J-S60034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DOMINIC SHERIDAN,

                            Appellant               No. 434 EDA 2015


           Appeal from the Judgment of Sentence January 21, 2015
            In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0006369-2012


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED December 18, 2015

       Dominic Sheridan appeals from the judgment of sentence imposed on

January 21, 2015, in the Court of Common Pleas of Montgomery County. On

the same day, at the conclusion of a bench trial, the court convicted

Sheridan of two counts of driving under the influence (“DUI”), 1 and one

count of disregarding a traffic lane.2 The court sentenced Sheridan to a term

of 30 days to six months in county prison with respect to the Section




____________________________________________


1
   75 Pa.C.S. §§ 3802(a)(1) (general impairment) (second offense) and
3802(b) (high rate of alcohol) (second offense).
2
    75 Pa.C.S. § 3309.
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3802(b) DUI offense.3        On appeal, Sheridan contends the arresting officer

lacked probable cause to stop his car on the roadway, and consequently, the

trial court erred by refusing to suppress all evidence arising from the traffic

stop. After a thorough review of the submissions by the parties, the certified

record, and relevant law, we affirm.

       The trial court set forth the facts and procedural history as follows:

              On March 18, 2012 at approximately 2:45 a.m.,
       Pennsylvania State Trooper Brendan Shearn observed a white
       Ford Explorer, driven by [Sheridan], traveling west on Interstate
       76. While driving behind [Sheridan], Trooper Shearn observed
       the vehicle drift from the right lane into the left lane and then
       drift back. Trooper Shearn observed similar maneuvers three
       more times in quick succession.         Trooper Shearn credibly
       testified that there were no obstructions or obstacles in the
       roadway to warrant evasive movement.

               Trooper Shearn followed [Sheridan] for five miles after
       initially observing [Sheridan], believing an immediate traffic stop
       in the area was unsafe due to its narrow shoulder. [Sheridan]
       promptly pulled over when Trooper Shearn activated his
       emergency lights.      Upon speaking with [Sheridan], Trooper
       Shearn noticed signs of intoxication. [Sheridan] was placed
       under arrest after failing field sobriety tests and was
       subsequently charged with Driving Under the Influence (“DUI”)
       and Disregarding a Traffic Lane.

             On November 15, 2012, [Sheridan] filed a Motion to
       Suppress. A hearing was held on September 4, 2014 to decide
       [Sheridan]’s Motion to Suppress. On October 8, 2014, this Court
       denied the motion by way of a memorandum order.


____________________________________________


3
  The Section 3802(a)(1) crime merged with the Section 3802(b) offense for
sentencing purposes. The court imposed a fine with respect to the traffic
violation.



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            On January 21, 2015, a bench trial was held on this
       matter,   where   [Sheridan]   stipulated to all   of  the
       Commonwealth’s evidence. [Sheridan] was found guilty on all
       charges. This appeal followed.

Trial Court Opinion, 3/30/2015, at 1-2 (footnotes omitted).4

       In his sole issue on appeal, Sheridan claims the trial court erred in

failing to grant his motion to suppress because Trooper Shearn did not

possess probable cause to stop his vehicle for a violation of the Motor

Vehicle Code (“MVC”) under Section 3309(1).5         Sheridan’s Brief at 9.   In

support of his argument, Sheridan points to the following:

             Trooper Shearn testified that [Sheridan]’s vehicle went
       over the dotted white line on approximately four occasions. He
       conceded that it may have been fewer than four times.
____________________________________________


4
   On February 17, 2015, the trial court ordered Sheridan to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Sheridan filed a concise statement on March 6, 2015. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on March 30, 2015.
5
    The MVC provides, in relevant part:

       § 3309. Driving on roadways laned for traffic.

       Whenever any roadway has been divided into two or more
       clearly marked lanes for traffic the following rules in addition to
       all others not inconsistent therewith shall apply:

       (1) Driving within single lane. –

       A vehicle shall be driven as nearly as practicable entirely within a
       single lane and shall not be moved from the lane until the driver
       has first ascertained that the movement can be made with
       safety.

75 Pa.C.S. § 3309(1).



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      [Trooper] Shearn further testified that [Sheridan] was not
      speeding, he was not inconsistently accelerating or decelerating,
      there was no risk to other vehicles during the momentary
      crossings[.] Further, [Trooper] Shearn testified that after his
      observations, he followed [Sheridan] for close to one mile and
      did not observe any other Motor Vehicle Code Violations [besides
      a violation of Section 3309], not even after he turned on his
      dashcam. Since no other factors contributed to his decision to
      stop [Sheridan], Trooper Shearn lacked the requisite probable
      cause to stop [Sheridan] for a violation of the Motor Vehicle
      Code.

Id. at 13 (record citations omitted). Sheridan concludes: “Based upon [the

trooper’s] observations of [Sheridan]’s vehicle drifting over the dotted white

line maybe fewer than four times, Trooper Shearn’s testimony failed to

articulate probable cause of a Motor Vehicle Violation.” Id. at 14.

      We begin with the following:

      This Court’s well-settled standard of review of a denial of a
      motion to suppress evidence is as follows:

         [An appellate court’s] 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, [the appellate court is] bound by
         [those] 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 [] plenary review.

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      Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa.
      2010) (internal citations and quotation marks omitted).

Commonwealth v. Jones, 121 A.3d 524, 526-527 (Pa. Super. 2015).

Moreover, “[i]t is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given to their

testimony. The suppression court is free to believe all, some or none of the

evidence presented at the suppression hearing.”           Commonwealth v.

Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003), appeal denied, 847 A.2d

58 (Pa. 2004).

      With regard to an officer’s authority to stop a vehicle for an alleged

violation, the MVC provides:

      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). A panel of this Court has previously explained:

      [Section] 6308(b) requires only reasonable suspicion in support
      of a stop for the purpose of gathering information necessary to
      enforce    the   Vehicle    Code   violation.     However,     in
      Commonwealth v. Feczko, 2010 PA Super 239, 10 A.3d 1285,
      1291 (Pa. Super. 2010) (en banc), appeal denied, 611 Pa. 650,
      25 A.3d 327 (2011), 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.” In
      Feczko, the police officer observed the defendant’s vehicle cross
      over the double yellow median line and the fog line. Id. at

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     1286. During the ensuing vehicle stop, the officer noticed the
     scent of alcohol on the defendant's breath. Id. Importantly, the
     officer did not testify that the stop was based on suspicion of
     DUI. Id. The defendant was convicted of DUI and a motor
     vehicle code violation, and argued on appeal that the vehicle
     stop was illegal. Id. at 1287.

     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 Motor
     Vehicle Code.” Id. at 1289 (citing Commonwealth v. Sands,
     2005 PA Super 372, 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. Id. Therefore:

       [A] vehicle stop based solely on offenses not
       ‘investigatable’ cannot be justified by a mere reasonable
       suspicion, because the purposes of a Terry1 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.
          1
            Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.
          Ed. 2d 889 (1968).

     Id. at 1290 (quoting Commonwealth v. Chase, 599 Pa. 80,
     94, 960 A.2d 108, 116 (2008)).

        In Feczko, the police officer stopped the defendant’s vehicle
     solely based on the defendant’s failure to maintain a single lane
     in accordance with 75 Pa.C.S.A. § 3309. This Court held,
     therefore, that the vehicle stop could be constitutionally valid
     only if the officer 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 was in
     violation of some provision of the [Vehicle] Code.” Id. at 1291.
     We also held that the police officer’s observation of the
     defendant swerving over the double yellow median line and the
     fog line created probable cause to suspect a violation of § 3309.
     Id.


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Commonwealth v. Busser, 56 A.3d 419, 423 (Pa. Super. 2012), appeal

denied, 74 A.3d 125 (Pa. 2013).6

       Turning to the present matter, the record reveals the following: At the

September 4, 2014, suppression hearing, the arresting officer, Trooper

Shearn, testified he has received vehicle code enforcement and standardized

field sobriety test training, and has been a state police officer for seven

years, during which time he has encountered numerous individuals driving

under the influence of drugs and alcohol.        N.T., 9/4/2014, at 3-5.   With

respect to the underlying incident, Trooper Shearn stated that on March 18,

2012, he was patrolling the westbound lane of Interstate 76, when he

observed Sheridan’s vehicle cross over the center dotted line approximately

four times, and then go back to the right lane, in quick succession. Id. at 6,

9.7   The trooper indicated there were other cars on the road but very few

based on the time of night. Id. at 9. He stated there was no construction,

potholes, or other obstructions that would require evasive maneuvering. Id.

Trooper Shearn testified crossing the center dotted line is an MVC violation

____________________________________________


6
    We note, “Probable cause does not require certainty, but rather exists
when criminality is one reasonable inference, not necessarily even the most
likely inference.” Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa.
Super. 2004), appeal denied, 868 A.2d 1198 (Pa. 2005).

7
   The trooper specifically stated that for him “to consider a car crossing the
line it doesn’t just touch, it has to cross over the dotted line, … both tires
across the center dotted line.” Id. at 7.




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under Section 3309.           Id. at 10.       The trooper followed Sheridan for

approximately five miles until it was safe for him to activate his emergency

lights and siren,8 signaling to Sheridan to pull over. Id. at 10-11. Sheridan

complied and pulled onto the shoulder of the road. Id. at 11.

       Trooper Shearn stated that upon speaking with Sheridan, he noticed a

strong odor of an alcoholic beverage on the defendant’s breath and person.

Id. at 15. Furthermore, the trooper observed Sheridan to have bloodshot,

glassy eyes and slurred speech. Id. Trooper Shearn then asked Sheridan to

exit the car and perform standardized field sobriety tests, which the

defendant agreed to do. Id. at 16. The trooper testified, “[Sheridan] did

not perform the tests as instructed and based on my training, education and

experience[,] it was my opinion that he was incapable of safe driving and

placed him under arrest for DUI.” Id.

       On cross-examination, the trooper stated he did not observe Sheridan

speeding,    and    the   defendant      was   not   inconsistently   accelerating   or

decelerating while operating the vehicle. Id. at 19. Nevertheless, Trooper

Shearn indicated Sheridan was weaving within the lane but that is not an

MVC violation. Id.



____________________________________________


8
   The video dash camera on the trooper’s vehicle was turned on when he
activated the lights. The video, therefore, did not depict all five miles of the
monitoring.



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       Trooper Shearn also stated that while he could not recall from personal

memory how many times Sheridan crossed the dotted center line, his

written report from the stop provided that information. Id. at 20.

       In reviewing the testimony, the trial court found the following:

       Trooper Shearn testified that [Sheridan], while driving in the
       right lane, drifted into the left lane far enough so that both of his
       left tires crossed over the center dotted white line. Trooper
       Shearn further testified this happened three or four times in
       quick succession. This court finds that [Sheridan]’s observed
       behavior violates § 3309(1). Therefore, Trooper Shearn’s first-
       hand view of [Sheridan]’s violation gave him probable cause to
       stop [Sheridan].

Order Sur: Suppression, 10/8/2014, at 3.

       We agree with the court’s sound rationale.      As illustrated above, the

evidence established Trooper Shearn possessed probable cause to stop

Sheridan’s vehicle for an MVC violation under Section 3309(1), where the

trooper observed Sheridan cross over the dashed, white line multiple times

with both left-side tires and then quickly return to his lane.         See N.T.,

9/4/2014, at 9. As such, Sheridan failed to operate his vehicle “as nearly as

practicable entirely within a single lane” and prior to “first ascertain[ing] that

the movement c[ould] be made with safety.”             75 Pa.C.S. § 3309(1).9

____________________________________________


9
   We find the facts in this case substantially similar to the following cases
which have upheld the trial court’s finding that the police officer possessed
probable cause to stop the motorist: Feczko, supra (officer observed
appellant weaving within his lane, crossing the double yellow center line
twice, and drifting over the fog line); Commonwealth v. Cook, 865 A.2d
869, 874 (Pa. Super. 2004) (officer observed appellant’s vehicle for nearly
(Footnote Continued Next Page)


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Moreover, contrary to Sheridan’s argument that his actions were de minimis,

we reiterate that because the Commonwealth prevailed, “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.”    Jones, 121 A.3d at 526.             Accordingly, the trial court properly

denied Sheridan’s motion to suppress. Therefore, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




                       _______________________
(Footnote Continued)

one mile, during which the appellant’s vehicle crossed the fog line by one-
half of his vehicle width, then quickly jerked back into the lane of traffic);
Commonwealth v. Klopp, 863 A.2d 1211 (Pa. Super. 2004) (police officer
saw motorist weaved four times over one and one-half miles and each time,
the car crossed over double yellow or fog lines); Lindblom, supra (officer
observed defendant cross double center and berm lines four or five times
each).



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