J-A08025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ANDREW DAVID SIKORA, JR.

                         Appellant                  No. 1532 EDA 2015


            Appeal from the Judgment of Sentence April 24, 2015
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0003780-2014

BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 22, 2016

      Appellant, Andrew David Sikora, Jr., appeals from the judgment of

sentence entered on April 24, 2015. We are constrained to reverse.

      The factual background and procedural history of this case are as

follows.   At approximately 2:00 a.m. on August 9, 2014, Officer Matthew

Fusco responded to a disturbance.       When he reached Bridge Street in

downtown Phoenixville, Officer Fusco learned that fellow officers resolved the

disturbance. Shortly thereafter, Officer Fusco and Appellant were traveling

in opposite directions on Bridge Street. At that time, the road was dry, the

skies were clear, and visibility was good. The speed limit on Bridge Street is

25 miles per hour (“MPH”) and Appellant was traveling 14 MPH when he

passed Officer Fusco.




* Retired Senior Judge assigned to the Superior Court
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        After Appellant passed Officer Fusco, Officer Fusco heard an engine

surge. He looked in his side mirror and saw Appellant’s vehicle continuing in

the opposite direction.       Officer Fusco turned around and pulled Appellant

over to investigate whether Appellant was driving at an unsafe speed.

Based upon his interaction with Appellant, Officer Fusco believed Appellant

was under the influence of alcohol and therefore ordered him to perform

field sobriety tests.      Appellant failed the field sobriety tests and was

transported to the local hospital where a blood test showed Appellant’s blood

alcohol concentration (“BAC”) was .184%.

        On   November      17,   2014,   Appellant   was   charged   via   criminal

information with driving under the influence-highest rate,1 driving under the

influence-high rate,2 driving under the influence-general impairment,3

careless driving,4 driving an unregistered vehicle,5 and driving at an unsafe

speed.6      On December 12, 2014, Appellant filed a suppression motion,

arguing that Officer Fusco lacked the requisite probable cause to pull him

over to investigate the offense of driving at an unsafe speed. A suppression


1
    75 Pa.C.S.A. § 3802(c).
2
    75 Pa.C.S.A. § 3802(b).
3
    75 Pa.C.S.A. § 3802(a)(1).
4
    75 Pa.C.S.A. § 3714(a).
5
    75 Pa.C.S.A. § 1301(a).
6
    75 Pa.C.S.A. § 3361.


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hearing was held on March 20, 2015, at the conclusion of which the trial

court denied the suppression motion.

       On April 24, 2015 Appellant was convicted of driving under the

influence-highest rate. The remaining charges were withdrawn. Appellant

was immediately sentenced to seven days to six months’ imprisonment.

This timely appeal followed.7

       Appellant presents two issues for our review:

    1. [Did the trial court err by finding that Officer Fusco only needed
       reasonable suspicion to pull Appellant over?

    2. Did the trial court err in finding that Officer Fusco had probable
       cause to pull Appellant over?]

See Appellant’s Brief at 2.

       Both of Appellant’s issues relate to the trial court’s denial of his

suppression motion. Our “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.” Commonwealth

v. Mason, 130 A.3d 148, 151 (Pa. Super. 2015) (citation omitted). “[O]ur

scope of review is limited to the factual findings and legal conclusions of the

suppression court.”    In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation

omitted).   “We may consider only the Commonwealth’s evidence and so

7
  On June 16, 2015, Appellant filed a concise statement of errors complained
of on appeal (“concise statement”). See Pa.R.A.P. 1925(b). On July 23,
2015, the trial court issued its Rule 1925(a) opinion. Both issues raised on
appeal were included in Appellant’s concise statement.


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much of the evidence for the defense as remains uncontradicted when read

in the context of the record as a whole.” Commonwealth v. Williams, 125

A.3d 425, 431 (Pa. Super. 2015) (citation omitted). “Once a defendant files

a motion to suppress, the Commonwealth has the burden of proving that the

evidence in question was lawfully obtained without violating the defendant’s

rights.” Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015)

(citation omitted).

      In his first issue, Appellant argues that the trial court applied the

wrong standard when determining whether Officer Fusco lawfully stopped

Appellant. Appellant argues that Officer Fusco needed probable cause to pull

him over.   The trial court found, however, that Officer Fusco needed only

reasonable suspicion in order to pull Appellant over.

      “Both the Fourth Amendment to the United States Constitution and

Article I, § 8 of the Pennsylvania Constitution protect citizens from

unreasonable searches and seizures.”      Commonwealth v. Gillespie, 103

A.3d 115, 118 (Pa. Super. 2014) (citation omitted).       “To safeguard these

rights, courts require police to articulate the basis for their interaction with

citizens in three increasingly intrusive situations.”     Commonwealth v.

Clemens, 66 A.3d 373, 378 (Pa. Super. 2013) (internal alterations,

quotation marks, and citation omitted).

      The first of these is a mere encounter (or request               for
      information) which need not be supported by any level             of
      suspicion, but carries no official compulsion to stop or          to
      respond. The second, an investigative detention[,] must          be


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       supported by a reasonable suspicion; it subjects a suspect to a
       stop and a period of detention, but does not involve such
       coercive conditions as to constitute the functional equivalent of
       an arrest. Finally, an arrest or custodial detention must be
       supported by probable cause.

Commonwealth v. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015) (internal alteration, quotation marks, and

citation omitted).

       In finding that Officer Fusco needed only reasonable suspicion to stop

Appellant for driving at an unsafe speed, the trial court relied upon 75

Pa.C.S.A. § 6308(b). That statute provides that:

       Whenever a police officer . . . has reasonable suspicion that a
       violation of [the Vehicle Code] 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 th[e Vehicle Code].

75 Pa.C.S.A. § 6308(b).       The trial court interpreted section 6308(b) to

permit police detention based upon reasonable suspicion that the driver

violated any portion of the Vehicle Code.

       Our Supreme Court has rejected the trial court’s interpretation of

section 6308(b). Specifically, our Supreme Court has held that:

       a vehicle stop based solely on offenses not “investigatable”
       cannot be justified by a mere reasonable suspicion, because the
       purposes of a Terry[8] stop do not exist—maintaining the status
       quo while investigating is inapplicable where there is nothing


8
    See Terry v. Ohio, 392 U.S. 1 (1968)


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      further to investigate. An officer must have probable cause to
      make a constitutional vehicle stop for such offenses.

Commonwealth        v.   Chase,   960   A.2d   108,   116    (Pa.   2008);   see

Commonwealth v. Slattery, 2016 PA Super 99, 3-4 (Pa. Super. May 13,

2016); Commonwealth v. Feczko, 10 A.3d 1285, 1290-1291 (Pa. Super.

2010) (en banc), appeal denied, 25 A.3d 327 (Pa. 2011).

      Based upon our Supreme Court’s holding in Chase, whether Officer

Fusco needed reasonable suspicion or probable cause depends upon whether

driving at an unsafe speed constitutes an investigatable offense.            We

conclude that, under the facts presented in this case, driving at an unsafe

speed is not an investigatable offense. The police officer could not gain any

information from a traffic stop which would help him determine whether

Appellant was operating his vehicle at an unsafe speed. Instead, the police

officer’s observation of the vehicle and the surrounding circumstances (i.e.,

weather, road conditions, visibility, etc.), is the only factor in determining if

Appellant was operating the vehicle at an unsafe speed.9

      Alternatively, the Commonwealth argues that Officer Fusco had

reasonable suspicion that Appellant was fleeing the scene of a crime. As this

Court has explained:


9
  The Commonwealth relies upon Commonwealth v. Perry, 982 A.2d 1009
(Pa. Super. 2009), in support of its argument that a police officer only needs
reasonable suspicion to pull a driver over for driving at an unsafe speed.
The Commonwealth ignores, however, that the en banc panel in Feczko
overruled Perry. Feczko, 10 A.3d at 1291 & n.2.



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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 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.

Clemens, 66 A.3d at 379 (ellipsis and citation omitted).

      We conclude that Officer Fusco lacked reasonable suspicion that

Appellant was fleeing the scene of a crime. Officer Fusco lacked any facts to

support the inference that a crime recently occurred in the area and/or that

a suspect was fleeing the scene of a crime. To the contrary, although Officer

Fusco knew that a disturbance had occurred in the area, the record confirms

that the situation had been successfully contained and that the scene was

clear. It is not reasonable to infer, from a single surge of an engine, that an

individual is fleeing a non-active crime scene. The video of the interaction

confirms that Officer Fusco had no knowledge of Appellant’s involvement

with the prior fracas.   Accordingly, we conclude that Officer Fusco needed

probable cause to pull Appellant over.

      Having determined that Officer Fusco needed probable cause to pull

Appellant over, we turn to whether he possessed such lawful justification for

his interaction with Appellant. The Commonwealth argues that Officer Fusco

possessed probable cause for two reasons. First, the Commonwealth argues

that Appellant surging his engine made it probable that he was driving at an



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unsafe speed.      Second, the Commonwealth argues that the time and

location of the incident, i.e., bar closing time in a downtown area, meant

that driving at 14 MPH was unsafe for those conditions.       Both arguments

lack merit.

      As to the first argument, Officer Fusco did not testify as to what effect

Appellant’s surging of the engine had on the speed of the vehicle he was

driving.   At the suppression hearing Officer Fusco only testified to hearing

the engine surge and seeing Appellant’s taillights pulling away, and without

any support, he made the conclusory statement that Appellant was traveling

away from him at a high rate of speed.10 N.T., 3/10/15, at 9. Officer Fusco

saw Appellant’s taillights in his side mirror. Officer Fusco merely caught a

brief glimpse of the taillights proceeding in the opposite direction.    Thus,

Appellant’s surging of the engine was insufficient to give Officer Fusco

probable cause.

      Next, the Commonwealth argues that Appellant’s rate of speed – 14

MPH in a 25 MPH zone – was sufficient to give Office Fusco probable cause in

light of the surrounding circumstances.      Specifically, the Commonwealth

argues that it was closing time for the bars located along Bridge Street in

downtown Phoenixville and pedestrians were jaywalking at the time.         We


10
   The only evidence of record as to the speed that Appellant was traveling
when he passed Officer Fusco is the testimony of Steven Shorr, an accident
reconstructionist, who testified as an expert witness on behalf of Appellant.
Mr. Shorr testified that, in his expert opinion, Appellant accelerated from 6
MPH to “about” 14 MPH as he passed Officer Fusco. N.T., 3/10/15, at 62.


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carefully reviewed the footage from Officer Fusco’s dashboard camera and

conclude that the surrounding circumstances did not provide Officer Fusco

with probable cause that traveling 14 MPH was unsafe for the conditions.

Instead, the surrounding circumstances were similar to those encountered

every day in school zones across this Commonwealth.        Pedestrians were

walking on the sidewalk and there was an occasional jaywalker.        Fifteen

miles per hour is an appropriate speed under those circumstances. See 75

Pa.C.S.A. § 3365(b). As no other evidence supported Officer Fusco’s belief

that Appellant was driving at an unsafe speed, we conclude he lacked

probable cause to pull Appellant over.    Therefore, the trial court erred by

denying Appellant’s suppression motion.     As no other evidence supported

Appellant’s conviction, we reverse the judgment of sentence and discharge

Appellant.

     Judgment of sentence reversed. Appellant discharged.

     Judge Strassburger joins this memorandum.

     Judge Bowes files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2016




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