s side tires consistently remained over the center line. Thus, the record

supports an inference that Trooper Beyer observed Appellant’s vehicle cross

over the center line at least four times in a brief period of time. We also

observe that Appellant’s repeated movement over the center line dividing two

lanes of traffic is a more serious safety concern than a vehicle crossing the

berm line away from traffic.

       As a result, we find the trial court did not err in finding Trooper Beyer

had probable cause to stop Appellant’s vehicle when Trooper Beyer “observed

the vehicle failing to maintain its lane on multiple occasions and stopped the

vehicle only after observing repeated violations.”        Trial Court Opinion,

6/15/18, at 5.

       Our precedent shows that our courts have had difficulty analyzing

whether the facts of a particular case provide probable cause to conduct a

traffic stop based on a violation of Section 3309(1). See Anderson, 889 A.2d

596 (outlining the myriad of fact patterns in appeals challenging the validity

of vehicle stops based on a suspected Section 3309(1) violation).6


____________________________________________


6  But see also Anderson, 889 A.2d at 604 (Gantman, P.J., dissenting)
(noting that “this Court continues to review the numerous fact patterns in
traffic stop cases largely by comparing the fact pattern of one case to the fact
pattern of another case, which frequently leads to blurry analysis and
inconsistent decisions” and suggesting that we should “review the activity
alleged in light of the statutes involved, so we can reach more reliable
results”).



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       Although we recognize that an individual does not lose all reasonable

expectation of privacy in traveling in an automobile, officers must be given a

sufficient degree of latitude to further the Commonwealth’s interest of

enforcing rules and regulations that were designed to promote safety of all

who travel on the roads of the Commonwealth. See Gleason, 567 Pa. at 120,

785 A.2d at 988.7

       For the foregoing reasons, we conclude that the trial court properly

denied Appellant’s suppression motion and we affirm the judgment of

sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/24/19


____________________________________________


7 We urge the Legislature to provide further clarification of the offense listed
in Section 3309 (as well as for suspected drunk driving) as to when a police
officer can make a legal traffic stop. Moreover, the Gleason decision, which
was filed years ago when the only Justice currently on the Supreme Court,
Chief Justice Saylor, noted his dissent, should be re-examined in light of the
logistical problems it creates for law enforcement.
       To require a police officer to count how many times a vehicle is weaving
before initiating a vehicle stop can lead to tragic consequences. While there
might not appear to be a safety hazard at the precise moment a police officer
sees a vehicle being driven erratically, that situation can change in an instant.
The current state of the law does not give realistic guidance to law
enforcement.

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