J-S45030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ILIJA PILIC

                            Appellant                  No. 1802 MDA 2014


          Appeal from the Judgment of Sentence of October 14, 2014
             In the Court of Common Pleas of Cumberland County
              Criminal Division at No.: CP-21-CR-0003057-2012


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                          FILED SEPTEMBER 08, 2015

       Ilija Pilic appeals his October 14, 2014 judgment of sentence.        We

affirm.

       On August 25, 2012, around 2 a.m., Carlisle Police Officer Matthew

Kennedy was on patrol in a marked police car near the intersection of

Church Avenue and South Hanover Street in Carlisle.         Church Avenue is a

one-lane, one-way street.        At the intersection with Hanover Street, a stop

sign is posted on the right side of the street and a sign that says all traffic

must turn right is posted on the left side of the street.         Both signs are

visible. The all traffic must turn right sign had been posted in that location

for fourteen or fifteen years.

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S45030-15



       Officer Kennedy saw a red BMW go straight through the intersection,

instead of turning right onto Hanover Street as required by the posted sign.

Officer Kennedy pulled the car over and spoke with the driver, Pilic.           Pilic

told Officer Kennedy that Pilic saw the officer and that “he went straight

anyway.”     Notes of Testimony (“N.T.”), 4/15/2014, at 11.           Pilic had both

alcohol and THC in his system.

       Pilic was charged with driving under the influence (“DUI”) – general

impairment, DUI – general impairment with a blood alcohol content of .08-

.10%, DUI – combination of drugs, DUI – controlled substance, and

obedience to traffic control devices.1           On February 26, 2014, Pilic filed a

pre-trial motion in which he asserted that, because the all traffic must turn

right sign was illegally placed, Pilic did not violate the Motor Vehicle Code.

Therefore, Pilic argued that Officer Kennedy lacked probable cause for the

traffic stop. Because there was no probable cause, Pilic contended that the

stop was illegal and that all evidence derived from the stop should be

suppressed.       After a hearing on April 15, 2014, at which Officer Kennedy

testified, the trial court denied the motion.

       On August 19, 2014, Pilic proceeded to a non-jury trial. At trial, Pilic

stipulated that he was driving the car, that he was impaired and incapable of

safe driving, and that he was under the influence of alcohol and had

____________________________________________


1
     75     Pa.C.S.A.        §§    3802(a)(1),     3802(a)(2),          3802(d)(3),
3802(d)(1)(i)(ii)(iii), and 3111(a), respectively.



                                           -2-
J-S45030-15



sufficient levels of THC in his blood for DUI purposes. N.T., 8/19/2014, at 3.

The parties stipulated that the reason for the stop was that Pilic went

straight through the intersection instead of turning right.           The testimony

from the suppression hearing was incorporated into the trial record. Id. at

4. Following those stipulations, the trial court found Pilic guilty of the DUI

counts, but not guilty of the obedience to traffic control devices offense.2

Id. at 5.

       On October 14, 2014, Pilic was sentenced to seventy-two hours to six

months’ imprisonment, along with fines, costs, and drug and alcohol

treatment.     N.T., 10/14/2014, at 3.           Pilic indicated his intent to appeal

immediately.      He requested bail pending appeal, which the trial court

granted. Id. at 2.

       On October 27, 2014, Pilic filed a notice of appeal.          On October 28,

2014, the trial court ordered Pilic to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Pilic timely

complied. On January 5, 2015, the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

       Pilic presents one issue for our review:


____________________________________________


2
      The trial court stated that its standard practice was to find a defendant
not guilty of the associated summary offenses in cases like the instant one.
Id. at 3-4. The trial court recognized that the summary offense was,
however, the basis of the stop and the issue Pilic intended to appeal. Id. at
5.



                                           -3-
J-S45030-15


       Did the suppression court err when it denied [Pilic’s] omnibus
       pre-trial motion challenging the validity of the traffic stop which
       resulted in [Pilic’s] arrest and conviction where [Pilic] was
       stopped for violating 75 Pa.C.S. § 3111(a) even though the
       traffic-control device at issue was not properly positioned?

Pilic’s Brief at 6.

       When reviewing the denial of a suppression motion, our standard of

review is as follows:

       An appellate court’s standard of review in addressing a challenge
       to a trial court’s denial of a suppression motion is limited to
       determining whether the factual findings are supported by the
       record and whether the legal conclusions drawn from those facts
       are correct. Since the prosecution prevailed in the suppression
       court, 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. Where the record supports the factual findings of the
       trial court, we are bound by those facts and may reverse only if
       the legal conclusions drawn therefrom are in error.

Commonwealth v. Wells, 916 A.2d 1192, 1194-95 (Pa. Super. 2007).

       Pilic argues that, because the all traffic must turn right sign was on the

left side of the street, pursuant to the Manual on Uniform Traffic Control

Devices (“MUTCD”), it was placed on the wrong side of the street.            Pilic

asserts that he did not violate section 3111(a), because there is no violation

if a traffic sign is not in a correct position. Pilic argues that, because he did

not violate the Motor Vehicle Code, Officer Kennedy did not have probable

cause for the traffic stop.     Therefore, Pilic concludes that the evidence

resulting from the stop should have been suppressed. Pilic’s Brief at 10-21.




                                      -4-
J-S45030-15



      A police officer has the authority to stop a vehicle for a violation of the

Motor Vehicle Code.     75 Pa.C.S.A. § 6308(b).       Instantly, because Pilic’s

alleged violation of the Motor Vehicle Code did not require further

investigation, the traffic stop had to be supported by probable cause.

      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. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (citation

and quotation marks omitted; emphasis in original).            Officer Kennedy

testified that, by observing Pilic disobey the all traffic must turn right sign,

he had probable cause to believe that Pilic had violated the Motor Vehicle

Code. In response, Pilic argues that, because the sign was illegally placed,

he did not violate the Motor Vehicle Code and there was no probable cause

to stop him.

      To determine if Officer Kennedy had probable cause, we must consider

whether Pilic violated the Motor Vehicle Code.        Section 3111 states, in

pertinent part, as follows:

      (a) General rule. – Unless otherwise directed by a uniformed
      police officer or any appropriately attired person authorized to
      direct, control or regulate traffic, the driver of any vehicle shall
      obey the instructions of any applicable official traffic-control
      device placed or held in accordance with the provisions of this
      title, subject to the privileges granted the driver of an
      emergency vehicle in this title.


                                      -5-
J-S45030-15


                                        *      *    *

       (b) Proper position and legibility of device. – No provision
       of this title for which official traffic-control devices are required
       shall be enforced against an alleged violator if at the time and
       place of the alleged violation an official device is not in proper
       position and sufficiently legible to be seen by an ordinarily
       observant person. Whenever a particular section does not state
       that official traffic-control devices are required, the section shall
       be effective even though no devices are erected or in place.

       (c) Presumption of authorized placement. – Whenever
       official traffic-control devices are placed or held in position
       approximately conforming to the requirements of this title, the
       devices shall be presumed to have been so placed by the official
       act or direction of lawful authority, unless the contrary shall be
       established by competent evidence.

                                        *      *    *

75 Pa.C.S.A. § 3111.

       With regard to standards for traffic control devices, Pennsylvania has

adopted the MUTCD, as published by the Federal Highway Administration.

See 67 Pa. Code §§ 212.2, 212.1.                   In general, for placement of traffic

control devices, the MUTCD offers the following guidance3:

       Placement of a traffic control device should be within the road
       user’s view so that adequate visibility is provided. To aid in
       conveying the proper meaning, the traffic control device should
       be appropriately positioned with respect to the location, object,
       or situation to which it applies. The location and legibility of the
       traffic control device should be such that a road user has
       adequate time to make the proper response in both day and
       night conditions.

____________________________________________


3
    Guidance is defined in the MUTCD as a recommended, but not
mandatory, practice. § 1A.13(1)(B).




                                            -6-
J-S45030-15



§ 1A.04(1). For sign placement, the MUTCD states that “Standardization of

position cannot always be attained in practice.” § 2A.16(1). As guidance, it

says:

        Signs should be located on the right-hand side of the roadway
        where they are easily recognized and understood by road users.
        Signs in other locations should be considered only as
        supplementary to signs in the normal locations, except as
        otherwise provided in this Manual.

§ 2A.16(4). It also notes that , as an option, that, in some circumstances,

signs may be placed on the left.4 § 2A.16(11). In the diagrams provided to

illustrate   sign   placement,      none       involve   a   one-lane,   one-way   road

intersecting another road.

        The statements describing sign placement are all permissive, using the

word “should,” rather than mandatory, which is typically identified by the

use of the word “shall.” The MUTCD makes clear that the circumstances of

the particular road should be considered in sign placement. It is also clear

that sign placement on the left-hand side of the road, while not preferred, is

permissible.     Although the circumstances in this case are not specifically

mentioned in the MUTCD, it is clear that the sign placement on the left of a

one-lane, one-way street is not illegal.



____________________________________________


4
      The section provides examples of possible circumstances when a left-
hand sign is necessary as when there are curves in the road or when multi-
lanes of traffic might obstruct a sign on the right.



                                           -7-
J-S45030-15



      Further, section 3111 creates a presumption that the placement of the

sign is an authorized placement. 75 Pa.C.S.A. § 3111(c). In a similar case,

we analyzed whether a school zone speed limit sign that was placed

overhead, instead of on the right-hand side of the road, was legally

positioned.    Commonwealth v. Long, 577 A.2d 899 (Pa. Super. 1990).

There, we held that:

      [T]he above regulations and their common sense application by
      this Court clearly encompass the multitude of conditions and
      diversity of our roadways which prevents the identical placement
      of every sign. Such rigidity would often negate the ameliorative
      goals of the traffic control devices themselves.       For these
      reasons, we find the school zone speed limit sign in this case
      was positioned properly, as required by section 3111 of the
      Vehicle Code, and absent any competent evidence to the
      contrary, the Commonwealth is entitled to a presumption that it
      was placed in accordance with statutory and regulatory
      requirements.

Long, 577 A.2d at 902.          Pilic offered no evidence that the sign was

positioned improperly, other than reference to the MUTCD, which does not

conclusively support his position that placement on the left is in any way

problematic or illegal.   Therefore, Pilic has not overcome sections 3111’s

presumption.

      Here, the sign placement was in accordance with the statute and

regulations. Therefore, Officer Kennedy had probable cause to believe that

Pilic had violated the Motor Vehicle Code when Pilic failed to obey the all

traffic must turn right sign.    Because the traffic stop was supported by




                                      -8-
J-S45030-15



probable cause, the trial court did not err in denying Pilic’s suppression

motion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




                                  -9-
