J-S28004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MALCOM XAVIER ROGERS                       :   No. 41 MDA 2019

               Appeal from the Order Entered December 7, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003696-2018


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY BOWES, J.:                 FILED DECEMBER 20, 2019

        I respectfully disagree with the learned majority’s conclusion that

Reading Police Officer Hector Marinez articulated specific facts to demonstrate

that he had probable cause to initiate the traffic stop of Malcom Rogers’s

vehicle for careless driving. Namely, unlike my esteemed colleagues, I do not

believe that the certified record bears out that Rogers’s driving created a

probable risk of harm to persons or property.

        The majority adeptly addressed our standard of review and outlined the

level of suspicion that Officer Marinez was required to possess in order to

effectuate a constitutionally firm traffic stop of Rogers’s vehicle for careless

driving under § 3714(a). Accordingly, I do not revisit those principles herein.

However, for ease of discussion, I reiterate that careless driving requires a

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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careless disregard for the safety of others, which occurs when the defendant

engages in less than willful or wanton conduct but more than mere negligence

or lack of ordinary care under the circumstances.         Commonwealth v.

Gezovich, 7 A.3d 300, 301 (Pa.Super. 2010).          Instantly, the trial court

concluded that, “given all of the evidence,” Rogers’s actions in “spinning

wheels” did not give rise to probable cause of careless driving. Findings of

Fact and Conclusions of Law, 12/7/18, at 4. In light of the testimony that the

incident occurred in an area that was not adjacent to people or property, and

the fact that Officer Marinez did not testify that Rogers’s car moved during the

burnout, I would not disturb the suppression court’s determination.

      Essentially, I believe that Officer Marinez’s testimony falls short of the

evidence of probable cause adduced in Commonwealth v. Venable, 200

A.3d 490 (Pa.Super. 2018), which the majority cogently discusses.            In

Venable, this Court affirmed the trial court’s finding that a police officer had

probable cause to believe Venable was in violation of the careless driving

statute because Venable’s actions placed others at risk of harm. We reasoned,

      Upon review, we find that [the police officer’s] observations of
      Appellant “spinning his tires, causing the rear end of the truck to
      kick out or fishtail into the other lane, and then accelerating very
      quickly west on High Street,” were sufficient to give the [officer]
      probable cause to stop Appellant for careless driving.

Venable, supra at 499 (cleaned up).

      Unlike the appellant in Venable, who clearly placed people and property

at risk by causing his vehicle to fishtail into the lane designated for oncoming


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traffic, Rogers stayed within his lane of travel and cannot be deemed to have

acted with careless disregard for the safety of persons or property because

neither was in the vicinity.     Indeed, rather than articulate specific facts

possessed by him that would support the inference of careless driving, Officer

Marinez testified that the intersection was empty of automobiles and

pedestrians, Rogers’s vehicle remained in the correct lane of travel at all

times, and was not at risk of striking a vehicle or person. N.T., 10/29/18, at

20-21.   Cf. Commonwealth v. Deily, 344 A.2d 595 (Pa.Super. 1975)

(finding sufficient evidence of reckless driving where “[t]he officer at the scene

observed the vehicle lurch forward fishtailing and almost causing an

accident”).

      Having reviewed the certified record for evidence that Rogers lost

control of his vehicle or posed a danger to a person or property, and having

found none, the trial court correctly concluded that, based upon the

circumstances, the requisite probable cause did not exist for Officer Marinez

to conduct a traffic stop for careless driving.        Phrased differently, the

Commonwealth failed to demonstrate that Rogers acted with “careless

disregard for the safety of persons or property” sufficient to warrant the traffic

stop. 75 Pa.C.S. § 3714(a).

      The majority relies upon Commonwealth v. Lindblom, 854 A.2d 604,

608 (Pa.Super. 2004), for the proposition that the fact “[t]hat no other person

or property was in sight [of Rogers’s vehicle] is of no moment,” and in


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construing an implicit danger in Rogers’s alleged “sudden acceleration and fast

turn at [the] intersection.”    Majority Memorandum at 8.        Police stopped

Lindblom for careless driving after receiving information from another driver

who observed Lindblom weave over the double yellow line and cross the berm

line four or five times each.   After initiating a traffic stop based upon this

information, the police officer arrested Lindbom for driving under the influence

of alcohol. The trial court suppressed the evidence of Lindblom’s intoxication

because the basis for the stop, the alleged careless driving, did not create a

safety hazard to any other people or property.             Id. at 607.       The

Commonwealth appealed, and we reversed.             Referencing evidence that

Lindblom engaged in prolonged erratic driving, this Court concluded that the

police officer had probable cause to believe that Lindblom committed careless

driving, even absent evidence of opposing traffic, because Lindblom’s erratic

driving placed his own safety at risk. Id. at 608. The majority embraces this

position in the case at bar, but ignores the dearth of evidence concerning

prolonged erratic driving or a likely risk of harm to a person (including Rogers)

or property at the intersection. Instead, it surmises what might have occurred

if people or vehicles had been present, which they were not. In contrast to

my learned colleagues, I would reject this conjecture absent some additional

evidence of a safety hazard like the prolonged erratic driving that we discussed

in Lindblom. Id. (quoting Commonwealth v. Slonaker, 795 A.2d 397, 401




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(Pa.Super.2002)) (Lindblom’s driving was “significantly less benign” than the

facts outlined in [Commonwealth v.] Gleason, [785 A.2d 983 (Pa. 2001)]).”

      By way of comparison, there is a safety component in driving on

roadways laned for traffic under § 3309(a) that is similar to the analogous

element in careless driving insofar as that statute permits a driver to leave

the lane of travel if the movement can be performed safely. See Gleason,

supra, superseded by 75 Pa.C.S. § 6308(b) as to level of suspicion required

to effectuate traffic stop as stated in Commonwealth v. Holmes, 14 A.3d

89, 94 n.12 (Pa. 2011). See also Commonwealth v. Enick, 70 A.3d 843,

847 (Pa. Super. 2013) (language of section 3309(1), which requires motorists

to maintain a single lane “as nearly as practicable,” “does not foreclose minor

deviations”); and Commonwealth v. Cook, 865 A.2d 869, 874 (Pa.Super.

2004) (“Whether an officer possesses probable cause to stop a vehicle for a

violation of . . . section [3309(1)] depends largely upon . . . whether a driver’s

movement from his lane is done safely.”). A brief discussion of Gleason is

warranted.

      In Gleason, a police officer “observed [Gleason’s car] cross the solid

fog line on two or three occasions over a distance of approximately one quarter

mile” but did not see any “other vehicles on the roadway.” Gleason, supra

at 985. Following a traffic stop, Gleason was arrested for driving under the

influence of alcohol and related offenses.      The trial court suppressed the

evidence of intoxication because the police officer had insufficient grounds to


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initiate the traffic stop “simply because he observed Appellant swerve onto

the berm of the roadway two or three times.” Id.             We reversed the

suppression court, but our Supreme Court overruled our decision. The High

Court reasoned, “the lack of any evidence at the suppression hearing that

[Gleason’s] driving created a safety hazard leads us to agree with the trial

court that there was insufficient evidence to support a Section 3309(1)

violation.” Id. at 989 (internal quotations omitted).

      Subsequently, in Commonwealth v. Garcia, 859 A.2d 820 (Pa.Super.

2004), this Court confronted the constitutionality of a traffic stop based upon

suspected violations of § 3309(1) and § 3301 (driving on the right side of the

roadway) by synthesizing into a manageable standard the fact-sensitive

principles that the High Court addressed in Gleason and we discussed in

Lindblom, in relation to careless driving. Noting the de minimis nature of the

safety hazards alleged by the interdicting police officer in that case, we

reasoned,

      a close reading of the Gleason rationale, combined with careful
      attention to the facts of that case, lead us to conclude that where
      a vehicle is driven outside the lane of traffic for just a momentary
      period of time and in a minor manner, a traffic stop is
      unwarranted. Thus, appellant Gleason’s crossing of the berm line
      on two occasions for a second or two were inadequate to support
      a traffic stop, while appellant Lindblom’s repeated weaving within
      his lane, coupled with his driving over the center double lines and
      the berm line four or five times, provided probable cause to
      support a lawful traffic stop [for careless driving].

             Applying this “momentary and minor” standard to the facts
      of this case, we find that probable cause is lacking. Officer DeHoff
      observed [Garcia] drive over the right berm line of the road just

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      two times. Each time the maneuver was in response to another
      car coming toward appellant in the opposite lane of traffic. The
      conduct took place within a very short time period; Officer DeHoff
      observed appellant for only two blocks before making the stop.

Id. at 823 (footnote omitted).

      While the Garcia Court applied the “momentary and minor” standard to

its review of a traffic stop effectuated due to the driver’s failure to stay within

the designated lane of traffic, that court’s discussion of our holding in

Lindblom confirms that comparable safety-related principles exist where a

stop is initiated based upon alleged careless driving. Id. at 823; see also

Gezovich, supra at 302 (“The evidence simply does not establish . . .

heightened type of carelessness necessary to sustain a conviction for careless

driving.”).

      Instantly, I believe that Officer Marinez’s allegations are insufficient

insofar as there is no evidence that Rogers posed a threat to people or

property when he performed the burnout. Thus, through the prism of Garcia,

I view the facts adduced at the suppression hearing as aligning closer to the

facts underlying the Supreme Court’s decision in Gleason rather than our

holding in Lindblom.

      First, unlike Lindblom, Appellant did not engage in persistent erratic

driving over a significant distance and there is no indication that Rogers placed

his own safety at risk.     He performed the burnout while stopped at the

intersection and the Jeep remained within in the designated lane of travel.

N.T., 1/9/19, at 20. Indeed, Officer Marinez did not testify that the car moved

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while Rogers was performing the maneuver. Id. Then, after spinning his

wheels at an empty intersection, Rogers quickly executed a right-hand turn,

and drove away. Id. at 8, 20.

     In this vein, no evidence exists to support the majority’s finding that

Rogers performed a “prolonged burnout” and a “sudden acceleration.” See

Majority Memorandum at 4-5, 7-8.       In actuality, Officer Marinez did not

pinpoint the length of the burnout. He simply testified that, although he was

uncertain of Rogers’s intent, he believed that the maneuver was intentional

due to its duration. N.T., 10/29/18, at 19. Nothing suggests that Rogers

extended the maneuver beyond what was necessary for Officer Marinez to

surmise an intent.    Similarly, notwithstanding my esteemed colleagues’

characterization of the burnout and acceleration into the intersection as one

contemporaneous action, Officer Marinez not only neglected to indicate that

the vehicle moved while Rogers performed the maneuver, but he also

explained that Rogers was required to apply the vehicle’s brake in order to

accomplish it. Hence, while there was testimony about a potential for loss of

control generally and a statement that Rogers made the turn at an unidentified

“high rate of speed,” the certified record bears out that Rogers’s vehicle did

not fishtail or accelerate forward when the burnout occurred. Id. at 20.

     Finally, I highlight that Officer Marinez made his determination of

Rogers’s speed, which the trial court did not accept as a contributing factor,

while viewing Rogers’s vehicle in a rearview mirror from one block away during


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a torrential downpour. Id. at 5, 16, 18. Indeed, on cross-examination, Officer

Marinez conceded that, while the vehicle appeared to be moving fast from his

vantage point, he could not determine how fast Rogers was going when he

made the right-hand turn. Id. at 20-21. As noted, the trial court ultimately

rejected the inference that the burnout involved dangerous speeds.

Specifically, the court found “there was no evidence presented that . . .

[Rogers] was driving at a higher rate of speed because of the ‘burnout.’”

Findings of Fact and Conclusions of Law, 12/7/18, at 4.

      In sum, for the reasons explained supra, I agree with the trial court’s

conclusion that Officer Marinez’s observations did not support the inference

that Rogers’s conduct violated the Vehicle Code. See Gleason, supra, at 898

(insufficient evidence to support probable cause determination for traffic stop

where evidence did not demonstrate driving created safety hazard).        As I

believe that the certified record supports the suppression court’s factual

findings, and because the inferences that the court drew from those facts are

reasonable, I would not disturb the court’s conclusion.

      I respectfully dissent.




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