J-S26038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILIP RANDALL ECKMAN                      :
                                               :
                       Appellant               :   No. 3774 EDA 2017

           Appeal from the Judgment of Sentence October 17, 2017
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0002004-2017


BEFORE:       BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 23, 2018

       Appellant Philip Randall Eckman appeals from the judgment of sentence

entered in the Court of Common Pleas of Chester County on October 17, 2017,

following his non-jury conviction1 of driving under the influence of alcohol

(general impairment)2 and related offenses.3 Following a careful review, we

affirm.

       The trial court set forth the relevant facts and procedural history herein

as follows:

            On January 28, 2017, Appellant was stopped by Kennett
       Township Police Officer Jonathan Ortiz, after Officer Ortiz
____________________________________________


1 Appellant entered a guilty plea on August 22, 2017, to 75 Pa.C.S.A. §
3802(a)(1); however, on August 30, 2017, he filed his Motion for Withdrawal
of Guilty Plea Pursuant to Pa.R.Crim.P. Rule 591, and he later proceeded to a
stipulated fact trial.
2 75 Pa.C.S.A. § 3802(a)(1).
3 Appellant was cited for violating 75 Pa.C.S.A. §§ 3301(a) (driving on right

side of roadway) and 3334(b) (turning movements and required signals).
____________________________________
* Former Justice specially assigned to the Superior Court.
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      observed Appellant driving northbound in the southbound lane of
      Greenwood Road. On June 30, 2017, Appellant was charged with
      driving under the influence of alcohol, failure to drive on the right
      side of the roadway and failure to give an appropriate signal of
      intention to turn left or right. On July 12, 2017, Appellant filed a
      motion to suppress, claiming that the original stop of his vehicle
      on January 28, 2017 was illegal. We held a hearing on Appellant's
      motion on August 22, 2017, after which we denied his motion to
      suppress. On October 18, 2017, after a stipulated fact trial, we
      found Appellant guilty of one count of driving under the influence
      of alcohol, 2nd offense, 3rd tier, 75 Pa. C.S.A. § 3802, and
      sentenced him to serve fifteen days in prison.
                                         ***
          At the suppression hearing held on August 22, 2017, the
      Commonwealth presented the testimony of Officer Jonathan Ortiz
      of the Kennett Township Police Department. Officer Ortiz testified
      that he was on routine patrol on the evening of January 28, 2017,
      in full uniform and driving a marked police vehicle. At
      approximately 11:09 p.m., as Officer Ortiz was driving
      southbound in the 400 Block of Greenwood Road, he observed
      Appellant's vehicle driving towards him in the wrong lane of traffic.
      N.T. 8/22/17, pp. 6, 9. Officer Ortiz testified that he was forced to
      come to nearly a complete stop in order to avoid a collision with
      Appellant. N.T. 8/22/17, p. 17. Officer Ortiz testified that
      Appellant's vehicle maneuvered around the Officer's patrol car,
      and then returned to driving in the wrong lane of travel. N.T.
      8/22/17, p. 6. Officer Ortiz made a U-turn to follow Appellant, and
      observed that Appellant was still driving in the wrong lane of
      traffic. N.T. 8/22/17, p. 7. When Officer Ortiz activated his
      emergency lights to initiate a traffic stop, Appellant failed to stop
      his car in response, and only responded after Officer Ortiz had
      activated his siren. N.T. 8/22/17, pp. 12-15, 20.

Trial Court Opinion, filed 12/15/17, at 1-3.

      Appellant filed a timely notice of appeal on November 14, 2017. On

November 20, 2017, the trial court directed Appellant to file a concise

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

and Appellant complied on December 7, 2017. In his appellate brief, Appellant

presents the following Statement of Question Involved:


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            Did the trial court err in denying Appellant’s motion to
      suppress evidence recovered following an automobile stop where
      the Commonwealth’s own video evidence failed to establish
      probable cause that Appellant had committed a violation of the
      Motor Vehicle Code and the officer’s testimony was not sufficient
      to establish that such a violation had occurred?

Brief for Appellant at 2.

      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,
      as here, 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. McAdoo, 46 A.3d 781, 783–84 (Pa.Super. 2012), appeal

denied, 619 Pa. 721, 65 A.3d 413 (2013)(quoting Commonwealth v.

Hoppert, 39 A.3d 358, 361–62 (Pa.Super. 2012)).

      Herein, while Appellant states it is uncontested that Officer Ortiz stopped

Appellant’s vehicle on his belief that Appellant had violated 75 Pa.C.S.A. §

3309(1), he avers the video from Officer Ortiz’s dashboard video camera,

admitted into evidence at the suppression hearing, contradicts the testimony

the officer provided at that time. Brief for Appellant at 12, 18. Appellant

reasons that because there had been no investigatory purpose to the traffic

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stop, Officer Ortiz needed probable cause to believe Appellant had committed

a violation of the Motor Vehicle Code before he followed Appellant. Id. at 14.4

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

banc), appeal denied, 25 A.3d 327 (Pa. 2011)). Appellant also claims that the

suppression court’s findings are not supported by the record because it

accepted Officer Ortiz’s “conclusory testimony in spite of its obvious conflict

with the objective video evidence presented” and unlike the trial court in

Feczko, failed to make an effort to synthesize the evidence. Id. at 15. In

the alternative, Appellant concludes that the lack of evidence presented by

the Commonwealth dictates that Officer Ortiz’s testimony did not constitute

“specific and articulated facts” that would support a finding of reasonable

suspicion, were that the applicable standard according to which he was

authorized to stop Appellant’s vehicle. Id. at 20.

       In considering the present case, we must first determine whether Officer

Ortiz needed probable cause or reasonable suspicion to stop Appellant’s

vehicle.   In Commonwealth v. Haines, 166 A.3d 449 (Pa.Super. 2017),

appeal denied, ___Pa. ____, 176 A.3d 233 (2017) a panel of this Court

reiterated the parameters for this determination as follows:

       [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
____________________________________________


4The Commonwealth also posits Officer Ortiz needed probable cause to stop
Appellant’s vehicle. Commonwealth’s Brief at 7.

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      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.

Id. at 455 (quoting Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.

Super. 2015)).

      In Feczko, supra, this Court held that a police officer must have

probable cause to support a vehicle stop where the officer's investigation

subsequent to the stop serves no “investigatory purpose relevant to the

suspected [Vehicle Code] violation.” Id. at 1291. Therein, the police officer

several times observed the defendant's vehicle cross over the double yellow

median line and the fog line. Id. at 1286. During the ensuing vehicle stop, the

officer smelled alcohol on the defendant's breath; however, the officer did not

testify that the stop was based on suspicion of DUI. Id.

      The defendant ultimately was convicted of DUI and a Vehicle Code

violation, and he argued on appeal that the vehicle stop was illegal. This Court

noted the distinction between the investigative potential of a vehicle stop

based on a reasonable suspicion of DUI as compared to other suspected

violations of the vehicle code. Id. at 1288-89 (citing Commonwealth v.

Sands, 887 A.2d 261, 270 (Pa. Super. 2005)). Whereas a vehicle stop for

suspected DUI may lead to further incriminating evidence such as an odor of

alcohol or slurred speech, a stop for suspected speeding is unlikely to lead to

further evidence relevant to that offense. See id. Therefore, we held that:




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       a vehicle stop based solely on offenses not “investigable” cannot
       be justified by a mere reasonable suspicion, because the purposes
       of a Terry[5] stop do not exist-maintaining the status quo while
       investigating is inapplicable where there is nothing further to
       investigate. An officer must have probable cause to make a
       constitutional vehicle stop for such offenses.

Feczko, supra at 1290 (quoting Commonwealth v. Chase, 599 Pa. 80, 94,

960 A.2d 108, 116 (2008)). See also Commonwealth v. Enick, 70 A.3d

843, 846 (Pa.Super. 2013) (finding a police officer has probable cause to

conduct a vehicle stop for a violation of 75 Pa.C.S.A. § 33016 after observing

the vehicle cross the double yellow line a single time).

____________________________________________


5 Terry v. Ohio, 392 US. 1 (1968).
6 Section 3301 of the Vehicle Code entitled Driving on right side of roadway
instructs, in relevant part:

       § 3301. Driving on right side of roadway

       (a) General rule.—Upon all roadways of sufficient width, a
       vehicle shall be driven upon the right half of the roadway except
       as follows:
       (1) When overtaking and passing another vehicle proceeding in
       the same direction where permitted by the rules governing such
       movement.
       (2) When an obstruction exists making it necessary to drive to the
       left of the center of the roadway, provided the driver yields the
       right-of-way to all vehicles traveling in the proper direction upon
       the unobstructed portion of the roadway within such distance as
       to constitute a hazard.
       (3) When and where official traffic-control devices are in place
       designating a lane or lanes to the left side of the center of the
       roadway for the movement indicated by the devices.
       (4) Upon a roadway restricted to one-way traffic.
       (5) When making a left turn as provided in sections 3322 (relating
       to vehicle turning left) and 3331 (relating to required position and
       method of turning).



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       In this case, relying upon Feczko, the suppression court reasoned that

Officer Ortiz possessed both reasonable suspicion and probable cause to

believe Appellant was in violation of the Vehicle code to justify the vehicle

stop. Officer Ortiz stopped Appellant’s vehicle because of his driving in the

opposite lane of travel; therefore, the officer suspected Appellant committed

a violation of 75 Pa.C.S.A. § 3301(a)(5), which mandates “a vehicle shall be

driven upon the right half of the roadway except ... [w]hen making a left turn

as provided in sections 3322 (relating to vehicle turning left) and 3331 (related

to required position and method of turning).” Because it was not necessary

to stop Appellant’s vehicle to determine whether he violated Section 3301(a),

we find Officer Ortiz needed to possess probable cause that a violation

occurred in order to stop Appellant. Salter, 121 A.3d at 993; Enick, 70 A.3d

at 846 (police officer needed probable cause to stop vehicle for suspected

violation of Section 3301, because stop would serve no investigatory

purpose).

       “The police have probable cause where the facts and circumstances

within the officer's knowledge are sufficient to warrant a person of reasonable



____________________________________________


       (6) In accordance with section 3303(a)(3) (relating to overtaking
       vehicle on the left).

75 Pa.C.S.A. § 3301(a).




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caution in the belief that an offense has been or is being committed. We

evaluate probable cause by considering all relevant facts under a totality of

circumstances analysis.” Commonwealth v. Hernandez, 594 Pa. 319, 335,

935 A.2d 1275, 1284 (2007) (citations and quotation marks omitted).

“[P]robable cause does not require certainty, but rather exists when

criminality is one reasonable inference, not necessarily even the most likely

inference.”   Salter, supra, 121 A.3d 987, 994 (Pa.Super. 2015) (citation

omitted).

      At the suppression hearing, Appellant sought to discredit Officer Ortiz’s

testimony with footage from the Motor Vehicle Recording System (MVR) of

the officer’s vehicle. Officer Ortiz testified that as he was traveling southbound

in the 400 Block of Greenwood Road, he observed a pair of headlights

approaching in his lane of travel. He explained that as he got closer, “the

vehicle maneuvered around [his] car into the northbound lane, and as [he]

looked in [his] rearview mirror [he] observed it move[d] back into the

southbound lane. [He] conducted a U-turn, and still observed the vehicle still

traveling in the southbound lane, and then it weaved back into the northbound

lane.” N.T., 8/22/17, at 6-7. Officer Ortiz described the road as a two-lane

“back road” divided by a double yellow line. Officer Ortiz stated that video

taken from the MVR accurately depicted “some of the events” he observed

that evening. Id. at 10.




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      The MVR was played for Officer Ortiz and periodically paused so that he

could answer questions posed by counsel as well as those by the suppression

court with regard thereto. Officer Ortiz agreed that another vehicle passed

his police car before Appellant’s. Id. at 11. Upon observing Appellant in the

wrong lane of travel, Officer Ortiz immediately made a U-Turn and began

following Appellant. Id. at 13, 17. Officer Ortiz observed no obstructions in

the roadway that would have necessitated Appellant’s moving in the opposing

lane of travel. Id. at 20.

      Officer Ortiz activated his emergency lights and sounded his siren

several times, although Appellant did not pull off the road despite several clear

places in which to do so. Id. at 14. As Appellant continued driving, his left

tire drove on and slightly over the double yellow times several times. Id. at

14-15.   Prior to the time in which Appellant ultimately pulled into the

Greenwood parking lot, he failed to use his turn signal. Id. at 15.

      Officer Ortiz explained he could see the headlights more clearly in his

lane of travel than they appeared on the MVR due to the effect of what the

Commonwealth called “lens flare” thereon.         Id.   The suppression court

specifically asked whether what Officer Ortiz was able to observe with his eyes

was more or less clear than that which is depicted on the MVR, to which the

officer responded his vision was clearer than the recording. Id. at 16. The

following exchange ensued:

           The Court: How do you know he was in your lane of travel?
      I mean, I can’t discern that from looking at the video because the

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      headlights are glaring, and I can’t tell which lane he’s in. How
      could you tell which lane he was in?
             [Officer Ortiz]: Because my eyes didn’t receive the glare
      the same as the windshield, the windshield and the camera glare
      off the headlights.
             The Court: But you’re sure he was in your lane of travel?
             [Officer Ortiz]: Yes. You can actually see me slow down
      which is the reason why I almost came to a complete stop.
             The Court: In order to avoid what?
             [Officer Ortiz]: In order to avoid a collision.

Id. at 16-17.

      Officer Ortiz explained that the MVR, a straightforward facing camera,

does not depict what he was able to see- namely, that when Appellant’s

vehicle approached his, it was in the southbound lane traveling northbound,

which is an illegal maneuver. Id. at 18. The Officer witnessed this before he

activated his emergency lights, and at the time he did so, he had observed

two violations of the vehicle code. Id. at 19. In addition, Appellant did not

pull over immediately upon seeing the emergency lights. Id. at 20.

      The suppression court commented that due to the “glaring lights,” it was

unable to determine from the video in which lane Appellant was traveling as

he approached Officer Ortiz “until it got very close and actually passed the

police officer.”   Id. at 31.   Nevertheless, it stressed that Officer Ortiz had

testified that Appellant’s vehicle was in the wrong lane as it approached his

police car. Id. at 32. The suppression court further observed that the video

showed that after Officer Ortiz turned around, the tires of Appellant’s vehicle

momentarily crossed the center line “once or twice.”          Id. at 34.    The

suppression court agreed with defense counsel that due to the glaring lights

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depicted thereon, the MVR did not establish a vehicle code violation, but the

officer’s testimony did, were it to find that testimony to be credible.

      At the end of the hearing, the suppression court did, in fact, find Officer

Ortiz to be credible and applying the relevant law to the facts of this case

denied Appellant’s suppression motion. Id. at 32-33, 36.       The suppression

court reiterated Officer Ortiz had testified “his vision of what occurred was

better than what can be seen on the video” and that “the video showed that

the police officer turned around almost immediately after [Appellant’s] vehicle

passed, him which corroborates the officer’s statement and testimony that he

believed that [Appellant] was traveling in the wrong lane of traffic for the

direction that he was heading.”   Id. at 35-36.

      In its Rule 1925(a) Opinion, the court further explained:

      We credited Officer Ortiz’s testimony that Appellant’s vehicle was
      driving in the wrong lane of travel on the evening of January 28,
      2017. Accordingly, we found that the stop of Appellant’s vehicle
      was permissible pursuant to section 6308(b) of the Motor Vehicle
      Code, was supported by reasonable suspicion and by probable
      cause, and was legal. We can conceive of no more blatant
      example of a Motor Vehicle Code violation that driving one’s
      vehicle, over a double yellow line, in the wrong lane of traffic.

Trial Court Opinion, 12/15/17, at 3.

      After reviewing the MVR, the testimony presented at the suppression

hearing and the trial court’s opinion, we find both that the evidence supports

the court’s factual findings and there is no mistake in its legal conclusion. We

disagree that the video in question so clearly contradicts Officer Ortiz’s

testimony that he initially observed Appellant traveling in the opposing lane

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of travel to the extent that we would be compelled to reject the trial court’s

credibility determination. Compare Commonwealth v. Griffin, 116 A.3d

1139, 1143 (Pa.Super. 2015) (reversing the trial court’s denial of suppression

on the basis that an officer’s testimony alleging the lawfulness of the at-issue

seizure of contraband was clearly contradicted by video evidence stating

“[t]his is one of those rare cases where a dash cam video, which was made a

part of the certified record, can contradict a trial court’s factual finding often

based on its credibility determinations.”).    In fact, our review of the MVR

confirms this testimony.

      While the glare cast from Appellant’s headlights does limit the ability to

discern precisely the location of Appellant’s vehicle as it approached Officer

Ortiz’s, the MVR clearly does show Officer Ortiz was forced to take the evasive

action of slowing down as Appellant advanced and that he promptly turned

around to follow Appellant. Upon considering this footage coupled with Officer

Ortiz’s testimony, the suppression court deemed the officer to be credible.

Credibility determinations are within the sole province of the trial court

Commonwealth v. Gallagher, 896 A.2d 583, 584 (Pa.Super. 2006).

Because the trial court’s factual findings are supported by the record, “we are

bound by those findings.” Commonwealth v. Ibrahim, 127 A.3d 819, 822

(Pa.Super. 2015), appeal denied, 635 Pa. 771, 138 A.3d 3 (2016). Therefore,

we find no basis upon which to disturb the suppression court’s order and that

it did not err in denying Appellant’s motion to suppress because the police had


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probable cause to stop Appellant’s vehicle. See Commonwealth v. Holton,

906 A.2d 1246, 1249 (Pa.Super. 2006), appeal denied, 591 Pa. 697, 918 A.2d

743 (2007). For the foregoing reasons, we hold the traffic stop of Appellant’s

vehicle was legal and affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/18




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