J-E01005-18

                               2019 PA Super 1


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 TRAVELLE JOHNSON                        :   No. 907 MDA 2016

                 Appeal from the Order Entered May 6, 2016
  In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0000454-2016


BEFORE: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
        J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.

DISSENTING OPINION BY LAZARUS, J.: FILED: JANUARY 3, 2019

      I respectfully dissent. In my opinion, the trial court did not commit an

error of law in concluding that Trooper Kaczor did not have probable cause to

stop Johnson. I would affirm the court’s order granting Johnson’s motion to

suppress.

      The Majority finds the trial court erred because it focused on Trooper

Kaczor’s subjective motivation for the stop when the proper Fourth

Amendment analysis is an objective one. The Majority states the suppression

transcript does not reflect a finding that Trooper Kaczor’s testimony was not

credible. As such, the Majority assumes Trooper Kaczor’s credibility without

a determination by the trial court. In my view, that assumption is mistaken.

The trial court did not credit Trooper Kaczor’s testimony that his speedometer

showed Johnson was driving 70 miles per hour in a 55 mile per hour zone.
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      In Commonwealth v. Salter, 121 A.3d 987 (Pa. Super. 2015), we

stated:

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If 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. Where 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. Illustrative of these two standards are
      stops for speeding and DUI. If a vehicle is stopped for
      speeding, the officer must possess probable cause to stop
      the vehicle. This is so because when a vehicle is stopped,
      nothing more can be determined as to the speed of the
      vehicle when it was observed while travelling upon a
      highway.

Id. at 993 (emphasis added).

      My independent review of the record, which includes the transcript from

the suppression hearing and the DVD of the trooper’s dash cam video, reveals

that Trooper Kaczor testified that he stopped Johnson’s vehicle due to an

alleged violation of driving on a roadway laned for traffic and for exceeding

the posted speed limit. Neither of these violations of the Vehicle Code required

further investigation.    Accordingly, in order to effectuate a legal stop of

Johnson’s   vehicle,     Trooper   Kaczor   required   probable   cause.    See

Commonwealth v. Busser, 56 A.3d 419 (Pa. Super. 2012).               Thus, the

vehicle stop could be constitutionally valid only if Trooper Kaczor could

“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


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was in violation of some provision of the [Vehicle] Code.” Commonwealth

v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010). Accordingly, here, the

focus is on whether, as a matter of law, the suppression court erred in finding

that Trooper Kaczor did not have probable cause to stop Johnson and in

granting Johnson’s motion to suppress.

      In determining whether Trooper Kaczor had probable cause, courts look

to the totality of the circumstances as viewed through the eyes of a reasonable

police officer guided by experience and training. Commonwealth v. Wells,

916 A.2d 1192 (Pa. Super. 2007). Pennsylvania law makes clear, however,

that a police officer has probable cause to stop a motor vehicle if the officer

observed a violation of the Motor Vehicle Code.   Feczko, supra.

      Here, at the suppression hearing, Trooper Kaczor testified that he

observed a gray Acura “cross over the lines, the roadway lines, multiple

times[.]” N.T. Suppression Hearing, 5/4/16, at 6. He further testified that

while following Johnson’s car for about four miles, he “clocked it with [his]

patrol unit, which is certified, going 70 in a 55 mile[] per hour zone.” Id. At

that point, he and Trooper Kabacinski, who was riding with him, decided to

initiate a traffic stop. Id.

      When questioned on cross-examination, however, Trooper Kaczor

acknowledged that he had nothing to prove that his speedometer was actually




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certified.   Id. at 11.1      Further, Trooper Kaczor could not recall how far

Johnson’s wheels went over the fog line.          Id. at 14.   He could not recall

whether Johnson’s wheels were straddling the line. Id. at 14. When asked

whether Johnson’s wheels were over the center dotted line or just touching it,

Trooper Kaczor stated he “believe[d] they were slightly over[,]” but could not

recall if that was the case both times. Id.       Trooper Kaczor testified that he

followed Johnson for about four miles, and that he recalled Johnson’s wheels

were slightly over the lane line on one or two occasions, id. at 14, and agreed

at several points that Johnson’s wheels were in fact on, and not over, the lane

lines. Id. at 29-30, 41.

       Trooper Kaczor also acknowledged on cross-examination that there is a

point in the highway where the fog line disappears for a distance and later

reappears, and that at this point Johnson had driven “a steady straight course

within his lane of travel[.]” Id. at 33. He stated Johnson’s vehicle was “on

the dotted line,” but that there were no vehicles next to him and that his

vehicle did not jerk or swerve.         Id. at 34, 38.   Moreover, Trooper Kaczor

agreed that at points where the highway curves, his view was somewhat

obscured.     Id. at 37.     Contrary to the Majority’s statement that because

Johnson was speeding, there was probable cause, regardless of the Trooper

Kaczor’s state of mind, Johnson’s speed was not the legal basis for Trooper
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1The requirements for establishing probable cause to stop a vehicle and what
evidence is required to prove a violation of the Motor Vehicle Code, i.e., a
certified speedometer or speed-timing device, are not lost on this author. See
75 Pa.C.S.A. §§ 3368, 6308.

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Kaczor’s stop. He did not initially communicate to his partner that he was

pulling Johnson over for speeding and he did not activate his lights when he

observed Johnson exceed the speed limit.

      The trial court viewed the dash cam video and determined that it did not

bear out any of the trooper’s testimony. Trial Court Opinion, 5/6/16, at 5.

The court observed that Trooper Kaczor “did not activate his lights to initiate

a stop shortly after observing [Johnson] exceed the speed limit[.]” Id. at 4.

The court further stated that “the fact that Trooper Kaczor did not activate his

lights to initiate a stop shortly after observing [Johnson] exceed the speed

limit, leads this [c]ourt to conclude that [Johnson] driving his vehicle in excess

of the maximum lawful speed on Interstate 83 was not the legal basis for

stopping [Johnson’s] vehicle.” Id. at 5 (emphasis added). The court also

considered that Trooper Kaczor had recently graduated from the State Police

Academy, that he had been patrolling for only three months prior to stopping

Johnson’s vehicle, and that this was his first DUI arrest.      Id. at 13.   See

Wells, supra; see also Commonwealth v. Thompson, 985 A.2d 928 (Pa.

2009) (holding police officer’s experience is relevant factor in determining

probable cause).

      The trial judge found that the dash cam video was more reliable than

the officer’s testimony; the judge based her decision to suppress the evidence

on her view of the video. I note that the Commonwealth argues that the trial

court “credited” the “evidence” that “the trooper clocked [Johnson] driving at

a rate of speed of 70 miles per hour in a 55 mile per house zone[.]”

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Commonwealth’s Brief, at 4, 10, 14-17. The Commonwealth avers, therefore,

that it logically follows that the trooper had probable cause to stop Johnson’s

vehicle for speeding. I disagree, not with the proposed legal conclusion, but

with the Commonwealth’s assertion that the court credited the trooper’s

statement as true. The court acknowledged that the trooper testified to this,

but the court repeatedly did not find that this was the basis of the stop. The

court stated:

       In reviewing the video recording of the vehicle stop from Trooper
       Kaczor’s patrol car, this Court did not find evidence that Trooper
       Kaczor initially communicated to [Johnson] that he was being
       pulled over for exceeding the speed limit. The [c]ourt observed,
       in review of the video recording of the vehicle stop, that Trooper
       Kaczor followed [Johnson] for roughly five (5) miles as he
       travelled northbound on Interstate 83. The trooper testified he
       utilized his speedometer to . . . clock [Johnson’s] vehicle at 70
       miles per hour. However, the fact that Trooper Kaczor did not
       activate his light to initiate a stop shortly after observing
       [Johnson] exceed the speed limit, leads this [c]ourt to conclude
       that [Johnson] driving his vehicle in excess of the maximum lawful
       speed on Interstate 83 was not the legal basis for stopping the
       [Johnson’s] vehicle.

Trial Court Opinion, supra at 5 (emphasis added).           Though not plainly

iterated, I conclude that the court did not “credit” Trooper Kaczor’s testimony

as true, but only as stated.2



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2 It is occasionally the case that a judge just does not believe a police officer;
here, a clear credibility determination might have foreclosed a Commonwealth
appeal and en banc review. In the future, I would caution the trial court not
to leave it to the appellate court to interpret the court’s meaning.


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       This Court’s standard of review when the Commonwealth appeals a

suppression order is limited. “The suppression court’s findings of fact bind an

appellate court if the record supports those findings.”     Commonwealth v.

Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016). Although the suppression

court’s conclusions of law are not binding on this Court, our duty is to

determine if the suppression court properly applied the law to the facts. Id.

       My review leads me to conclude that the record, including the

suppression hearing testimony, the trooper’s equivocal testimony, and the

dash cam video, supports the suppression court’s findings of fact. Further, I

find the suppression court properly applied the law to the facts to conclude

that Trooper Kaczor failed to articulate specific facts to establish probable

cause to stop Johnson’s vehicle for a speeding violation under 75 Pa.C.S.A. §

3362(a)(2), or a violation of driving on roadways laned for traffic under 75

Pa.C.S.A. § 3362(a)(2).3            In my opinion, the circumstances, viewed
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3  To be clear, the trial court has confused some of the language pertaining to
the two different levels of “cause” required for a vehicle stop. Only reasonable
suspicion is required for a stop that requires further investigation, whereas
probable cause is required if it is not necessary to stop the vehicle to establish
that a violation of the Motor Vehicle Code has occurred, e.g., speeding. See
Feczko, supra; see also Salter, supra at 993. Here, the Commonwealth is
relying on the trooper’s “clocking” testimony to support probable cause to stop
Johnson for speeding, an offense that requires no further investigation.
Notably, the trial court states: “Considering the facts within the totality of the
circumstances, this [c]ourt concludes that there are no articulable and
reasonable grounds present that provided Trooper Kaczor with reasonable
suspicion to believe that [Johnson] was in violation of the Motor Vehicle Code.”
Trial Court Opinion, supra at 5-6. The “articulable and reasonable grounds”
language pertains to probable cause, not reasonable suspicion, and it is clear



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objectively, did not justify the stop.         The trial court, therefore, properly

granted Johnson’s motion to suppress.

       For these reasons, I dissent. I would affirm the trial court’s grant of

Johnson’s motion to suppress.

       Judge Panella, Judge Dubow and Judge Kunselman join this Dissenting

Opinion.




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the trial court meant to state that the trooper did not have probable cause to
believe that Johnson had violated the Motor Vehicle Code.

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