J-S68040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellant               :
                                         :
                    v.                   :
                                         :
DAVID BRANDON JUDY,                      :
                                         :
                 Appellee                :     No. 489 WDA 2016

                Appeal from the Order Entered March 30, 2016
           in the Court of Common Pleas of Westmoreland County,
             Criminal Division, at No(s): CP-65-CR-0003049-2015

BEFORE:     SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED NOVEMBER 18, 2016

      The Commonwealth of Pennsylvania appeals from the March 30, 2016

order which granted the motion to dismiss filed by David Brandon Judy

(Judy). Upon review, we affirm.

      The suppression court summarized the underlying facts of this case as

follows.

            During the hearing on [Judy’s motion to dismiss],
      [Pennsylvania State Police Trooper Gregory Hays (Trooper
      Hays)] testified relative to his interaction with [Judy]. Trooper
      Hays testified that at approximately 1:06 a.m. [on March 20,
      2015, Trooper Hays] observed [Judy’s] vehicle traveling east on
      Route 30. He followed the vehicle for a distance and began to
      clock the vehicle using the calibrated speedometer in his police
      cruiser. Trooper Hays testified that from the time he started to
      clock [Judy’s] vehicle until the time the stop occurred, he
      observed [Judy] for a quarter of a mile. Trooper Hays indicated
      that [Judy] was traveling 60 miles an hour in a 40 mile an hour
      zone.



*Retired Senior Judge assigned to the Superior Court.
J-S68040-16


            Trooper Hays testified that he also observed [Judy’s]
      vehicle travel across the fog line on three occasions. Based on
      Trooper Hays observations, he initiated a traffic stop. Trooper
      Hays testified that his police cruiser is equipped with a Dash
      Cam video, and it was operating during the incident.

             On cross-examination, Trooper Hays testified that when he
      first came across [Judy’s] vehicle, [Judy] was not swerving,
      weaving, or speeding. At this time, Trooper Hays indicated that
      he had no reason to be suspicious that [Judy] was driving under
      the influence of alcohol. Trooper Hays testified that when he
      initiated the traffic stop, he did not have enough evidence
      against [Judy] to charge him with speeding. Trooper Hays
      testified that [Judy] “touched” the fog line with his tire.
      However, Trooper Hays testified that during his observation,
      [Judy] never left its proper lane of traffic, did not cross over the
      fog line, or touch the berm. Trooper Hays indicated that there
      were no other cars on the road at this time.

Suppression Court Opinion and Order, 3/30/2016, at 3.1 The stop of Judy’s

vehicle resulted in Judy’s being charged with several motor vehicle code

violations, inter alia, DUI.2   On December 3, 2015, Judy filed a motion to

dismiss. On March 30, 2016, following the hearing and after consideration

of the parties’ briefs, the suppression court granted Judy’s motion, holding

as follows.



1
  The suppression court filed its Rule 1925(a) opinion in which it relied solely
on its analysis of the issues set forth in the court’s March 30, 2016 opinion
filed with its order granting Judy’s motion to dismiss.
2
 Because the only issue raised at the hearing concerned Trooper Hays’ initial
stop of Judy’s vehicle and whether he had the requisite probable cause to do
so, testimony was not elicited from Trooper Hays regarding the observations
he made when he encountered Judy and any field sobriety tests he may
have conducted.



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            [The suppression court] finds that Trooper Hays lacked
      probable cause to stop Mr. Judy for speeding. Trooper Hays did
      not clock [Judy’s] vehicle for the requisite distance under the
      Motor Vehicle Code. Additionally, Trooper Hays testified that
      when he initiated the traffic stop, he did not have enough
      evidence against [Judy] to charge him with speeding. There was
      no evidence presented to suggest that [Judy] was traveling
      faster than reasonable and prudent under the conditions which
      existed March 20, 2015. Absent other factors, Trooper Hays’
      testimony that [Judy] was traveling 60 miles an hour in a 40
      mile an hour zone over a distance of a quarter of a mile, does
      not alone, amount to probable cause to initiate a traffic stop.

Suppression Court Opinion and Order, 3/30/2016, at 4.      This timely-filed

appeal followed.3

      The Commonwealth presents one issue for this Court’s review: “[t]he

suppression court err[ed] in finding the trooper lacked probable cause to

stop [Judy’s] vehicle for speeding because the trooper did not clock the

vehicle for the request distance under the motor vehicle code[4] in light of

the Superior Court’s holding in [Commonwealth v. McElroy, 630 A.2d 35

(Pa. Super. 1993) (en banc)].”    Commonwealth’s Brief at 1 (unnecessary

capitalization omitted).

      We consider the Commonwealth’s issue mindful of the following.


3
 Both the suppression court and the Commonwealth have complied with
Pa.R.A.P. 1925.
4
  See 75 Pa.C.S. § 3368 (“The rate of speed of any vehicle may be timed on
any highway by a police officer using a motor vehicle equipped with a
speedometer. In ascertaining the speed of a vehicle by the use of a
speedometer, the speed shall be timed for a distance of not less than three-
tenths of a mile.”).



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     When the Commonwealth appeals from a suppression order, this
     Court follows a clearly defined scope and standard of review. We
     consider only the evidence from the defendant’s witnesses
     together with the evidence of the prosecution that, when read in
     the context of the entire record, remains uncontradicted. This
     Court must first determine whether the record supports the
     factual findings of the suppression court and then determine the
     reasonableness of the inferences and legal conclusions drawn
     from those findings. In appeals where there is no meaningful
     dispute of fact, as in the case sub judice, our duty is to
     determine whether the suppression court properly applied the
     law to the facts of the case.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.

2013) (quotation marks and citations omitted) (quoting Commonwealth v.

Arthur, 62 A.3d 424, 427 (Pa. Super. 2013)).

     The following principles guide our review of this matter.

     [W]hen 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.

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

     Probable cause is made out when the facts and circumstances
     which are within the knowledge of the officer at the time of the
     arrest, and of which he has reasonably trustworthy information,
     are sufficient to warrant a man of reasonable caution in the
     belief that the suspect has committed or is committing a crime.
     The question we ask is not whether the officer’s belief was
     correct or more likely true than false. Rather, we require only a
     probability, and not a prima facie showing, of criminal activity.




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      In determining whether probable cause exists, we apply a
      totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal

quotation marks and citations omitted).

      The Commonwealth avers that Trooper Hays possessed the requisite

probable cause to initiate the traffic stop.   In making this argument, the

Commonwealth relies solely on our holding in McElroy. In McElroy, Officer

Arnold Duck testified he observed McElroy’s vehicle for approximately five

seconds travelling at a high rate of speed. 630 A.2d at 37. Specifically, the

Officer estimated the truck McElroy was driving was travelling at least 80

miles per hour in a 35-mile-per-hour-zone. Id. Officer Duck immediately

turned his vehicle around and began pursuing McElroy, eventually initiating a

stop of McElroy’s vehicle. Id. Officer Duck testified that at the time, he felt

he had probable cause to stop McElroy for travelling in excess of the speed

limit. Id. During the traffic stop, “Officer Duck and his partner detected the

odor of alcohol on [McElroy’s] breath and asked [McElroy] to submit to field

sobriety tests.”   Id.   After failing said tests, McElroy was arrested and

transported to the hospital where a blood test revealed a blood alcohol level

of .19%. McElroy was charged with, inter alia, DUI.

      McElroy filed a motion to suppress, arguing that “the initial stop of his

vehicle was illegal because the police officer lacked ‘probable cause to

believe’ or ‘articulable and reasonable ground to suspect a violation of the



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[vehicle code]’”. Id. at 36. The trial court denied McElroy’s motion. After

being found guilty and sentenced accordingly, McElroy filed an appeal

challenging the denial of his suppression motion.         This Court granted en

banc consideration of this case to “clarify the standard to be applied when

determining whether a police officer may legally stop a motor vehicle[.]” Id.

      Upon review, the McElroy Court concluded that the suppression motion

was properly denied, even though Officer Duck’s assessment of McElroy’s

speed was based only upon his personal observation. In doing so, the Court

found that while “it is true that a police officer’s opinion testimony alone is

not   sufficient   to   sustain   a   conviction    for   speeding   under   75

Pa.C.S.§ 3362[,]” the question presented is not whether Officer Duck’s

testimony could sustain a conviction for speeding, but rather whether his

testimony amounted to ‘reasonable and articulable grounds to suspect a

violation of the Vehicle Code.’”      McElroy, 630 A.2d at 40 (emphasis in

original).   The Court held that the Officer’s opinion that the truck “was

travelling 80 miles per hour in a 30 mile per hour zone amounted to

‘articulable and reasonable grounds’ to suspect [McElroy] was speeding, and

Officer Duck was entitled to stop []and request [McElroy’s] driver’s license,

vehicle registration and proof of financial responsibility.” Id.




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     In concluding the Officer had sufficient probable cause to initiate the

stop, the McElroy Court expressly overruled this Court’s prior decision in

Commonwealth v. Whitmyer 609 A.2d 809 (Pa. Super. 1992).

            In Whitmyer[,] a police officer stopped Whitmyer’s
     vehicle because the officer felt the operator was driving
     “erratically” and was travelling at an unsafe speed in violation of
     75 Pa.C.S.[] § 3361. The officer testified that he followed
     Whitmyer for two-tenths of a mile [instead of the three-tenths of
     a mile required by the Vehicle Code] at 70 miles per hour in a 55
     miles per hour zone, before Whitmyer exited the highway. He
     described Whitmyer’s driving as “erratic” and noted that the
     traffic on the highway was medium to heavy at the time. In spite
     of the officer’s testimony regarding his reasons for stopping
     [Whitmyer], the trial court suppressed [] all evidence gained as
     a result of the stop. The trial court reasoned that the police
     officer did not have “probable cause to believe” that Whitmyer
     was in violation of [75 Pa.C.S. § 3361], and, thus, the stop was
     illegal. A panel of this [C]ourt agreed with the trial court that
     the officer’s observations did not amount to “articulable and
     reasonable grounds to suspect” that Whitmyer was driving at an
     unsafe speed. Whitmyer, 609 A.2d at 814-815.

McElroy, 630 A.2d at 41 (footnote omitted).

     In relying on this Court’s holding in McElroy, the Commonwealth

neglects to mention that our Supreme Court affirmed Whitmyer after this

Court overruled it with McElroy. See Commonwealth v. Whitmyer, 668

A.2d 1113 (Pa. 1995) (superseded by statute).5      In affirming this Court’s



5
  Since our Supreme Court’s holding in Whitmyer, the statute setting forth
the requirements a police officer must meet in order to initiate a stop of a
vehicle has changed.      Specifically, the former version of 75 Pa.C.S.
§ 6308(b) required a police officer have “articulable and reasonable
grounds” to effectuate a vehicle stop. The present version requires a police
officer have “reasonable suspicion” that a violation of the motor vehicle code


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decision in Whitmyer, our Supreme Court held that “the trooper could not

have relied upon his estimate of [Whitmyer’s] speed as that estimate was

based on a distance of only two-tenths of a mile instead of the three-tenths

required by the statute.” Id. at 1117 (emphasis added). In concluding as

such, our Supreme Court made it clear that

      this is not a case where further investigation would lead to a
      discovery of a violation of the Vehicle Code. If the trooper was
      unable to clock [Whitmyer] for three-tenths of a mile or observe
      the conditions that would warrant a citation for driving at an
      unsafe speed, there is no further evidence that could be obtained
      from a subsequent stop and investigation. Thus, we conclude
      that the fruits of the unlawful stop were correctly suppressed.

Id. at 1118.

      Here, Trooper Hays testified that he stopped Judy for speeding, but

failed to clock Judy for the three-tenths of a mile required by statute. Thus,

based on our Supreme Court’s holding in Whitmyer, we are constrained to

affirm the suppression court’s finding that Trooper Hays lacked probable

cause to stop Judy’s vehicle.

      Order affirmed.




is occurring or had occurred in order to initiate a stop. Despite the change
in language, this Court has continued to hold that a police officer must have
probable cause to pull over a vehicle for speeding. Salter, 121 A.3d at 993
(“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.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016




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