J-A04040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ELIZABETH ALLISON DINON,

                            Appellant                 No. 1748 EDA 2016


             Appeal from the Judgment of Sentence May 19, 2016
               in the Court of Common Pleas of Chester County
              Criminal Division at No.: CP-15-CR-0003247-2015

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 18, 2017

        Appellant, Elizabeth Allison Dinon, appeals from the judgment of

sentence imposed following her bench trial conviction of driving under the

influence of alcohol and controlled substances (cocaine and marijuana), and

related offenses.      Specifically, she challenges the denial of her motion to

suppress.     Appellant argues that the Pennsylvania state troopers lacked

reasonable suspicion to stop her while she was driving on the night in

question. She asserts a violation of her constitutional rights. We conclude

that the trial court’s finding, in the totality of the circumstances, that the

state troopers had reasonable suspicion to stop Appellant, is supported by

the record. Accordingly, we affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       We derive the facts of the case from the trial court’s footnote

memorandum accompanying its denial of Appellant’s motion to suppress,

and our independent review of the certified record. (See Order, 1/22/16;

N.T. Suppression Hearing, 1/11/16; N.T. Trial, 3/11/16).1

       On July 7, 2015, at about 1:15 a.m., Pennsylvania State Troopers

Stefano Gallina and Erick Baker began to follow a Buick LeSabre driven by

Appellant on State Route 896 in the area of New Garden Township in

Chester County. They continued to follow her when she turned westbound

onto Oxford Road.

       Appellant’s car failed to stay in its lane of travel.          The troopers

observed the car “touching and/or crossing the double yellow lines.” (Order,

at 1 n.1). Trooper Baker testified that he observed her vehicle braking for

no apparent reason, abruptly fluctuating in speed, and negotiating turns

using an unusually wide radius.                (See id.; see also N.T. Suppression

Hearing, at 10; compare N.T. Trial, at 43-44). The trial court concluded the

vehicle was “weaving.” (N.T. Trial, at 98).

       The troopers started the dashboard camera, or motor vehicle recorder

(MVR). The parties agree that the entire length of the recording at issue is

less than two minutes. (See N.T. Suppression, at 9).


____________________________________________


1
  Trooper Baker testified at the suppression hearing. Both troopers testified
at the trial.



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        After following Appellant briefly in this way, the troopers activated

their overhead lights. Appellant pulled over. They testified they detected an

odor of alcoholic beverage.      Appellant had glassy, bloodshot eyes.     Her

pupils were dilated. (See N.T. Trial, at 45). Appellant consented to a blood

draw.     The parties stipulated that Appellant had a B.A.C. (blood alcohol

content) of .098%.      She also had cocaine and marijuana in her system.

(See id. at 65-66).

        The trial court convicted Appellant of driving under the influence of a

controlled substance as follows: 75 Pa.C.S.A. § 3802(a)(1) (general

impairment);      §   3802(a)(2)   (B.A.C.   between     .08%    and   .10%);

§ 3802(d)(1)(i) (Schedule I controlled substance) [cocaine]; § 3802(d)(1)(ii)

(Schedule II controlled substance) [marijuana]; § 3802(d)(1)(iii) (metabolite

of controlled substance); § 3802(d)(2) (combination of drugs); § 3802(d)(3)

(combination of drugs and alcohol).

        The trial court acquitted Appellant of violation of 75 Pa.C.S.A.

§ 3309, driving on roadways laned for traffic; § 3714, careless driving;

§ 3809, restrictions on alcoholic beverages (prohibiting possession or

consumption of open alcoholic beverage in motor vehicle); and § 4305,

displaying vehicular hazard warning signals (not turning on flashing lights

when stopped by the state troopers). On May 19, 2016, the court sentenced

Appellant to a term of not less than seventy-two hours nor more than six

months of incarceration.


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       This timely appeal followed.2

       Appellant presents one question for our review:

             Whether the investigative stop of [Appellant’s] vechile [sic]
       was lawful under the United States and Pennsylvania
       Constitutions?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       Appellant     maintains     that    the    state   troopers   “violated   [her]

constitutional right against unlawful search and seizures” when they

“conducted an unlawful stop of her vehicle.” (Id. at 13). She posits that

there was “insufficient evidence of reasonable suspicion” to justify the

troopers’ “intrusion on her vehicle.”          (Id. at 17; see also id. at 13 n.3).

Therefore, she asserts, this Court should reverse the trial court’s denial of

suppression, and reverse the trial court’s judgment.           (See id. at 17, 18).

We disagree.

       Preliminarily, we observe that Appellant frames her argument as a

challenge to the sufficiency of the evidence. (See id. at 17). Our standard

of review for a challenge to sufficiency is well-settled.

                 The standard we apply in reviewing the sufficiency of
          the evidence is whether viewing all the evidence admitted
          at trial in the light most favorable to the verdict winner,
          there is sufficient evidence to enable the fact-finder to find
          every element of the crime beyond a reasonable doubt. In
          applying [the above] test, we may not weigh the evidence
____________________________________________


2
  Appellant filed a concise statement of errors on June 23, 2016. The trial
court filed an opinion on June 27, 2016, referencing its order and footnote
memorandum of January 22, 2016. See Pa.R.A.P. 1925.



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         and substitute our judgment for the fact-finder.           In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.      Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [finder] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

            Further, in viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)

(citations omitted).

             [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, 121 A.3d 524, 526–27 (Pa. Super. 2015),

appeal denied, 135 A.3d 584 (Pa. 2016) (citation omitted).

      Additionally, on differing facts, our Supreme Court has explained the

standard of review and pertinent legal principles for a police stop as follows:

             The issue of what quantum of cause a police officer must
      possess in order to conduct a vehicle stop based on a possible
      violation of the Motor Vehicle Code is a question of law, over
      which our scope of review is plenary and our standard of review
      is de novo. Commonwealth v. Chase, 599 Pa. 80, 88, 960
      A.2d 108, 112 (2008). However, in determining whether the
      suppression court properly denied a suppression motion, we
      consider whether the record supports the court’s factual findings.
      If so, we are bound by those facts and may reverse only if the
      legal    conclusions   drawn     therefrom    are     in    error.
      Commonwealth v. Hernandez, 594 Pa. 319, 328, 935 A.2d
      1275, 1280 (2007).

            Pursuant to 75 Pa.C.S.A. § 6308(b),

               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.A. § 6308(b).

                                  *    *    *

            Section 6308(b) allows a police officer to conduct a vehicle
      stop if he has reasonable suspicion to believe that a violation of
      the Motor Vehicle Code is occurring or has occurred. We have
      defined reasonable suspicion as follows:




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               Reasonable suspicion is a less stringent standard
        than probable cause necessary to effectuate a warrantless
        arrest, and depends on the information possessed by
        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 criminal
        activity is afoot. [Commonwealth v.] Melendez, [544
        Pa. 323, 676 A.2d 226], at 228 [ (1996) ] (citing Terry [v.
        Ohio, 392 U.S. 1], at 21 [88 S. Ct. 1868, 20 L.Ed.2d 889
        (1968)]). In assessing the totality of the circumstances,
        courts must also afford due weight to the specific,
        reasonable inferences drawn from the facts in light of the
        officer’s experience and acknowledge that innocent facts,
        when considered collectively, may permit the investigative
        detention.

           Thus, under the present version of Section 6308(b), in
     order to establish reasonable suspicion, an officer must be able
     to point to specific and articulable facts which led him to
     reasonably suspect a violation of the Motor Vehicle Code . . . .

           The determination of whether an officer had reasonable
     suspicion that criminality was afoot so as to justify an
     investigatory detention is an objective one, which must be
     considered in light of the totality of the circumstances. See
     Chase, [supra] at 120 (“[r]easonable suspicion sufficient to
     stop a motorist must be viewed from the standpoint of an
     objectively reasonable police officer” ). . . . It is the duty of the
     suppression court to independently evaluate whether, under the
     particular facts of a case, an objectively reasonable police officer
     would have reasonably suspected criminal activity was afoot. As
     the United States Supreme Court has explained:

               [I]n justifying the particular intrusion the police
        officer must be able to point to specific and articulable
        facts which, taken together with rational inferences from
        those facts, reasonably warrant that intrusion.       The
        scheme of the Fourth Amendment becomes meaningful
        only when it is assured that at some point the conduct of
        those charged with enforcing the laws can be subjected to
        the more detached, neutral scrutiny of a judge who must
        evaluate the reasonableness of a particular search or
        seizure in light of the particular circumstances. And in

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        making that assessment it is imperative that the facts be
        judged against an objective standard: would the facts
        available to the officer at the moment of the seizure or the
        search ‘warrant a man of reasonable caution in the belief’
        that the action taken was appropriate? Anything less
        would invite intrusions upon constitutionally guaranteed
        rights based on nothing more substantial than inarticulate
        hunches, a result this Court has consistently refused to
        sanction. And simple “ ‘good faith on the part of the
        arresting officer is not enough.’ * * * If subjective good
        faith alone were the test, the protections of the Fourth
        Amendment would evaporate, and the people would be
        ‘secure in their persons, houses, papers and effects,’ only
        in the discretion of the police.[”]

     Terry, [supra at 21–22] (citations and footnotes omitted).

           [Our Supreme] Court has recognized the concerns
     expressed by the [United States] Supreme Court in Terry,
     noting, for example, “before the government may single out one
     automobile to stop, there must be specific facts justifying this
     intrusion.   To hold otherwise would be to give the police
     absolute, unreviewable discretion and authority to intrude into
     an individual’s life for no cause whatsoever.” Moreover, as we
     explained in [Commonwealth v.] Cook [735 A.2d 673 (Pa.
     1999)], to demonstrate reasonable suspicion, an officer “must be
     able to point to specific and articulable facts and reasonable
     inferences drawn from those facts in light of the officer’s
     experience.” [id.] at 677 (citation omitted). Thus, in order to
     establish reasonable suspicion, an officer must articulate specific
     facts in addition to inferences based on those facts, to
     support his belief that criminal activity was afoot.

Commonwealth v. Holmes, 14 A.3d 89, 94-97 (Pa. 2011) (footnotes and

most case citations omitted) (emphases in original).

     Here, on independent review, we conclude that the trial court properly

denied the motion to suppress. The court found, considering the totality of

the circumstances, (including the MVR), that Trooper Baker had reasonable




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suspicion to believe that Appellant was driving under the influence of

alcohol. (See Order, n.1 at unnumbered page 3).

       His belief was based on his observation of her vehicle failing to stay in

its lane of travel, touching or crossing the double yellow lines in the middle

of the road, and braking erratically. (See N.T. Suppression, at 10). Based

on his training and experience, which included forty personal DUI stops and

another forty assists, Trooper Baker drew the inference that there might be

criminal activity afoot. (See id. at 5-6).3

       Therefore, in his testimony, Trooper Baker pointed to “specific and

articulable facts” which led him to suspect criminal activity, namely driving

under the influence. Holmes, supra at 95; see also Terry, supra at 21.

The trial court properly denied the motion to suppress.

       Appellant insists that “the MVR provides irrefutable evidence that [she]

did not exhibit any cues of criminal activity[.]” (Appellant’s Brief, at 13; see

also id. at 16-17). We disagree.

       Appellant’s reliance on the video is misplaced.     She notes that the

suppression court characterized the facts of the case as “borderline” (which,

in any event, she disputes).          Quoting Commonwealth v. Gleason, 785

A.2d 983, 987 (Pa. 2001), and Commonwealth v. Swanger, 307 A.2d

____________________________________________


3
  The trooper also noted that between the hours of ten at night and two in
the morning, there are higher rates of impaired drivers on the road. (See
N.T. Suppression, at 38).



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875, 879 (Pa. 1973), Appellant maintains that a borderline case is

inadequate to meet the Commonwealth’s burden of proof. (See id. at 17).

       Appellant’s argument overlooks the fact that both Gleason and

Swanger were decided under the previously applicable probable cause

standard.4     The probable cause standard has been replaced by the less

stringent reasonable suspicion standard.           See Holmes, supra at 94 n.12,

n.16 (Pa. 2011) (recognizing that probable cause standard for investigatory

stop has been superseded by statute).              Appellant acknowledges that the

reasonable suspicion standard controls, (see Appellant’s Brief, at 14),

indeed, that reasonable suspicion is the “only . . . issue” raised in this

appeal. (Id. at 13 n.3).5 Appellant also explicitly disclaims any challenge to

the credibility determinations of the trial court. (See id. at 14). Appellant’s

claim does not merit relief.



____________________________________________


4
  Appellant also relies on Commonwealth v. Baumgardner, 796 A.2d 965
(Pa. 2002). (See Appellant’s Brief, at 15). Baumgardner, a per curiam
reversal, explicitly relies on Gleason. Accordingly, Baumgardner is no
longer reliable precedent either.
5
  However, Appellant mischaracterizes the trial court’s holding by claiming it
found that there was “insufficient cause” to stop her. (Appellant’s Brief, at
13 n.3). The trial court found that there was reasonable suspicion to stop
her, (see Order, n.1 at unnumbered page 3), but “if probable cause was
required,” Trooper Baker lacked sufficient information. (Id. at unnumbered
page 4) (emphasis added). Because the trial court’s contingent finding is
beyond the scope of this appeal, we need not review it on the merits, and
we decline to do so.



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      It was the role of the suppression court sitting as fact finder to review

the evidence, to pass on the credibility of witnesses and the weight of the

evidence produced, and to believe all, part or none of the evidence.           See

Harden, supra at 111. If the record supports the court’s factual findings,

we are bound by those facts and may reverse only if the legal conclusions

drawn therefrom are in error. See Holmes, supra at 96. It is not the role

of this Court to re-weigh the evidence, and we decline the invitation to do

so.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, and giving the Commonwealth the benefit of all

reasonable inferences to be drawn from the evidence, we conclude that

there was sufficient evidence, borderline or otherwise, to support the

suppression   court’s   finding   of   reasonable   suspicion   and   denial    of

suppression. See id.

      The troopers could have followed Appellant for a longer period of time,

but decided not to for the safety of all concerned, including, presumably,

Appellant as well as oncoming traffic. (See N.T. Suppression, at 10) (“We

decided to stop the vehicle to avoid anything that may come.”).

      In any event, disputing the number of times on the MVR that Appellant

intruded on the double yellow line, or not, and how far, misapprehends the

purpose and standard of our review. Even a combination of innocent facts,




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when taken together, may warrant further investigation by the police officer.

See Holmes, supra at 96.

       Furthermore, on independent review, including the MVR, we conclude

that the suppression court’s factual findings are supported by the record.6

We are bound by those findings and may reverse only if the court’s legal

conclusions are erroneous. We conclude that the suppression court properly

applied the law to the facts. It was not necessary for the state troopers to

prolong the surveillance in order to rack up a higher number of line crossings

or other driving violations to establish reasonable suspicion. As noted by the

trial court, “[b]etter safe than sorry.” (N.T. Suppression, at 49).

       Judgment of sentence affirmed.

       Judge Solano joins the Memorandum.

       Judge Shogan concurs in the result.




____________________________________________


6
  Additionally, it bears noting that the suppression court reviewed the entire
body of evidence in the record, not just the MVR. There are inherent
limitations, not the least mechanical, in what a dashboard camera can
capture, especially at night. See “Justice Visualized: Courts and the Body
Camera Revolution,” 50 U.C. Davis L.R. 897, 936 (observing that “dash
camera videos yield only partial snapshots, often from a distant angle that
misses important details”).



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J-A04040-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2017




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