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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

AARON HENRY SIMS,

                        Appellant                   No. 3212 EDA 2014


        Appeal from the Judgment of Sentence November 14, 2014
          In the Court of Common Pleas of Montgomery County
           Criminal Division at No(s): CP-46-CR-0006046-2013


BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 24, 2015

      Appellant, Aaron Henry Sims, appeals from the judgment of sentence

entered following his convictions of three counts of driving under the

influence (“DUI”). We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            By way of background, Officer James Gibbas (“Officer
      Gibbas”) currently works for the Towamencin Township Police
      Department. Officer Gibbas has made over fifty Driving Under
      the Influence (“DUI”) arrests during his five year tenure with the
      Towamencin Township Police Department. Additionally, Officer
      Gibbas has received police training on detecting signs of DUI
      driving.

            At approximately 2:00 a.m. on Friday, May 17, 2013,
      Officer Gibbas was on patrol duty in a fully marked police car at
      the intersection of Forty Foot Road and Sumneytown Pike in
      Towamencin Township, Montgomery County, Pennsylvania. Due
      to the number of bars nearby, that intersection has a history of
      DUI arrests.     Officer Gibbas was conducting a selective
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     enforcement of the intersection for DUI drivers at a time when
     the bars were closing.

            While monitoring the intersection, Officer Gibbas observed
     Appellant driving a blue Ford Explorer, traveling southbound on
     Forty Foot Road. Officer Gibbas observed Appellant stop at a red
     light on Forty Foot Road and Sumneytown Pike. Officer Gibbas
     also observed a second vehicle (“Vehicle 2”) abruptly pull behind
     Appellant’s vehicle and stop at the red light. The stop was so
     abrupt that Officer Gibbas thought the second vehicle was going
     to crash into the rear end of Appellant’s vehicle. Thereafter,
     Officer Gibbas observed a third vehicle (“Vehicle 3”) pull up
     behind Vehicle 2 and stop at the red light.

           Based on Vehicle 2’s abrupt stop, Officer Gibbas decided to
     leave this monitoring site and follow the vehicles onto
     Sumneytown Pike once the light turned green. While Officer
     Gibbas was observing Vehicle 2 for DUI, he witnessed both
     Appellant’s vehicle and Vehicle 2 drift across the double yellow
     line and then drift back into [their] respective lane. Officer
     Gibbas also observed both vehicles cross over the fog line before
     returning back into their respective lane of travel.

            Officer Gibbas testified that he observed Appellant’s
     vehicle drift at least three times within a one mile area. He also
     testified that Appellant’s drifting was separate and apart from
     the second driver’s drifting. Officer Gibbas admitted that he
     made his observations of Appellant’s vehicle about six to seven
     car lengths away, with two other vehicles (Vehicle 2 and Vehicle
     3) between their vehicles.        Lastly, Officer Gibbas testified
     Appellant was otherwise compliant with all other traffic laws.

            Based on his observations of Appellant’s and Vehicle 2’s
     traffic violations, Officer Gibbas turned on his sirens to conduct a
     traffic stop of the vehicles. All three vehicles in front of Officer
     Gibbas pulled over in response to the sirens. Officer Gibbas
     radioed to Sergeant Wainwright and Officer Mahaffey for
     assistance with the traffic stop. Vehicle 3 was investigated by
     Sergeant Wainwright and Officer Mahaffey and eventually [was]
     permitted to leave.

           Both parties stipulated at the hearing that Sergeant
     Wainwright and Officer Mahaffey assisted Officer Gibbas with the
     investigatory detention of both Appellant’s vehicle and Vehicle 2.

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       Specifically, both parties stipulated that Sergeant Wainwright
       asked Appellant a number of cursory questions, including where
       he was coming from. In response, Appellant admitted that he
       was coming from Margaritas Restaurant where he consumed two
       beers.    Sergeant Wainwright conducted filed sobriety tests,
       which led to Appellant’s arrest for DUI.

             After Appellant was arrested, Officer Mahaffrey conducted
       an investigatory search of his car, discovering small zip lock bags
       of marijuana in the console that were seized for evidence.
       Appellant was taken to Lansdale Hospital, where he submitted to
       a chemical blood test.

             On September 16, 2014, this court issued an order
       denying Appellant’s Motion to Suppress.[1] A bench trial was
       held on November 14, 2014, where Appellant was found guilty of
       three counts of DUI1[2]. This appeal followed.
              1
                  75 Pa.C.S. § 3802(b), § 3802(a)(1) and §3802(d)(2).

Trial Court Opinion, 2/10/15, at 1-3.            Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

       1.   Did the trial court err in denying Appellant’s Motion to
       Suppress any and all evidence used against him at trial?

Appellant’s Brief at 6.

       Appellant argues that Officer Gibbas failed to articulate with any

specificity facts that would give him reasonable suspicion to stop Appellant.

Appellant’s Brief at 10. Instead, Appellant asserts that the testimony was
____________________________________________


1
  Appellant filed a motion to suppress “any and all items of evidence seized
by law enforcement officers.” Motion to Suppress, 1/21/14, at 2.
2
  Appellant was sentenced to ninety days to five years of imprisonment, the
costs of prosecution, and a $1,500.00 fine.



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vague and included no evidence as to the severity of the drifting and

uncertainty as to how many times it occurred.          Id.   Appellant further

maintains that Officer Gibbas made assumptions based on prior DUI vehicle

stops and failed to articulate facts establishing reasonable suspicion. Id. at

13. Thus, it is Appellant’s position that the trial court erred by not granting

Appellant’s motion to suppress any and all evidence used against him at

trial. Id.

      “When reviewing the propriety of a suppression order, an appellate

court is required to determine whether the record supports the suppression

court’s factual findings and whether the inferences and legal conclusions

drawn by the suppression court from those findings are appropriate.”

Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc).

“Where the Commonwealth prevailed on the suppression motion, we

consider only the evidence of the prosecution and so much of the defense

that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589,

591 (Pa. Super. 2010).

      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented.

Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en

banc).   To the extent that the suppression court’s factual findings are

supported by the record, “we are bound by those facts and will only reverse

if the legal conclusions are in error.”    Cooper, 994 A.2d at 591.      As an

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appellate court, it is our duty “to determine if the suppression court properly

applied the law to the facts.”         Commonwealth v. Maldonado, 14 A.3d

907, 910 (Pa. Super. 2011).          Moreover, we note that our scope of review

from a suppression ruling is limited to the evidentiary record that was

created at the suppression hearing. In re L.J., 79 A.3d 1073, 1086-1087

(Pa. 2013).3

       Regarding vehicle stops, the Motor Vehicle Code provides as follows:

       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).

       “The threshold justification for a vehicle stop is reasonable suspicion.”

Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa. Super. 2007). The

____________________________________________


3
    In L.J., our Supreme Court held that our scope of review from a
suppression ruling is limited to the evidentiary record that was created at
the suppression hearing. L.J., 79 A.3d at 1087. Prior to L.J., this Court
routinely held that, when reviewing a suppression court’s ruling, our scope of
review included “the evidence presented both at the suppression hearing
and at trial.” Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa.
Super. 2011) (quoting Commonwealth v. Chacko, 459 A.2d 311 (Pa.
1983)). L.J. thus narrowed our scope of review of suppression court rulings
to the evidence presented at the suppression hearing.           In this case,
Appellant’s suppression hearing was held after L.J. was decided. Therefore,
the procedural rule announced in L.J. applies to the case at bar.



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police may stop a motorist on reasonable suspicion of DUI.          75 Pa.C.S.

§ 6308(b); Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008)

(“Extensive case law supports the conclusion [that] a vehicle stop for DUI

may be based on reasonable suspicion, as a post-stop investigation is

normally feasible.”); Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.

Super. 2005) (“[A] suspected violation for DUI is in fact a scenario where

further investigation almost invariably leads to the most incriminating type

of evidence . . . This type of evidence can only be obtained by a stop and

investigation”).   “In order to determine whether the police officer had

reasonable suspicion, the totality of the circumstances must be considered.

In making this determination, [a court] must give due weight . . . to the

specific reasonable inferences [the police officer] is entitled to draw from the

facts in light of his experience.” Commonwealth v. Hilliar, 943 A.2d 984,

990 (Pa. Super. 2008). “[T]he totality of the circumstances test does not

limit [an] inquiry to an examination of only those facts that clearly indicate

criminal conduct. Rather, even a combination of innocent facts, when taken

together, may warrant further investigation by the police officer.”         Id.

Further, our Supreme Court has stated, “[W]hen the existence of reasonable

suspicion combines with the expectation that the stop will allow light to be

shed on the relevant matters, the stop is not unconstitutional.” Chase, 960

A.2d at 115.




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      This Court has ruled that erratic driving alone can impart a reasonable

suspicion of DUI. See Commonwealth v. Hughes, 908 A.2d 924, 926 (Pa.

Super. 2006) (reasonable suspicion to stop vehicle for DUI existed where, in

early morning hours, police observed vehicle swerving between left and right

lanes); Sands, 887 A.2d at 270 (reasonable suspicion to stop vehicle for

DUI existed where, in the early morning hours, police observed vehicle drift

across a roadway fog line and then slowly drift back into lane).

      The provisions of the DUI statutes with which Appellant was charged

and convicted provide as follows:

      § 3802. Driving under influence of alcohol or controlled
      substance

      (a) General impairment.—

            (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.

                                     * * *

      (b) High rate of alcohol.--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
      alcohol concentration in the individual’s blood or breath is at
      least 0.10% but less than 0.16% within two hours after the
      individual has driven, operated or been in actual physical control
      of the movement of the vehicle.

                                    * * *




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     (d) Controlled substances.--An individual may not drive,
     operate or be in actual physical control of the movement of a
     vehicle under any of the following circumstances:

                                   * * *

           (2) The individual is under the influence of a drug or
           combination of drugs to a degree which impairs the
           individual’s ability to safely drive, operate or be in
           actual physical control of the movement of the
           vehicle.

75 Pa.C.S § 3802 (a)(1), (b), (d)(2).

     In addressing Appellant’s issue, the trial court provided the following

analysis and conclusion:

           In [the] instant case, Officer Gibbas testified to specific
     and articulable facts that taken together create a reasonable
     suspicion that [Appellant] was DUI. . . . [I]t [was] two o’clock in
     the morning on a Friday, the time when bars close.
     Officer Gibbas was conducting a selective enforcement at the
     intersection of Forty Foot Road and Sumneytown Pike for
     possible DUI drivers. The intersection is an area where Officer
     Gibbas, as an experienced officer, knows its history of DUI
     arrests.    While monitoring the intersection, Officer Gibbas
     observed three vehicles stop behind each other at a red light.
     Vehicle 2’s stop was so abrupt that Officer Gibbas thought
     Vehicle 2 was going to crash into [Appellant’s] vehicle. Based on
     the second driver’s abrupt stop, Officer Gibbas followed the three
     vehicles, whereby he witnessed [Appellant’s] vehicle drift across
     the double yellow line as well as the fog line at least three times
     in one mile.

           Based on the totality of circumstances in this case,
     [Appellant’s] drifting heightened the implication that he could be
     DUI. . . . Officer Gibbas conducted a traffic stop of [Appellant’s]
     vehicle for investigatory purposes. This Court concludes that
     Officer Gibbas possessed reasonable suspicion based on his
     experience with DUI arrests, his training with detecting DUI
     signs and his specific articulable observations that [Appellant]
     committed violations of the Motor Vehicle Code. Thus, the stop
     of [Appellant’s] vehicle was lawful.

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Trial Court Opinion, 2/10/15, at 7-8.

      The trial court’s summation of evidence is supported by the record.

Officer Gibbas was patrolling in the early morning hours at an intersection

known for its history of DUI arrests. N.T., 7/21/14, at 8-9. Officer Gibbas

provided the following testimony regarding Appellant’s erratic driving:

      [Officer Gibbas]: I was focused on – initially focused on the
      second vehicle that was in line. He is the one that made the
      abrupt stop. While watching that vehicle I also noticed that both
      that one and [Appellant’s vehicle] in front of it were drifting over
      the double yellow line. I saw them drift over the line and then
      back into the respective lane and then also cross over the fog
      line before returning back to their lane of travel.

      [Counsel]: And how many times specifically           did you see
      [Appellant’s] vehicle drift?

      [Officer Gibbas]: I do not recall exactly, but between Forty Foot
      Road and Troxel Road I would say it was approximately three
      times just on my own personal – the way that I work I don’t stop
      vehicles unless I see them, you know, cross lines at least three
      times.

      [Counsel]: And how far is that between these two areas?

      [Officer Gibbas]: Approximately one mile.

Id. at 10-11. Officer Gibbas clarified that the two vehicles in front of him

did not drift in tandem, but drifted across the lines independently of one

another. Id. at 16-17. Officer Gibbas had a clear view of the two drifting

vehicles, including Appellant’s, that were in front of him. Id. at 19.

      Given the totality of circumstances, Officer Gibbas had reasonable

suspicion that Appellant was driving under the influence.      As a result, the




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stop of Appellant’s vehicle was lawful. Accordingly, the trial court did not err

in denying Appellant’s motion to suppress.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




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