J-A17001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHERELLE PARKER

                            Appellant                   No. 231 EDA 2014


                   Appeal from the Order December 23, 2013
         In the Court of Common Pleas of Philadelphia Municipal Court -
               Traffic Division at No(s): MC-51-CR-0018485-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED AUGUST 22, 2014

        Appellant, Cherelle Parker, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying her petition for a writ

of certiorari filed after the Municipal Court found her guilty of two (2) counts
                                                   1
                                                       We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On April 30, 2011, at approximately 12:18 a.m., Philadelphia Police Officers

Israel Miranda and Stephanie Allen were on routine patrol when they

observed Appellant driving a silver Jeep Cherokee.              Appellant drove

eastbound on Haines Street, which is a one-way street for westbound traffic

only. At the intersection of Haines and Baynton Streets, Appellant made a
____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1), (c).
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left turn onto Baynton Street without using a turn signal. At that point, the

officers activated the emergency lights and sirens on their patrol car and

initiated a traffic stop. Appellant immediately pulled over on Baynton Street.




Officer Miranda smell

asked Appellant if she had been drinking. Appellant responded affirmatively.

As Appellant searched her        purse   for      the   paperwork, she    appeared

disoriented. The officers noticed Appellant had glassy eyes, and her speech

was slow. Officer Miranda ordered Appellant to step out of the vehicle, and

she complied.     Appellant, however, had trouble standing as she alighted

from   vehicle.    Ultimately,   the   officers    arrested   Appellant   for   DUI.

Subsequent testing re

       The Commonwealth filed a criminal complaint charging Appellant with

DUI. On September 20, 2011, the Municipal Court conducted a hearing. At

the beginning of the hearing, Appellant orally moved to sup



Hearing, 9/20/11, at 5; R.R. at 2).          Appellant argued that the officers

conducted an illegal vehicle stop without probable cause or reasonable

suspicion.   Appellant also argued that the officers did not have probable




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cause to support the arrest. After receiving testimony from Officer Miranda,

Officer Allen, and Appellant, the court took the matter under advisement.

     On November 1, 2011, the Municipal Court granted App

suppression motion, issuing the following on-the-record statement:

        Let me make it clear for the record that there are two
        major factors for the findings of fact and conclusions of law
        in this case. The first factor on which I base these findings
        of fact and conclusions of law was the testimony of Police
        Officer Miranda with regard to his ability to reasonably
        determine based on his observations and personal and
        professional experience whether [Appellant] was under the
        influence of alcohol. Police Officer Miranda testified that he
        has arrested approximately two hundred suspects for DUI
        and yet in his personal and professional life he has only
        observed one hundred individuals who were intoxicated.
                                                             , one can
        reasonably conclude that fifty percent of all those arrested
        by him for DUI were not intoxicated, which is disturbing.


        further when he indicated, quote, no one can drink any
        amount of alcohol without being impaired, unquote. Police

        of arrest for DUI taken together with his zero tolerance for
        drinking raises a serious doubt with this [c]ourt as to his
        ability to reasonably determine whether there was
        sufficient reasonable suspicion or probable cause to arrest
        [Appellant].

        The second and most troubling factor for these findings of
        fact and conclusions of law is Police Officer Miranda clearly
        causing himself and his partner to testify in a less than
        truthful manner on very obvious and critical points before
        this [c]ourt.    Both Police Officers Miranda and Allen
        testified unequivocally that there was, quote, no traffic in
        the vicinity of Germantown and Haines, unquote, around
        midnight on Friday, April 29, 2011. For both officers to
        testify that from 11:30 p.m. to 12:30 a.m. there were no
        cars driving on the streets of Germantown on a Friday
        night in the springtime was incredible based on both my

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        personal experience as a Philadelphia native and based on
        easily accessible crime statistics for the 14th Police District.
                                                                      th

        District would not be designated as it is by the Philadelphia
        Police Department as one of the worst high crime, high
        arrest areas in the city. Sadly, it was not until Police
        Officer Allen, under strenuous cross-examination by
        defense counsel, that she contradicted her own earlier
        testimony, and equally importantly, that of her fellow
        partner when she testified, quote, there was a car in front
        of us on the street, unquote. The reluctant admission that
        another vehicle or vehicles was or were on the street at
        the time of the arrest raises serious doubts about the
                                                                 ntly,


        another vehicle at the time they allege to have observed
        [Appellant] driving her vehicle the wrong way.

        The lack of veracity as to traffic coupled with the sheer
        number of discrepancies between the testimony of the
        officers and the police paperwork makes it impossible for
        this [c]ourt to accept as true any of their testimony. For
        example, Officers Miranda and Allen testified that

        never mentioned in the police paperwork.            The police


        testimony woefully insufficient with regard to his
        percentages of arrests for DUI, especially taken together
        with his zero tolerance statement about intoxication. And
        this [c]ourt further finds it cannot rely upon the testimony
        of either Police Officer Allen or Police Officer Miranda
        because of their lack of veracity.

        Consequently,      this   [c]ourt    concludes    that   the
        Commonwealth has not met its burden for the stop,
        reasonable suspicion, and probable cause for the arrest
        and this [c]ourt, therefore, grants the motion to suppress.

(N.T. Hearing, 11/1/11, at 3-7; R.R. at 40-44).




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      On November 14, 2011, the Commonwealth filed a motion for

reconsideration and new matter.          In addition to asking the court to

reconsider the suppression ruling, the Commonwealth requested the recusal



(Motion to Reconsider and New Matter, filed 11/14/11, at 4). On November

15, 2011, the court denied the motion to reconsider the suppression ruling.

The court denied the recusal request on November 21, 2011.

      On November 29, 2011, the Commonwealth filed a notice of appeal




separate   order    entered    that   same    day,   the    CCP   granted   the



conjunction with the orders.      Appellant subsequently sought permission to

                                                             , which this Court

denied on March 30, 2012.

      On January 16, 2013, Appellant appeared for trial before a specially

assigned, out-of-county jurist.    That same day, the Municipal Court found

Appellant guilty of two (2) counts of DUI and sentenced her to seventy-two



for writ of certiorari with the CCP on January 24, 2013. On December 23,

2013, the CCP denied the petition for writ of certiorari.




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      Appellant timely filed a notice of appeal on January 14, 2014.        On

January 23, 2014, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P 1925(b).        Appellant

timely filed a Rule 1925(b) statement on February 6, 2014.

      Appellant raises two issues for our review:


         SUPPRESS ON GROUNDS OF CREDIBILITY COULD VALIDLY
         BE REVERSED BY THE COURT OF COMMON PLEAS.

         WHETHER THE COURT OF COMMON PLEAS ERRED IN
         ORDERING THE RECUSAL OF [THE] MUNICIPAL COURT




      In her first issue, Appellant asserts the Municipal Court properly

granted her suppression motion in light of numerous inconsistencies in the




maintains Officer Miranda testified that there were no other vehicles on the

road at the time of the traffic stop, but Officer Allen conceded that there was




statement that any consumption of alcohol renders an individual incapable of




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original determination that the officers were not credible.         Appellant



ruling. We disagree.

     We review the denial of a suppression motion as follows:

        Our standard of review in addressing a challenge to a trial

        determining whether the factual findings are supported by
        the record and whether the legal conclusions drawn from
        those facts are correct.

           [W]e 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 findings of the suppression court, we
           are bound by those facts and may reverse only if the
           court erred in reaching its legal conclusions based
           upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).        Further,   Both

Municipal and Common Pleas Courts are bound by the same law and apply



Commonwealth v. Harmon, 469 Pa. 490, 498, 366 A.2d 895, 899 (1976)

(internal footnote omitted).             s of both courts are trained in the

law and their decisions are subject to review on post-trial motions and upon

                                                         Id.

     Section 6308 of the Motor Vehicle Code provides:

        § 6308. Investigation by police officers

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                                 *      *    *

            (b)                                    Whenever a police
        officer is engaged in a systematic program of checking
        vehicles or drivers or 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

        responsibility, vehicle identification number or engine

        information as the officer may reasonably believe to be
        necessary to enforce the provisions of this title.




investigatory purpose relevant to the                      Commonwealth

v. Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010), appeal denied, 611 Pa.



officer 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 violation of some provision of the

Code     Id. (emphasis in original).



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

[person] of reasonable caution in the belief that the suspect has committed

                             Commonwealth v. Thompson, 604 Pa. 198,

203, 985 A.2d 928, 931 (2009) (internal quotation marks omitted).


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         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.

Id. (emphasis in original) (internal citations and quotation marks omitted).

Pennsylvania law makes clear, however, that a police officer has probable

cause to stop a motor vehicle if the officer observed a traffic code violation,

even if it is a minor offense. Commonwealth v. Chase, 599 Pa. 80, 89,

960 A.2d 108, 113 (2008).

      Section 3308 of the Motor Vehicle Code provides:

         § 3308. One-way roadways and rotary traffic islands

                                  *    *    *

            (b) Driving on one-                                 Upon a
         roadway designated for one-way traffic, a vehicle shall be
         driven only in the direction designated at all or such times
         as shall be indicated by official traffic-control devices.

75 Pa.C.S.A. § 3308(b). Further, Section 3334 provides:

         § 3334. Turning movements and required signals

            (a)                    Upon a roadway no person shall
         turn a vehicle or move from one traffic lane to another or
         enter the traffic stream from a parked position unless and
         until the movement can be made with reasonable safety
         nor without giving an appropriate signal in the manner
         provided in this section.

75 Pa.C.S.A. § 3334(a).

      Instantly, the original Municipal Court conducted a suppression hearing

where the Commonwealth presented testimony from Officers Miranda and


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Allen. Officer Miranda testified that he and Officer Allen were on patrol when

they observed Appellant driving eastbound on Haines Street.               Officer

Miranda explained that Haines Street is a one-way street for westbound



proceeded down Haines Street. At the intersection of Haines and Baynton

Streets, Appellant made a left turn without signaling. (See N.T. Suppression

Hearing at 69; R.R. at 18.) Officer Miranda explained that no other vehicles

                                                    hicle.   At that point, the

officers initiated a traffic stop and Appellant pulled over on Baynton Street.



Appellant behind the wheel, and asked Appellant for her paperwork.            As

Appellant fumbled through her handbag, Officer Miranda asked Appellant



                                                 Id. at 18; R.R. at 5).    Upon

interacting with Appellant, Officer Miranda smelled a strong odor of alcohol



                                                 Id.)   Officer Miranda asked

Appellant to step out of her vehicle, and she complied.         Officer Miranda



                            Id. at 19-20; R.R. at 5). Appellant subsequently

failed to produce her identification or paperwork for the vehicle.        Officer




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Allen conducted a pat dow

arrested Appellant for DUI.

      After having the officer describe his interaction with Appellant, the

prosecutor asked Officer Miranda about his DUI detection training:

         [COMMONWEALTH]:            Now, do you have training in
         detection of impaired drivers?

         [WITNESS]:                   Yes, they teach us that in the
         Academy.

         [COMMONWEALTH]:
         give you in the Academy?

         [WITNESS]:                 We go through all the motor
         vehicle laws and all the DUIs, how to detect DUIs.

         [COMMONWEALTH]:              I see. And have you ever made
         a DUI arrest before?

         [WITNESS]:                   Yes.

         [COMMONWEALTH]:              About how many times?

         [WITNESS]:

         [COMMONWEALTH]:            And have you had occasions to
         see intoxicated persons during the course of your career
         and in your personal life?

         [WITNESS]:                   Yes.

         [COMMONWEALTH]:              And about how many times?

         [WITNESS]:                   About 100.

(Id. at 25-

personal experiences, the officer believed Appellant was incapable of safe

driving on the night of her arrest.

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      On cross-

statements about his experiences with intoxicated persons:

         [COUNSEL]: Okay. You said, one of the questions you
         said on direct was that you had 200 DUI arrests?

         [WITNESS]:     Yes.

         [COUNSEL]:
         100 people intoxicated?

         [WITNESS]:

(Id. at 38; R.R. at 10).   Officer Miranda attempted to clarify that he was

comparing the number of intoxicated persons he had encountered during his

police career to the number of intoxicated persons he had encountered in his

personal life. Defense counsel, however, continued to press the officer with

questions about whether he had arrested individuals that he believed were

not intoxicated.

      Later during cross-examination, defense counsel questioned Officer

Miranda about the amount of alcohol a person can drink before being unable

to operate a vehicle:

         [COUNSEL]: Would you agree people can drink alcohol
         and operate a vehicle?

         [WITNESS]:     No.

         [COUNSEL]:


         THE COURT:     Give him a chance to answer the questions.




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         [WITNESS]:
         type of alcohol and driving, more than likely you might be
         impaired.

(Id. at 55; R.R. at 14) (emphasis added).



testimony.    Officer Allen testified

driving in the wrong direction on Haines Street. Officer Allen indicated that



at the time of their initial observations. During the traffic stop, Officer Allen




         She was disoriented, she was moving rather slow, she kept
         looking from the back to the front, she was looking around
         the front. She had containers of food in the car, platters,
         and she actually spilled a platter of food into the passenger
         seat, the front passenger seat.

(Id. at 79; R.R. at 20).

      Officer Miranda flashed a hand signal to notify Officer Allen of his belief

that Appellant was intoxicated. After Officer Miranda ordered Appellant out

of the vehicle, Officer Allen conducted the pat down search.           Appellant

                                                              Id. at 82; R.R. at




was incapable of safely operating a motor vehicle on the night in question.


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      On cross-examination, Officer Allen testified that there was another



first observed Appellant driving down Haines Street. In response, defense

                                                                   Id. at 106;

R.R. at 27).   Officer Allen explained that there were no cars on Baynton

Street, where the traffic stop occurred. Further, Officer Allen reiterated that



      After the Commonwealth rested, Appellant testified on her own behalf.

Appellant denied driving down Haines Street on the night of her arrest.

Appellant said she left a restaurant on Chelten Avenue at approximately

11:30 p.m.     After proceeding southbound on Chelten Avenue, Appellant

made a right turn onto Germantown Avenue, followed by a right turn onto

Rittenhouse Street. At the intersection of Rittenhouse and Baynton Streets,

Appellant claimed to have made a left turn onto Baynton Street.          While

Appellant indicated that there was traffic in the area of Germantown Avenue,

Appellant did not specify whether there were other vehicles traveling on

Rittenhouse or Baynton Streets. (Id. at 121-22; R.R. at 31).

      At the intersection of Baynton and Haines Streets, Appellant saw the




had been drinking.     Appellant admitted telling the officer that she had

consumed one chocolate martini earlier that evening.           Appellant also


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admitted that she had taken her shoes off while driving the vehicle.

Appellant explained she had been wearing high heels all night, and her feet




                  Id. at 125; R.R. at 32).

       Following the hearing, the original Municipal Court jurist granted




about the number of intoxicated individuals he had arrested.           The court



                                                                        See N.T.

Hearing,   11/1/11,   at   4;   R.R.   at   41.)   Here,   the   Municipal   Court

misc

of the DUI suspects he had arrested were not intoxicated, Officer Miranda

was attempting to explain that he had encountered approximately 200

intoxicated drivers as a police officer and another 100 intoxicated individuals

in his personal life. (See N.T. Suppression Hearing at 25-26, 38-39; R.R. at

7, 10.)



regarding the amount of alcohol an individual can consume before becoming




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went even further when he indicated, quote, no one can drink any amount of

                                            See N.T. Hearing, 11/1/11, at 4;

R.R. at 41.)   Again, Officer Miranda did not make the statement that the




                          See N.T. Suppression Hearing at 55; R.R. at 14.)

     Regarding the number of vehicles on the road at the time of the stop,

the court ignored all evidence of record and made a finding based on the



easily accessible crime statistics for the 14th                    See N.T.

Hearing, 11/1/11 at 5; R.R. at 42.) We reiterate that a suppression court

must base its findings of fact solely on the evidence placed on the record

during the suppression hearing. See In re L.J., ___ Pa. ___, 79 A.3d 1073

(2013) (explaining language of Pa.R.Crim.P. 581 strongly suggests that

record of suppression hearing is intended to be complete record for

suppression issues). While Officer Miranda stated that there were no other

vehicles on the road, and Officer Allen indicated that there was one vehicle

between the officers and Appellant, both officers agreed that they never lost



that she turned off Germantown Avenue to avoid traffic, and she did not say

that she encountered any other vehicles on the road after exiting

Germantown Avenue.


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       To the extent that the suppression court elaborated on discrepancies

                                                            orts, both officers testified



police reports included in the certified record make no mention of the
                                      2
                                          Under these circumstances, we cannot say

that a

reports.

       Based upon the foregoing, the record did not support the original



evidence     adduced     at     the   suppression      hearin

testimony,    the    original    Municipal     Court   relied   on   its   own   confused



unrelated to the incident at issue.            Absent some findings of fact actually

supported by the record, the CCP could not allow the suppression ruling to

stand. See Williams, supra. In light of the evidence establishing that the

officers witnessed Appellant committing Motor Vehicle Code violations, and

                                                f indicia of intoxication, we conclude


____________________________________________


2
    The certified record contains an envelope with the exhibits presented at

                                                                            submitted at




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                                                                         Id.

Thus, Appellant is not entitled to relief on her first issue.

      In her second issue, Appellant asserts the Commonwealth did not

timely pursue its motion for recusal of the Municipal Court jurist. Appellant

contends the Commonwealth should have pursued recusal prior to the

suppression hearing; instead, the Commonwealth did not act until after the

original Municipal Court jurist had issued a ruling in favor of Appellant.



merit, because the connection between Appellant and the Municipal Court

jurist was too attenuated.      Appellant maintains the fact that she had a

Facebook friendship with the jurist did not demonstrate the parties were

anything more than acquaintances, and the Commonwealth fell short of

establishing any type of bias.      Appellant concludes the CCP erroneously

                                                          ree.

      We review recusal issues subject to the following principles:

         It is the burden of the party requesting recusal to produce
         evidence establishing bias, prejudice or unfairness which

         preside impartially. As a general rule, a motion for recusal
         is initially directed to and decided by the jurist whose
         impartiality is being challenged. In considering a recusal
         request, the jurist must first make a conscientious
         determination of his or her ability to assess the case in an
         impartial manner, free of personal bias or interest in the
         outcome. The jurist must then consider whether his or her
         continued involvement in the case creates an appearance
         of impropriety and/or would tend to undermine public
         confidence in the judiciary.       This is a personal and
         unreviewable decision that only the jurist can make.

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        Where a jurist rules that he or she can hear and dispose of
        a case fairly and without prejudice, that decision will not
        be overturned on appeal but for an abuse of discretion. In
        reviewing a denial of a disqualification motion, we
        recognize that our judges are honorable, fair and
        competent.

Commonwealth v. White, 557 Pa. 408, 426, 734 A.2d 374, 383-84 (1999)

(quoting Commonwealth v. Abu-Jamal, 553 Pa. 485, 507, 720 A.2d 79,

89 (1998)) (internal citations omitted).    Additionally,

recusal or disqualification must raise the objection at the earliest possible



Commonwealth v. Pappas, 845 A.2d 829, 846 (Pa.Super. 2004), appeal

denied, 580 Pa. 712, 862 A.2d 1254 (2004) (quoting Commonwealth v.

Stafford, 749 A.2d 489, 501 (Pa.Super. 2000)).

     Instantly, the Commonwealth raised the recusal issue in its November

14, 2011 motion to reconsider the suppression ruling and new matter. In

that motion, the Commonwealth referenced a newspaper article, dated

November 5, 2011, detailing the outcome of the suppression hearing and

the Facebook relationship between Appellant and the Municipal Court jurist.

Under these circumstances, we decline Appe

the Commonwealth should have filed a recusal motion prior to the

suppression hearing. See Pappas, supra.



                                                  readily view that each of




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                                                                                 See

Motion to Reconsider and New Matter at 3) (internal citation omitted). The

record also includes the November 5, 2011 newspaper article that reported




demonstrated that the Municipal Court jur

case created an appearance of impropriety tending to undermine public

confidence in the judiciary. See White, supra. Thus, the CCP did not err in

removing    the   original   jurist   from     the   case   in   response   to   the

Commonwealt                    Id.    Accordingly, we affirm the judgment of

sentence.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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