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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
WILLIAM M. AMATO,                         :          No. 738 EDA 2015
                                          :
                        Appellant         :


          Appeal from the Judgment of Sentence, January 21, 2015,
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0008405-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 03, 2016

      William M. Amato appeals from the judgment of sentence of

January 21, 2015, following his conviction of driving under the influence

(“DUI”) -- general impairment, 75 Pa.C.S.A. § 3802(a)(1), DUI -- highest

rate of alcohol, 75 Pa.C.S.A. § 3802(c), and summary traffic offenses. We

affirm.

      The trial court has set forth the history of this matter as follows:

                  On July 20, 2013 at approximately 9:40 p.m.,
            Lower Moreland Patrol Officer Christopher Daniel, a
            nine year veteran of the force, observed a silver
            Acura sedan driving erratically.       It was later
            discovered that this vehicle was driven by Appellant.
            Although one car was in between Officer Daniel and
            Appellant, the hilly terrain gave Officer Daniel a
            mostly unobstructed view of Appellant’s car.

                  While following [Appellant], Officer Daniel
            noticed Appellant’s brake lights turning on and off
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          more than usual. Appellant’s car did not maintain a
          consistent speed and followed the car in front too
          closely. The right side of the road has a narrow
          shoulder and is abutted by a ravine. Officer Daniel
          saw Appellant’s vehicle cross the right fog line twice,
          invoking his concern for Appellant’s safety as well as
          the    safety   of    nearby     drivers.       Although
          Officer Daniel’s view of Appellant’s car tires was
          partially obstructed, he could determine that
          Appellant was over the fog line based on the
          vehicle’s physical location, relative to the fog line.

                 Suspecting that Appellant’s erratic driving and
          inability to maintain a safe distance was due to
          intoxication, Officer Daniel conducted a traffic stop.
          Upon speaking with Appellant, Officer Daniel
          observed signs of intoxication.        Appellant was
          subsequently arrested for DUI. Officer Daniel read
          Appellant the O’Connell Warnings[Footnote 1], then
          transported Appellant to Holy Redeemer Hospital for
          chemical testing.     The results of the blood test
          showed that Appellant’s blood alcohol concentration
          (“BAC”) was .160 %.

                [Footnote 1] The phrase “O’Connell
                Warnings” means the officer must
                specifically inform a motorist that his
                driving privileges will be suspended for
                one year if he refuses chemical testing,
                and that the rights provided by the
                United States Supreme Court’s decision
                in Miranda v. Arizona, 384 U.S. 436
                (1966), do not apply to chemical testing.
                See     Commonwealth,        Dept.     of
                Transp., Bureau of Traffic Safety v.
                O’Connell, 555 A.2d 873, 877-78 (Pa.
                1989); See also Commonwealth,
                Department of Transportation v.
                Ingram, 648 A.2d 285, 290 (Pa. 1994);
                Commonwealth,          Department      of
                Transportation v. Scott, 684 A.2d 539,
                540-41 (Pa. 1996).




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                 On April 24, 2014, Appellant filed a Motion to
            Suppress, which this Court heard on September 4,
            2014. Appellant’s Motion to Dismiss [sic] was denied
            on October 8, 2014.

                  On January 21, 2015, a non-jury trial was
            held. Appellant stipulated to the admission of all of
            [the] Commonwealth[’s] evidence and presented no
            evidence on his behalf. This Court found Appellant
            guilty on all counts and sentenced him to undergo
            imprisonment for ninety days to five years.[1]

                 On January 30, 2015, Appellant filed a post
            sentence motion, which this Court denied on
            February 24, 2015. This appeal followed.

Trial court opinion, 4/28/15 at 1-2.

      On March 12, 2015, the trial court directed appellant to file a concise

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

within 21 days; appellant timely complied on March 23, 2015.         The trial

court issued a Rule 1925(a) opinion on April 28, 2015.2


1
  Appellant received a sentence of 90 days to 5 years’ imprisonment on
Count 2, DUI -- highest rate of alcohol. (Notes of testimony, 1/21/15 at
11.) Count 1, DUI -- general impairment, merged for sentencing purposes.
(Id. at 10-11.) Appellant received a fine of $250 on the summary offenses.
(Id. at 11.)
2
   On April 1, 2015, this court issued a rule to show cause why the appeal
should not be quashed as interlocutory, since, according to the criminal
docket, the trial court had not imposed judgment of sentence. Appellant
filed responses on April 13, 2015, and May 1, 2015, asserting that he was
sentenced on January 21, 2015, following the stipulated non-jury trial, and
that the trial court granted his request for supersedeas pending appeal.
Timely post-sentence motions were filed on January 30, 2015, and denied
on February 24, 2015. Appellant attributed the error to incorrect docketing
by the clerk’s office. After review of the record and appellant’s responses to
this court’s show cause order, it does appear that appellant was sentenced
on January 21, 2015, to 90 days to 5 years’ imprisonment and that the trial


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      Appellant has raised the following issues for this court’s review:

            1.     Did the Trial Court err when it denied
                   Appellant’s motion to suppress evidence when
                   the arresting officer’s testimony at the
                   suppression hearing was not supported by the
                   clear footage from his patrol vehicle’s dash
                   cam and that his testimony, even if believed,
                   did not support probable cause for a motor
                   vehicle stop?

            2.     Did the Trial Court err in precluding the
                   Appellant       from     questioning        the
                   Commonwealth’s only witness, the arresting
                   officer, regarding any potential fabrication of
                   his testimony?

Appellant’s brief at 5.3

                   Our standard of review where an
                   appellant appeals the denial of a
                   suppression motion is well-established:
                   we are limited to determining whether
                   the factual findings are supported by the
                   record and whether the legal conclusions
                   drawn from those facts are correct. We
                   may consider the evidence of the
                   witnesses offered by the prosecution, as
                   verdict winner, and only so much of the
                   defense      evidence     that   remains
                   uncontradicted when read in the context



court granted appellant’s request for a stay of his sentence pending the
outcome of the instant appeal. (Notes of testimony, 1/21/15 at 11-12.) We
could not locate appellant’s sentencing order anywhere in the certified
record, nor does appellant’s judgment of sentence appear on the docket.
However, this appears to have been an oversight. Therefore, we will not
quash the appeal as interlocutory.
3
  Two additional issues raised in appellant’s Rule 1925(b) statement and
addressed by the trial court in its opinion, challenging the weight and
sufficiency of the evidence to support his conviction of count 2, DUI --
highest rate of alcohol, have been abandoned on appeal.


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                of the record as a whole. We are bound
                by facts supported by the record and
                may reverse only if the legal conclusions
                reached by the court below were
                erroneous.

          Commonwealth v. Scott, 878 A.2d 874, 877
          (Pa.Super.2005), appeal denied, 586 Pa. 749, 892
          A.2d 823 (2005) (citations omitted).

Commonwealth v. Smith, 904 A.2d 30, 35 (Pa.Super. 2006).

          In Pennsylvania, the authority that addresses the
          requisite cause for a traffic stop is statutory and is
          found at 75 Pa.C.S.A. § 6308(b), which provides:

          (b)   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).        In Commonwealth v.
          Feczko, 10 A.3d 1285 (Pa.Super. 2010) (en banc),
          this Court, consistent with our Supreme Court’s
          clarification of constitutional principles under the
          Fourth Amendment and Article I, Section 8 of the
          Pennsylvania Constitution, stated with respect to
          § 6308(b):

                In light of our Supreme Court’s
                interpretation of the current language of
                Section 6308(b), we are compelled to
                conclude that the standards concerning
                the quantum of cause necessary for an


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               officer to stop a vehicle in this
               Commonwealth            are        settled;
               notwithstanding any prior diversity on
               the issue among panels of this Court.
               Traffic stops based on a reasonable
               suspicion: either of criminal activity or a
               violation of the Motor Vehicle Code under
               the authority of Section 6308(b) must
               serve a stated investigatory purpose.
               (footnote and citation omitted).

               ....

               Mere reasonable suspicion will not justify
               a vehicle stop when the driver’s
               detention cannot serve an investigatory
               purpose relevant to the suspected
               violation.  In such an instance, “it is
               encumbent [sic] upon the officer to
               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
               Code.” [Commonwealth v.] Gleason
               [567 Pa. 111], 785 A.2d [983,] 989 [(Pa.
               2001)] (citation omitted)[, superseded
               by statute, Act of Sept. 30, 2003, P.L.
               120,    No.    24,   §    17    (amending
               75 Pa.C.S.A. § 6308(b))].

          Id. at 1290-1291 (emphasis added in Gleason).
          Accordingly, when 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 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. Illustrative
          of these two standards are stops for speeding and


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           DUI. If a vehicle is stopped for speeding, the officer
           must possess probable cause to stop the vehicle.
           This is so because when a vehicle is stopped, nothing
           more can be determined as to the speed of the
           vehicle when it was observed while traveling upon a
           highway. On the other hand, if an officer possesses
           sufficient knowledge based upon behavior suggestive
           of DUI, the officer may stop the vehicle upon
           reasonable suspicion of a Vehicle Code violation,
           since a stop would provide the officer the needed
           opportunity to investigate further if the driver was
           operating under the influence of alcohol or a
           controlled substance. Compare Commonwealth v.
           Enick, 70 A.3d 843, 846 (Pa.Super. 2013) (probable
           cause required to stop for failure to drive on right
           side of roadway), Commonwealth v. Brown, 64
           A.3d 1101, 1105 (Pa.Super. 2013) (probable cause
           required to stop for failure to use turn signal),
           Commonwealth v. Busser, 56 A.3d 419, 424
           (Pa.Super. 2012) (probable cause required to stop
           for failure to yield to emergency vehicles), and
           Feczko, 10 A.3d at 1291 (probable cause required
           to stop for failure to maintain lanes), with
           Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89,
           96–97 (2011) (reasonable suspicion sufficient to stop
           to    investigate  front   windshield    obstruction),
           Commonwealth v. Bailey, 947 A.2d 808, 812–14
           (Pa.Super. 2008) (reasonable suspicion sufficient to
           stop to investigate faulty exhaust system or
           muffler); see also Commonwealth v. Landis, 89
           A.3d 694, 703 (Pa.Super. 2014) (noting that where
           trooper stopped motorist for failing to drive within a
           single lane--and not to investigate possible DUI--he
           needed probable cause to stop). With these guiding
           principles and examples in mind, we now turn to the
           examination of the Vehicle Code violation subject of
           this appeal.

Commonwealth v. Salter, 121 A.3d 987, 992-993 (Pa.Super. 2015).

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

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



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inference.”    Id. at 994, quoting Commonwealth v. Spieler, 887 A.2d

1271, 1275 (Pa.Super. 2005) (quotation omitted).

              Reasonable suspicion requires only that the officer
              have sufficient knowledge to believe a traffic
              violation has occurred in order to conduct a brief
              investigative stop. See Feczko, 10 A.3d at 1291
              (noting an officer may, consistent with § 6308(b),
              perform a traffic stop “to secure such other
              information as the officer may reasonably believe to
              be necessary to enforce the provisions of [the
              Vehicle Code]”).

Id.

      Instantly, Officer Daniel had sufficient reasonable suspicion that

appellant was driving under the influence to justify pulling him over for

further investigation.     Officer Daniel testified that he has nine years’

experience as a patrol officer and has investigated over one hundred DUI

cases. (Notes of testimony, 9/4/14 at 3-5.) He observed appellant’s vehicle

drift over the fog line twice, including once where the passenger side wheels

were completely over the line. (Id. at 6-7, 34.) Officer Daniel testified that

in that particular area of Byberry Road, there is a very narrow berm:

              . . . there are various areas where it drops off
              suddenly, the shoulder is not present and you go
              from the fog line to maybe a foot or two of a little bit
              of asphalt and it drops off into a ravine of such so it
              is very dangerous in that particular area to be
              drifting to the right.

Id. at 7.

      In addition, Officer Daniel testified that appellant was following the

vehicle in front of him too closely and constantly flashing his brake lights:


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“The brake lights continually activated brought my attention to the vehicle.

I could tell as I was following this vehicle that it was too close to the vehicle

in front of it.” (Id. at 8.) Officer Daniel estimated that appellant was only

4-5 feet behind the vehicle in front of him.      (Id. at 32.)    Officer Daniel

testified that with his training and experience, he suspected that appellant

was under the influence of alcohol. (Id. at 16.) See Commonwealth v.

Angel, 946 A.2d 115, 117-118 (Pa.Super. 2008) (state trooper possessed

reasonable suspicion necessary to effectuate the traffic stop where he

observed the appellant twice cross the fog line along his lane of traffic over a

distance of one-half mile then move onto the exit ramp without using his

turn signal), citing Commonwealth v. Fulton, 921 A.2d 1239, 1243

(Pa.Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007) (finding

experienced officer who observed driver swerve over fog line three times

within 30 seconds in dense fog possessed reasonable suspicion to stop

vehicle).

      Following the suppression hearing, the trial court determined that

Officer Daniel possessed reasonable suspicion to stop appellant “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.”    (Opinion and Order, 10/8/14 at 5.)       The trial court

found Officer Daniel’s testimony to be persuasive and credible:

            Officer Daniel saw [appellant] follow too closely and
            swerve out of his lane twice toward a dangerous


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           ledge. Officer Daniel also had the opportunity to
           view the behavior of at least two other drivers, who
           were able to safely navigate the roadway; this
           provided a point of comparison for [appellant]’s
           erratic driving. Officer Daniel credibly testified that
           due to [appellant]’s erratic driving, he suspected
           [appellant] was impaired.

Id. at 4. The trial court’s conclusions are amply supported by the record,

and we assign no error.4

     To the extent appellant complains that Officer Daniel’s testimony was

not supported by the police vehicle dash cam footage, the trial court did not

rely on the dash cam footage in denying appellant’s motion to suppress:

           Officer Daniel’s patrol vehicle was equipped with a
           video surveillance system that recorded a portion of
           the events that evening.         This recording was
           introduced at the suppression hearing. Due to the
           poor lighting within the video, this court was unable
           to see or distinguish anything pointed out by either
           party except the existence of a ravine. This court
           finds the video admitted into evidence has no
           probative value. Therefore, this decision is based
           solely on the evidence presented.

Id. at 2. At any rate, appellant cross-examined Officer Daniel extensively

regarding the dash cam footage, and any alleged inconsistencies were for

the suppression court to resolve.




4
  Furthermore, Officer Daniel had probable cause to stop appellant for two
separate Motor Vehicle Code violations, “Driving on roadways laned for
traffic,” 75 Pa.C.S.A. § 3309(1); and “Following too closely,” 75 Pa.C.S.A.
§ 3310(a). Appellant was, in fact, found guilty of two counts of violating
Section 3309(1).


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      We now turn to appellant’s second and final issue: that the trial court

erred in limiting his cross-examination of Officer Daniel regarding credibility.

Pennsylvania Rule of Evidence 611, “Mode and Order of Examining

Witnesses and Presenting Evidence,” provides:

            (a)   Control by the Court; Purposes. The court
                  should exercise reasonable control over the
                  mode and order of examining witnesses and
                  presenting evidence so as to:

                  (1)    make those procedures effective
                         for determining the truth;

                  (2)    avoid wasting time; and

                  (3)    protect witnesses from harassment
                         or undue embarrassment.

Pa.R.E. 611(a).     “The trial court also has considerable discretion in

determining the scope and limits of cross-examination, and this Court cannot

reverse absent a clear abuse of discretion or error of law.” Commonwealth

v. Boxley, 838 A.2d 608, 615 (Pa. 2003), citing Commonwealth v. Birch,

616 A.2d 977, 978 (Pa. 1992).

      Apparently, Officer Daniel had been seated in the courtroom during

defense counsel’s argument on a prior, unrelated DUI case.           (Notes of

testimony, 9/4/14 at 17.)    During cross-examination, counsel implied that

Officer Daniel’s testimony had somehow been tainted and/or that he had

been coached by the prosecution:

            Q.    You were here for the last hearing?

            A.    Yes.


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           Q.    You sat right there?

           A.    Yes.

           Q.    When I made my argument to the Judge and
                 you heard about a case --

           MS. MAC MASTER [(Alexandria MacMaster, Esq.,
           assistant district attorney)]: Objection, Your Honor,
           this is irrelevant.

           MR. REYNOLDS [(Coley O. Reynolds, Esq., defense
           counsel)]: It is absolutely relevant.

           THE COURT: I don’t know what he’s going to say. I
           can’t rule on your objection because I don’t know
           where he is going with this.

           BY MR. REYNOLDS:

           Q.    You heard my argument on the last case in
                 regards to the Fesco [sic] case, right?[5]

           A.    I did.

           Q.    And the Assistant District Attorney told you I
                 never heard of that, didn’t she?

           A.    She did not.

           Q.    She said something about that case, didn’t
                 she? And you guys went outside --

           MS. MAC MASTER: Objection.

           THE COURT: Where are you going with this?

           MR. REYNOLDS: I will withdraw that.

           BY MR. REYNOLDS:

5
 Presumably, defense counsel is referring to this court’s en banc decision in
Commonwealth v. Feczko, supra.


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          Q.    You and the DA went outside and talked then?

          A.    We did not.

          Q.    Did you prep right in front here?

          A.    We did not.

          THE COURT: I am sustaining the objection. Officer,
          let’s not say anything right now until I rule on this
          objection. I don’t know where you are going with
          this. You all can have a sidebar discussion with me
          but I don’t want to hear any more of this because I
          don’t understand and you’re not responding to my
          statements here. So unless you will tell me, then
          the objection is sustained.

          BY MR. REYNOLDS:

          Q.    Did you meet with the District Attorney prior to
                testifying today?

          MS. MAC MASTER: Objection, Your Honor.

          THE WITNESS: I did.

          MS. MAC MASTER: Relevance. I don’t see what the
          point of this is.

          THE COURT: Let me see counsel.

          (A conference was held in chambers, not reported.)

          THE COURT:     Mr. Reynolds, you may resume your
          questioning.

          MR. REYNOLDS: I just want to note for the record
          that we had a conference in your chambers and at
          that time you precluded the Defense from asking any
          questions other than the following in regards to this;
          whether or not this Officer changed his testimony
          based on what he heard from my prior arguments.



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            BY MR. REYNOLDS:

            Q.    Officer, did you change anything you were
                  going to testify to today?

            A.    No.

            MR. REYNOLDS: Based on hearing that I would just
            note my objection, Your Honor, because there is a
            whole series of other questions I would want to ask
            on this.

            THE COURT: So noted. Any other questions?

Notes of testimony, 9/4/14 at 17-20.

      Initially, we note that the conference in chambers was not reported, so

this court has no idea what appellant’s offer of proof was, or what he was

trying to prove with this line of questioning.

            It is Appellant’s responsibility to supply this Court
            with a complete record for purposes of appeal,
            Pa.R.A.P. 1911, and we may not consider any
            information which is not contained in the certified
            record. Smith v. Smith, 431 Pa.Super. 588, 637
            A.2d 622, 624 (Pa.Super. 1994) (‘[A] failure by an
            appellant to insure that the original record certified
            for appeal contains sufficient information to conduct
            a proper review constitutes a waiver of the issue
            sought to be examined.’); Commonwealth v.
            Quinlan, 488 Pa. 255, 412 A.2d 494 (1980);
            Commonwealth v. Buehl, 403 Pa.Super. 143, 588
            A.2d 522 (Pa.Super. 1991).

Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.Super. 1998).

      At any rate, assuming the issue is preserved for review, we would

nevertheless find no abuse of discretion.        The trial court explains, “This

Court viewed Counsel’s line of inquiry as collateral to the present matter. In



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the interests of relevance and judicial economy, this Court limited

Appellant’s questioning . . . .” (Trial court opinion, 4/28/15 at 6.)

      Despite Officer Daniel’s presence during defense counsel’s argument

during a prior, unrelated hearing, there is nothing in the record to suggest

that Officer Daniel’s testimony was tainted in any way or that he was told

what to say by the prosecution. Appellant’s line of questioning appears to

be mere speculation and innuendo. Appellant’s impertinent suggestion that

Officer Daniel fabricated his testimony is without support in the record. In

addition,   appellant’s   ability   to   explore   any   inconsistencies   between

Officer Daniel’s trial testimony and his prior reports was not curtailed by the

trial court’s ruling, as he suggests on appeal. (Appellant’s brief at 18.) In

fact, appellant cross-examined Officer Daniel thoroughly regarding any

perceived differences between the affidavit of probable cause and his

testimony. (Notes of testimony, 9/4/14 at 21-25.) There is no merit here.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




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