J-A03003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID LEROY SMITH

                            Appellant                  No. 1136 MDA 2014


             Appeal from the Judgment of Sentence June 24, 2014
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001720-2013


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                              FILED MARCH 03, 2015

        Appellant, David Leroy Smith, appeals from the aggregate judgment of

sentence of 72 hours’ to six months’ imprisonment plus fines, imposed after

the trial court found Appellant guilty of driving under the influence – general

impairment (DUI), DUI - high rate of alcohol, and restriction on alcoholic

beverages.1 After careful review, we affirm.

        The certified record reveals the following factual and procedural history

of this case.      On July 7, 2013, Officer Andrew Berry of the Bellefonte

Borough Police Department was on patrol duty.          N.T., 2/11/14, at 5.   At

approximately 1:50 a.m., Officer Berry observed and began to follow a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3809(a), respectively.
J-A03003-15


green Saturn sedan. Id. at 5, 11. Officer Berry observed the vehicle stop at

a stop sign, at which point the three brake lights on the rear of the vehicle

turned on simultaneously. Id. at 5-6, 8. Officer Berry then observed the

vehicle’s right turn signal activate, and the vehicle began to accelerate. Id.

at 6.    When the vehicle began accelerating, Officer Berry observed two of

the three brake lights extinguish while one brake light remained illuminated.

Id. at 6, 8.

        Upon observing the performance of the brake lights, Officer Berry

activated his emergency lights and pulled over the vehicle.            Affidavit of

Probable Cause, 7/23/13, at 1.2           Officer Berry identified Appellant as the

driver of the vehicle and observed that Appellant had bloodshot and watery

eyes. Id. At the same time, Officer Berry detected a strong odor of alcohol

emanating from the vehicle. Id. There was also a passenger in the vehicle

who was in possession of a half-full, 12 ounce can of beer.              Id.   The

passenger informed Officer Berry that the can of beer belonged to Appellant.

Id.     Officer Berry also noticed there was an empty 16 ounce can of beer

located on the floor of the driver’s side. Id. Officer Berry asked Appellant to

perform a series of field coordination exercises.             Id.    Officer Berry

additionally conducted a preliminary breath test, which yielded a positive

____________________________________________


2
  At trial, counsel for Appellant stipulated to the affidavit of probable cause
in its entirety, and it was admitted into evidence as Commonwealth’s Exhibit
1. N.T., 5/23/14, at 8.



                                           -2-
J-A03003-15


result for the presence of alcohol.              Id. at 2.    Based on Appellant’s

performance on the field tests and the result of the preliminary breath test,

Officer Berry arrested Appellant for DUI.          Id.   Appellant’s blood was later

tested for alcohol content, and it was determined that his blood alcohol

concentration (BAC) was .162.3

       On October 25, 2013, the Commonwealth charged Appellant with the

aforementioned offenses.         On November 25, 2013, Appellant filed a motion

to suppress, asserting that Officer Berry lacked reasonable suspicion or

probable cause to initiate a traffic stop.         On February 11, 2014, the trial

court held a hearing on Appellant’s motion to suppress.               Following the

hearing, the trial court ordered the parties to file memoranda of law in

support of their respective positions. Trial Court Order, 2/11/14. On May 6,

2014, the trial court filed an order and opinion denying Appellant’s motion to

suppress. Trial Court Order and Opinion, 5/6/14, at 1-4.

       Appellant proceeded to a non-jury trial on May 23, 2014.              At the

conclusion of the trial, Appellant was found guilty of all charges. On June

24, 2014, the trial court sentenced Appellant to 72 hours’ to six months’

imprisonment plus a $1,000 fine for DUI - high rate of alcohol, a $25.00 fine

for restriction on alcoholic beverage, and “no separate sentence” for DUI –
____________________________________________


3
  The affidavit of probable cause indicates a BAC of .172. Affidavit of
Probable Cause, 7/23/13, at 2. At trial, the Commonwealth conceded that
the margin of error could render Appellant’s BAC at .162. N.T., 5/23/14, at
18.



                                           -3-
J-A03003-15


general impairment.        Sentencing Order, 6/26/14.   Appellant filed a timely

notice of appeal on July 11, 2014.4

       On appeal, Appellant raises the following issue for our review.

                   Whether the [t]rial [c]ourt erred in failing to
              suppress evidence obtained as a result of an
              unlawful traffic stop[?]

Appellant’s Brief at 4.

       When reviewing a challenge to a trial court’s denial of a suppression

motion, we adhere to the following well-established standard of review.

              We may consider only the Commonwealth’s evidence
              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.          An
              appellate court, of course, is not bound by the
              suppression court’s conclusions of law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).

____________________________________________


4
   Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Specifically, the trial court filed two opinions in
response to Appellant’s Rule 1925(b) statement. On August 26, 2014, the
trial court filed a Rule 1925(a) opinion authored by the judge who presided
over Appellant’s motion to suppress hearing. Trial Court Opinion, 8/26/14,
at 1-2. Therein, the trial court directed this Court’s attention to the opinion
filed on May 6, 2014, articulating the trial court’s reasoning for its denial of
Appellant’s suppression motion. Id. On August 29, 2014, the trial court
filed a Rule 1925(a) opinion authored by the judge who presided over
Appellant’s trial. Trial Court Opinion, 8/29/14, at 1-2. Therein, the trial
court found that Officer Berry’s authority to stop the vehicle had been
previously decided as a matter of law and asserted all elements necessary to
find Appellant guilty were established at trial. Id. at 2.



                                           -4-
J-A03003-15


      We begin by noting, “[i]t is undisputed that the stopping of an

automobile and the detention of its occupants is a seizure subject to

constitutional restraints.” Commonwealth v. Garibay, --- A.3d ---, 2014

WL 6910871, *2 (Pa. Super. 2014) (en banc) (citation omitted). Therefore,

Appellant’s issue implicates the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution, as

both afford protection against unreasonable searches and seizures.        U.S.

Const., amend. IV; Pa. Const. art. I, § 8.     “While warrantless seizures such

as a vehicle stop are generally prohibited, they are permissible if they fall

within one of a few well-delineated exceptions.”          Commonwealth v.

Brown, 996 A.2d 473, 476 (Pa. 2010) (citation omitted). The Pennsylvania

Motor Vehicle Code provides for one such exception, based on reasonable

suspicion of a motor vehicle code violation.

            § 6308. Investigation by police officers

                                       …

            (b) Authority of police officer.—Whenever a
            police officer is engaged in a systemic 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.




                                     -5-
J-A03003-15


75 Pa.C.S.A. § 6308(b). Accordingly, Section 6308 requires that an officer

have reasonable suspicion to support a traffic stop in order to gather

information necessary to     enforce    the    Motor   Vehicle   Code   provision.

Commonwealth v. Landis, 89 A.3d 694, 702 (Pa. Super. 2014).

“However, in [Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.

2010) (en banc)] this Court held that a police officer must have probable

cause to support a vehicle stop where the officer’s investigation subsequent

to the stop serves no ‘investigatory purpose relevant to the suspected

[Motor Vehicle Code] violation.’”      Id.    To illustrate, “a vehicle stop for

suspected DUI may lead to further incriminating evidence such as an odor of

alcohol or slurred speech, a stop for suspected speeding is unlikely to lead to

further evidence relevant to that offense.” Id. (citation omitted).

      Because Officer Berry’s basis for initiating the traffic the stop was his

observation of the manner in which Appellant’s brake lights functioned and

not a violation that would require further investigation, the requisite

suspicion for a constitutionally valid traffic stop in this case is probable

cause.   See id.   Therefore, at the suppression hearing, Officer Berry was

required 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.”

Feczko, supra (citation omitted; emphasis in original).




                                     -6-
J-A03003-15


       Appellant argues, “[t]he only evidence to permit the officer to stop []

Appellant’s    vehicle    was    an   after-the-fact   justification   suggesting   an

equipment violation ….5 Appellant’s Brief at 9. Appellant further contends,

“[a]s there was no violation of the vehicle code, the stop/arrest was not

valid.” Id. at 10. The Commonwealth counters, “[b]ecause [Appellant] was

in violation of the Motor Vehicle Code, the officer had justifiable grounds on

which to stop [Appellant]’s vehicle.” Commonwealth Brief at 7.

       At the suppression hearing, Officer Berry testified as follows regarding

his decision to initiate the traffic stop after observing Appellant’s vehicle.

              [Commonwealth:]

              Q. When [Appellant’s vehicle] made a stop at a stop
              sign, can you describe the back of the vehicle?

              [Officer Berry:]

              A. Yes. When the vehicle stopped, all three of the
              required brake lights turned on simultaneously,
              worked as they should. The vehicle then applied its
              right turn signal to go between the buildings of Napa
              Auto Store and the Dollar Store. When the vehicle
              started to excel, two of the three brake lights had
              turned off, and the driver’s side brake light remained
              on.

                                      …
____________________________________________


5
  To the extent Appellant argues Officer Berry’s articulated reason for the
traffic stop was a pretext to investigate a possible DUI, this claim is waived.
See Appellant’s Brief at 9. Appellant provides no citation to legal authority
or discussion in support of the bald assertion that, “the real reason for the
stop was the potential DUI[,]” that would afford him any relief. Id; see
also Pa.R.A.P. 2119(b).



                                           -7-
J-A03003-15



            Q. After he pulled away and started turning towards
            the one-way street, … [w]hat lights were on and
            what lights were off?

            A. When he applied the brake, all of them turned
            on. When he started to excel, the center brake light
            and the passenger’s side brake light had turned off,
            and the driver’s side brake light had remained on.

                                          …

            Q. … When you saw the fact that the … light
            remained on, what were you thinking at the that
            time?

            A. I was thinking it was an equipment violation[,]
            and I had a reason to stop the vehicle.

N.T., 2/11/14, a 6, 8-9.

      Instantly, Officer Berry articulated the reason for the traffic stop was

that one of Appellant’s brake lights remained on while the car accelerated,

and he believed this to be an equipment violation.        Id.   Section 4303

delineates the requirements for lighting equipment on motor vehicles and

provides, in relevant part, as follows.

            § 4303. General lighting requirements

                                          ...

            (b) Rear lighting.—Every vehicle operated on a
            highway shall be equipped with a rear lighting
            system including, but not limited to, rear lamps, rear
            reflectors, stop lamps and license plate light, in
            conformance with regulations of the department. If
            a vehicle is equipped with a centrally mounted rear
            stop light, a decal or overlay may be affixed to the
            centrally mounted rear stop light if the decal or


                                      -8-
J-A03003-15


            overlay meets all applicable State and Federal
            regulations.

75 Pa.C.S.A. § 4303(b).    The Pennsylvania Department of Transportation

Regulations provides further detail on motor vehicle lighting requirements.

            § 153.4. Requirements.

                                      …

            (e) Special wiring requirements.       Special wiring
            requirements shall be as follows:

                                      …

                  (4) The stop lamps on each vehicle shall be
            activated upon application of the service brakes.

67 Pa. Code § 153.4(e)(4).        Section 175 includes additional lighting

requirements.

            § 175.66 Lighting and electrical systems

                                      …

            (e) Other required lamps. A vehicle specified under
            this subchapter shall have at least one red stop lamp
            on each side of rear of vehicle, which shall be
            illuminated immediately upon application of the
            service brake.

67 Pa. Code § 175.66(e).

      Appellant does not dispute that Officer Berry observed one of his three

brake lights illuminated while the car was accelerating.         See generally

Appellant’s Brief at 1-12. Rather, Appellant argues that Officer Berry’s

“testimony did not show a violation of this provision as both rear lamps

illuminated upon application of the service brake.” Id. at 10.

                                    -9-
J-A03003-15


      In Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super. 2010),

a police officer effectuated a traffic stop after observing that a vehicle’s

center brake light did not illuminate when the appellant applied his brakes.

Muhammed, supra at 903. The two fender brake lights, the officer stated,

appeared to be in proper working condition. Id. This Court concluded that

“[a]lthough the center brake light was not mandatory equipment on

Appellant’s vehicle, the vehicle was so equipped; thus, the light can be held

to the same standards and requirements as the other brake lights.”        Id.

Likewise, Appellant’s vehicle was equipped with three brake lights, and

therefore, all three brake lights are held to comply with Section 4303(b) and

the relevant regulations. See id.

      We acknowledge that in Muhammed the challenged violation involved

a brake light that did not activate upon application of the brake whereas in

the instant case, the challenged violation involves a brake light that did not

extinguish upon Appellant’s car accelerating. Appellant’s argument rests, in

large part, on the observation that his brake lights indeed “illuminated upon

application of the service brake.”   Appellant’s Brief at 10. However, “[t]he

primary purpose of the Motor Vehicle Code and its amendments is to protect

and promote public safety and property within the            Commonwealth.

Therefore, every provision of the Code should be interpreted in light of that

intent.”   Commonwealth v. DeFusco, 549 A.2d 140, 142 (Pa. Super.

1988) (citations omitted). Undoubtedly, the regulations specifying the rear


                                     - 10 -
J-A03003-15


lighting requirements on motor vehicles pursuant to Section 4303(b) require

that brake lights must illuminate immediately upon application of the brake.

67 Pa. Code §§ 153.4(e)(4) and 175.66(e), respectively. It follows that the

purpose of such requirement is to alert other motorists of a vehicle’s slowing

pace in order to prevent accidents.            Appellant implicitly argues that brake

lights that remain illuminated after a vehicle begins to accelerate, i.e. when

the vehicle is not braking, does not violate the Motor Vehicle Code as long as

the brake lights illuminate upon initial application of the brakes.              See

Appellant’s Brief at 10. Such interpretation would be inconsistent with the

intent of the Motor Vehicle Code to protect and promote public safety and

property within the Commonwealth.              See DeFusco, supra. A brake light

that remains illuminated when the brake is not activated does not provide

other motorists with an accurate indication of the vehicle’s speed or change

thereof.

       Based on the foregoing discussion, we conclude the trial court did not

err when it found Officer Berry was within his authority to initiate a traffic

stop for a violation of the motor vehicle code.6 See Gary, supra; Feczko,

____________________________________________


6
  We note the trial court found Officer Berry was only required to possess
reasonable suspicion in order to effectuate the traffic stop. Trial Court
Opinion, 5/6/14, at 2-3. Although we conclude the appropriate level of
suspicion is probable cause, this does not affect our disposition because we
conclude Officer Berry possessed probable cause to initiate the traffic stop.
As an appellate court, we may affirm the trial court on any legal basis
supported by the record. Commonwealth v. Charleston, 16 A.3d 505,
(Footnote Continued Next Page)


                                          - 11 -
J-A03003-15


supra. Accordingly, the trial court’s June 24, 2014 judgment of sentence is

affirmed.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2015




                       _______________________
(Footnote Continued)

529 n.6 (Pa. Super. 2011) (citation omitted), appeal denied, 30 A.3d 486
(Pa. 2011).



                                           - 12 -
