J-S04042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    PETER A. HISSIM                            :
                                               :
                      Appellant                :   No. 1464 EDA 2016

            Appeal from the Judgment of Sentence February 5, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0000181-2015


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED February 27, 2017

        Appellant Peter Hissim appeals the judgment of sentence entered by

the Court of Common Pleas of Northampton County after Appellant was

convicted of Driving Under the Influence (DUI) and related summary

offenses. Appellant claims the trial court erred in denying his suppression

motion and raises a weight of the evidence claim. We affirm.

        On November 1, 2014, Sergeant John Harmon, a twenty-one year

veteran of the Colonial Regional Police Department, was on a roving DUI

patrol in Bath, Pennsylvania. At approximately 2:02 a.m., Sergeant Harmon

observed a black Chevrolet Silverado traveling westbound on West Main

Street at an “extremely” high rate of speed.           Notes of Testimony (N.T.),


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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1/13/15, at 5. Sergeant Harmon made this determination based on the fact

that he needed to travel in excess of 70 to 80 miles-per-hour to catch up to

the Silverado on a road where the posted speed limit was 35 miles-per-hour.

Sergeant Harmon also observed the vehicle cross the center lane of travel.

        Continuing to follow the truck as it turned onto Race Street, Sergeant

Harmon initiated a traffic stop as the vehicle approached East Allen

Township. Upon identifying the driver as Appellant, Sergeant Harmon noted

a strong odor of alcohol coming from the vehicle, observed Appellant’s eyes

were glassy and bloodshot, and deemed his behavior to be “combative.”

After Appellant submitted to field sobriety testing, Sergeant Harmon noted

Appellant showed signs of impairment and arrested him for suspicion of DUI.

Subsequent blood tests revealed Appellant’s blood alcohol level was 0.13%.

        Appellant was charged with DUI (high rate of alcohol), DUI (general

impairment: incapable of safely driving), failure to drive at a safe speed,

failure to drive on roadways laned for traffic, and careless driving.1

Appellant filed a suppression motion claiming Sergeant Harmon did not have

the requisite suspicion to stop his vehicle.      The trial court denied this

suppression motion. On January 8, 2016, the trial court convicted Appellant

of both DUI counts, failure to drive at a safe speed, and failure to drive on

roadways laned for traffic, but acquitted him of careless driving.


____________________________________________


1
    75 Pa.C.S. §§ 3802(b), 3802(a), 3361, 3309(1), and 3714(a).



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       On February 5, 2016, the trial court sentenced Appellant to a period of

thirty days to six months imprisonment as this was Appellant’s second DUI

conviction. On February 16, 2016, Appellant filed a post-sentence motion,

which the trial court subsequently denied.2 Appellant filed a timely notice of

appeal and complied with the trial court’s order to file a concise statement of

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

       Appellant raises two issues for our review on appeal:

       1. Whether there was insufficient probable cause to stop
          [Appellant] when Officer Harmon did not follow [Appellant] for
          three-tenths of a mile?

       2. Whether   [Appellant’s]   conviction   for   DUI,   General
          Impairment, was against the weight of the evidence when the
          Commonwealth did not prove [Appellant] was substantially
          impaired?

Appellant’s Brief, at 5.

       Appellant first claims the trial court erred in denying his suppression

motion, asserting that Sergeant Harmon lacked the probable cause needed

to initiate the traffic stop of his vehicle for speeding. Specifically, Appellant

claims that the investigative stop was unjustified as Sergeant Harmon was

required to follow Appellant for three-tenths of a mile to clock his speed
____________________________________________


2
  Generally, “a written post-sentence motion shall be filed no later than 10
days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Appellant’s
post-sentence motion was due on Monday, February 15, 2016, on which
President’s Day was celebrated.      Court holidays are omitted from the
calculation of a period of time when the holiday is the last day of the
requisite period. See 1 Pa.C.S. § 1908. As a result, Appellant’s post-
sentence motion was timely filed on Tuesday, February 16, 2016.



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using his speedometer.    We review a trial court’s denial of a suppression

motion under the following standard:

      Our 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, we are bound by these 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 an 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 courts
      below are subject to our plenary review.

Commonwealth v. Johnson, 146 A.3d 1271, 1273 (Pa.Super. 2016)

(citation omitted).

      With respect to vehicle stops based on suspected violations of the

motor vehicle code, Section 6308(b) of the Vehicle Code provides:

      (b) Authority of police officer.—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 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. § 6308(b).




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      In Commonwealth v. Feczko, 10 A.3d 1285 (Pa.Super. 2010), this

court further explained the state of the law with respect to vehicle stops:

      Traffic stops based on a 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.] Chase, 960 A.2d [108,] 116
      [(Pa. 2008)].

      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 such an instance, “it is encumbent
      [sic] upon the 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.” [Commonwealth v.]
      Gleason, 785 A.2d [983,] 989 [(Pa. 2001)].

Id. at 1291. In other words, “[w]here 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). Consistent with Fezcko, this

Court has held that 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.      Commonwealth v.

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

      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

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      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) (citation

omitted).

      Section 3361 of the 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 (emphasis added).

      In Commonwealth v. Heberling, 678 A.2d 794, 797 (Pa.Super.

1996), this Court upheld a defendant’s conviction under Section 3361 based

on the arresting officer’s observation that the defendant was traveling “at an

extreme rate of speed” in a 45 mile-per-hour zone as the defendant was

approaching an intersection and the crest of a hill. The officer in Heberling

did not measure the defendant’s exact speed before stopping his vehicle.

We have consistently emphasized that “Section 3361 does not require that a




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specific speed limit must be exceeded in order for a violation to occur.”

Commonwealth v. Martorano, 563 A.2d 1229, 1233 (Pa.Super. 1989).

       In this case, Sergeant Harmon observed Appellant traveling at an

“extremely” high rate of speed down West Main Street as Appellant’s truck

approached and turned at the intersection at Race Street. Sergeant Harmon

was able to determine that Appellant was travelling at a speed well beyond

the posted thirty-five miles per hour speed limit as Sergeant Harmon had to

pursue Appellant at speeds in excess of 70 to 80 miles-per-hour to catch up

to his vehicle. Sergeant Harmon also observed the vehicle cross the center

lane of travel. We find that Sergeant Harmon had probable cause to stop

Appellant for violating Section 3361 and conclude that the trial court did not

err in denying Appellant’s suppression motion.3

       Appellant also claims his conviction for DUI (general impairment:

incapable of safely driving) was against the weight of the evidence. When

reviewing a challenge to the weight of the evidence, our standard of review

is as follows:

       The essence of appellate review for a weight claim appears to lie
       in ensuring that the trial court's decision has record support.

____________________________________________


3
   In denying Appellant’s suppression motion, the trial court found the
investigative stop was justified by reasonable suspicion that Appellant had
violated the Vehicle Code. “[I]t is well settled that where the result is
correct, an appellate court may affirm a lower court's decision on any ground
without regard to the ground relied upon by the lower court itself.”
Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa.Super. 2007).



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     Where the record adequately supports the trial court, the trial
     court has acted within the limits of its discretion.

     A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Rather, the
     role of the trial judge is to determine that notwithstanding all the
     facts, certain facts are so clearly of greater weight that to ignore
     them or to give them equal weight with all the facts is to deny
     justice.

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court. Appellate review of a weight
     claim is a review of the exercise of discretion, not of the
     underlying question of whether the verdict is against the weight
     of the evidence.

Commonwealth v. Mucci, 43 A.3d 399, 410–11 (Pa.Super. 2016),

(quoting Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55

(2013).

     The term “discretion” imports the exercise of judgment, wisdom
     and skill so as to reach a dispassionate conclusion within the
     framework of the law, and is not exercised for the purpose of
     giving effect to the will of the judge. Discretion must be
     exercised on the foundation of reason, as opposed to prejudice,
     personal motivations, caprice or arbitrary actions. Discretion is
     abused where the course pursued represents not merely an error
     of judgment, but where the judgment is manifestly unreasonable
     or where the law is not applied or where the record shows that
     the action is a result of partiality, prejudice, bias or ill-will.

Clay, 619 Pa. at 433, 64 A.3d at 1055.

     DUI under Subsection 3802(a)(1) is defined as follows:

     (a) General impairment.




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      (1) An individual may not drive, operate or be in actual physical
      control of the movement of a vehicle after imbibing a sufficient
      amount of alcohol such that the individual is rendered incapable
      of safely driving, operating or being in actual physical control of
      the movement of the vehicle.

75 Pa.C.S. § 3802(a)(1) (italics in original).

      Specifically, Appellant claims that his conviction for DUI (general

impairment) cannot stand as he did not drive erratically and his medical

condition of Bell’s Palsy caused Sergeant Harmon to believe he was

intoxicated. The trial court rejected these claims, reasoning as follows:

      The evidence also clearly [shows] that [Appellant] was incapable
      of safely operating the vehicle because of intoxication. Officer
      Harmon testified that the Appellant was driving the vehicle in
      excess of 70 miles per hour and detected a strong odor of
      alcohol coming from Appellant’s vehicle, observed that the
      Appellant did have glassy, bloodshot eyes, and testified as to the
      Appellant’s agitated and combative behavior during the traffic
      stop. The Officer also conducted field sobriety tests, all of which
      indicated Appellant’s intoxication. In the “One Leg Stand” test,
      [Appellant] exhibited three of the four intoxication indicators,
      swaying during the entire test, raising his arms for balance and
      putting his foot down several times during the test. During the
      “Walk and Turn” [test,] he exhibited six intoxication indicators,
      not keeping his balance, starting the test too soon, did not step
      heel to toe, showed excessive distance between his feet, stepped
      off the line and raised his arms for balance. Lastly, on the
      “Finger to Nose” test[,] the Appellant missed touching his nose
      on two of the four attempts, failed to follow instructions and was
      swaying during the administration of the test. Based on these
      indicators, Officer Harmon concluded that the Appellant showed
      significant signs of impairment and placed him under arrest.

      Additionally, the Officer indicated that he instructed the
      Appellant to notify him if he felt insecure or physically unable to
      perform any of the tests, prior to the test. Although the Officer
      was informed that the Appellant had a medical condition, Bell’s
      Palsy, the Appellant never indicated that his condition, or any
      other difficulty, prevented him from performing any of the field


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      sobriety tests. Therefore, based on the evidence presented to
      this Court at the time of trial, we concluded that the
      Commonwealth met its burden of proving beyond a reasonable
      doubt that [Appellant] was guilty of Driving Under the Influence
      of Alcohol, General Impairment.

Trial Court Opinion, 6/5/16, at 4-5. There is support in the record for the

trial court’s ruling in which the law was properly applied, and we discern no

partiality, prejudice, bias or ill-will.        See Clay, supra.   Accordingly,

Appellant’s weight claim also fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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