J-A03005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellant

                   v.

KENNEDY ANTHONY RICHARDS

                        Appellee                     No. 962 MDA 2016


               Appeal from the Order Entered May 16, 2016
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0002147-2015


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                           FILED APRIL 20, 2017

     The Commonwealth of Pennsylvania appeals from the order entered in

the Court of Common Pleas of Cumberland County, which granted Richards’

motion to suppress evidence recovered from Kennedy Anthony Richards’

vehicle after he was stopped by police for a violation of 75 Pa.C.S. §

3313(d). Upon review, we affirm.

     The trial court noted the facts of this matter as follows:

     On May 13, 2015, Trooper [David] Long and Trooper [John]
     Gerkin were on patrol in an unmarked vehicle on northbound
     Interstate 81 monitoring highways for criminal interdiction. At
     approximately 4:30 p.m. on that day, [Richards], in a rented
     2014 Nissan Sentra with a New Jersey plate, drove by the
     Troopers’ position around mile marker 40. At the time he drove
     by, [Richards] was in the left-hand lane of the highway. The
     Troopers pulled out and began to follow [Richards]; by the time
     that they had pulled him over, they had traveled for five miles.
     The video recording from the patrol car shows approximately one
     mile of travel totaling about a minute and a half prior to the
     vehicle coming to a stop; during this time, [Richards] remained
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       in the left lane with several vehicles in front of him, all of which
       appeared to be passing [other] vehicles, most notably a tractor-
       trailer truck, in the right-hand lane.

       The Troopers activated their lights and after waiting for an
       available spot in the right-hand lane, [Richards] used his turn
       signal, pulled into the right lane, and then pulled over onto the
       berm of the road around marker 45. Upon request, [Richard]
       provided a valid Florida driver’s license as well as the rental
       agreement for the vehicle. When questioned by the Troopers,
       [Richards] was extremely nervous, and was inconsistent and
       evasive as to his travel plans and his criminal history, which
       included arrests for firearms and narcotics.         The Troopers
       requested to search [Richards’] vehicle, but [Richards] refused
       to give consent. A K9 unit was summoned to search the vehicle,
       and ultimately, approximately 13 pounds of marijuana was
       discovered in the vehicle. The Troopers did not issue a citation
       to [Richards] for driving in the left lane without passing, instead
       issuing a warning.

Trial Court Opinion, 5/16/16, at 1-2.1

       Richards was charged with possession with intent to deliver (PWID),

35 P.S. § 780-113, based upon the marijuana recovered from the vehicle.

He filed a motion to suppress the discovery of the marijuana, arguing that

the Troopers lacked probable cause to either conduct a traffic stop or

conduct a search of his vehicle.               The trial court granted the motion to

suppress. This timely appeal followed, in which Richards raises the following

issue for our review:

       Did the suppression court err in granting the motion to suppress
       when the trooper stopped the [Appellant’s] vehicle based on
       probable cause for a violation of 75 Pa.C.S. § 3313(d)?
____________________________________________


1
  The trial court enumerated findings of fact, however, we have grouped
them together for ease of discussion.



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Brief for Appellant, at 4.

      When reviewing an order denying a defendant’s motion to suppress,

we must determine “whether the record supports the trial court’s factual

findings and whether the legal conclusions drawn therefrom are free from

error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super.

2000). In so doing, we may consider “only the evidence of the prosecution

and so much of the evidence for the defense as remains uncontradicted

when read in the context of the record as a whole.”       Commonwealth v.

Maxon, 798 A.2d 761, 765 (Pa. Super. 2002).        “Where the record supports

the findings of the suppression court, we are bound by those facts and may

reverse only if the court erred in reaching its legal conclusions based upon

the facts.” McClease, 750 A.2d at 323-24.

      Vehicle Code Section 3313 provides:

      (d) Driving in right lane.—

         (1) Except as provided in paragraph (2) [(relating to
         vehicles over 10,000 pounds)] and unless otherwise
         posted, upon all limited access highways having two or
         more lanes for traffic moving in the same direction, all
         vehicles shall be driven in the right-hand lanes when
         available for traffic except when any of the following
         conditions exist:

            (i) When overtaking and passing          another    vehicle
            proceeding in the same direction.

            (ii) When traveling at a speed greater than the traffic
            flow.

            (iii) When moving left to allow traffic to merge.




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               (iv) When preparing for a left turn at an intersection,
               exit or into a private road or driveway when such left
               turn is legally permitted.

75 Pa.C.S. § 3313(d)

         In this case, the Troopers testified that they observed Richards driving

slower than the traffic in the right lane and that he could have moved into

the right lane. However, the video shows Richards complying with the law

the entire time and actually passing vehicles in the right lane as he traveled

in the left lane. As the trial court noted,

         [a]lthough the Commonwealth’s position is that [Richards] had
         the opportunity to get into the right lane at several points, the
         statute does not mandate that he do so. Rather, the statute
         specifically allows for travel in the left lane when overtaking and
         passing another vehicle proceeding in the same direction, or
         when traveling at a speed greater than the traffic flow. As . . .
         the evidence indicate[s] that [Richards] was doing exactly that,
         we are constrained to find that there was not sufficient [probable
         causeto stop him] and will suppress the seizure of the
         marijuana[.]

Trial Court Opinion, 5/16/16, at 5 (quotation marks omitted). We agree that

any violation of the statute appears to have been a de minimis violation.

See Commonwealth v. Slattery, 139 A.3d 221, 225 n.8 (Pa. Super. 2016)

(de minimis violations of Vehicle Code do not provide probable cause for

stop).

         Accordingly, viewing the evidence in the context of the record as a

whole, we defer to the trial court’s conclusion that no probable cause existed

to find that Richards violated section 3313(d) and that the resulting search

of Richards’ car was fruit of the poisonous tree. Maxon, supra.



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J-A03005-17



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2017




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