J-A07005-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

SARAH BRETTON SCHROCK,

                        Appellant                      No. 679 WDA 2015


          Appeal from the Judgment of Sentence of April 9, 2015
            In the Court of Common Pleas of Somerset County
           Criminal Division at No(s): CP-56-CR-0000277-2014


BEFORE: BOWES, MUNDY AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 25, 2016

      Sarah Bretton Schrock appeals from the judgment of sentence of April

9, 2015, following her convictions for driving under the influence (“DUI”),

driving while license is suspended or revoked, and careless driving.      We

affirm.

      At approximately 2:25 a.m., on December 1, 2013, Pennsylvania State

Police Trooper Scott Kemerer observed a black Chevy Malibu traveling on

South Pleasant Avenue in Somerset, Pennsylvania.         Trooper Kemerer was

following the vehicle when it came to a red traffic signal at the intersection

of South Pleasant Avenue and East Main Street.          A CVS Pharmacy and

railroad crossing were located at this intersection.    While stopped directly

behind the vehicle, Trooper Kemerer ran its registration information through
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NCIC, which indicated that Appellant was a female and the registered owner

of the car. It also showed Appellant’s driver’s license was suspended due to

a prior DUI.

      From his position directly behind the vehicle, and with the aid of the

ambient light provided by the CVS Pharmacy and the illuminated railroad

crossing, Trooper Kemerer was able to observe the operator’s hair.

Specifically noting the length of the hair, the trooper believed that the driver

was female.

      Based on this observation and the information provided by the NCIC,

Trooper Kemerer initiated a traffic stop.      Appellant identified herself to

Trooper Kemerer, and following the stop, she was arrested for DUI after

displaying signs of intoxication.   Her blood was drawn within two hours of

the traffic stop, and subsequent chemical testing disclosed a blood alcohol

content of .177%.

      Based on this encounter, Appellant was charged with the above-

mentioned crimes.     Appellant filed a pretrial motion to suppress all the

evidence obtained as a result of the traffic stop, arguing that Trooper

Kemerer lacked the requisite reasonable suspicion necessary to initiate the

traffic stop.   A suppression hearing was conducted, and after hearing

argument on the motion, the trial court declined to suppress the evidence.

Following a nonjury trial on January 23, 2015, Appellant was found guilty on

all charges. This timely appeal followed.

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      The Appellant submits the following question for our consideration:

            Whether the court erred in finding that the police had
      reasonable suspicion to stop the Appellant’s vehicle where the
      stop was premised solely on information from NCIC that the
      owner of the vehicle was DUI suspended and that the owner was
      female, and where it was not possible to identify the operator as
      female given the lighting conditions and the fact that the officer’s
      view of the operator was obstructed by the vehicle’s headrest.

Appellant’s brief at 6 (unnecessary capitalization omitted).

      In cases involving a review of the denial of a defendant’s suppression

motion, we are subject to the following standard of review:

      [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.

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

(quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

(internal citations and quotation marks omitted).




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      Initially, we note the level of suspicion that a police officer must

possess before stopping a vehicle is codified at 75 Pa.C.S. § 6308(b), which

states:

      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.

Id.

      This Court clarified this general rule in Commonwealth v. Feczko, 10

A.3d 1285 (Pa.Super. 2010) (en banc). In Feczko, this Court determined

that the language of Section 6308(b), as interpreted by our Supreme Court,

establishes that reasonable suspicion is required to effectuate a traffic stop

where the stop is based on suspicion of criminal activity or a suspected

violation of the Motor Vehicle Code that requires additional investigation.

Id. at 1291.

      The Pennsylvania Supreme Court defines “reasonable suspicion” as

follows:

      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by the police and its degree of
      reliability in the totality of the circumstances. In order to justify
      the seizure, a police officer must be able to point to ‘specific and
      articulable facts’ leading him to suspect criminality is afoot.”




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Commonwealth       v.   Holmes,    14   A.3d    89,   95   (Pa.   2010)   (citing

Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999)).              Here, further

investigation was required to confirm whether the operator of the vehicle

was driving with a suspended license. Therefore, we must determine only

whether the trooper had the requisite level of reliable information, based on

the totality of the circumstances, at the time of the traffic stop to establish

that he was acting with reasonable suspicion.

      Notwithstanding the quantum of cause necessary for an officer to stop

a vehicle as outlined by the case law above, Appellant argues that the officer

involved herein lacked sufficient probable cause to justify a traffic stop.

Appellant’s brief at 11-13. Appellant concedes the officer had information at

the time of the stop, based on the NCIC, that the owner of Appellant’s

vehicle was a female with a DUI-suspended license. Id. at 15. Nonetheless,

she asserts that, given the lighting conditions, the position of the respective

vehicles, and the fact that the trooper’s view was obstructed by the headrest

in Appellant’s vehicle, he was unable to reliably identify Appellant’s gender,

or any other identifying features.      Id. at 14.     As a result, Appellant

continues, the trooper did not have sufficient probable cause to effectuate a

traffic stop.

      Initially, we note that Appellant improperly relies upon the probable

cause standard.   Here, Trooper Kemerer needed to investigate further to

determine whether a Vehicle Code violation was occurring, i.e., whether

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Appellant was driving the car. Hence, the officer required only reasonable

suspicion rather than probable cause, as outlined in Feczko, supra.            We

find Trooper Kemerer possessed sufficient information regarding the identity

of the driver to support his reasonable suspicion.          In denying Appellant’s

motion to suppress, the trial court found Commonwealth v. Hilliar, 943

A.2d 984 (Pa.Super. 2008), dispositive. We agree.

      The   defendant’s    arrest   in    Hilliar   arose    from   circumstances

substantially similar to those at issue here.        In Hilliar, a police officer

conducted a traffic stop after running the defendant’s license plate and

finding the owner’s license was suspended. Hilliar, 943 A.2d at 987. The

information included the owner’s age and gender.            Id. at 987-88.   After

observing that the driver was of the same gender, similar age, and was in

possession of the owner’s vehicle, the police officer stopped the vehicle on

suspicion of driving on a suspended license. Id. This Court held that the

police officer’s suspicion that the driver of a vehicle was likely the owner was

reasonable because the driver matched the description of the owner, a

middle-aged man. Id. at 990.

      Here, Trooper Kemerer obtained information that the owner of the

black Chevy Malibu was a female, and had a suspended license.                  He

testified, and the suppression court credited this testimony, that his

observation of the driver’s hair formed the basis of his belief that the driver

was female. Contrary to Appellant’s position, Trooper Kemerer asserted he

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had an unobstructed view through the vehicle’s rear-window and sufficient

ambient lighting to perceive the length of the driver’s hair. Notably, Trooper

Kemerer did not testify to observing the driver’s entire head, thus rendering

Appellant’s argument that his view was obstructed by the headrest

unavailing.

      Prior to initiating the traffic stop, Trooper Kemerer had personal

knowledge that the owner of the black Chevy Malibu was a female with a

DUI suspended license.    Furthermore, based on his personal observations,

he believed the person in possession of the Chevy Malibu was female. Just

as in Hilliar, Appellant’s traffic stop was a valid means to further investigate

whether the driver was operating the vehicle under a suspended license.

Therefore, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2016




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