J-S04024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHARLES EMORY SMITH,

                            Appellant                 No. 724 MDA 2014


        Appeal from the Judgment of Sentence entered April 1, 2014,
           in the Court of Common Pleas of Cumberland County,
           Criminal Division, at No(s): CP-35-CR-0000688-2013


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED FEBRUARY 09, 2015

       Charles Emory Smith, (“Appellant”), appeals from the judgment of

sentence imposed after the trial court convicted him of two counts of driving

under the influence, one count of habitual offender, one count of driving

while his operating privileges were suspended, one count of unlawful

activities, and one count of operating a vehicle without an official certificate

of inspection.1 We affirm.

       The trial court summarized the pertinent facts and procedural history

as follows:

____________________________________________


1
 75 Pa.C.S.A. §§ 3802(a)(1), (a)(2), 6503.1, 1543(b)(1), 4107(b)(2) and
4703(a).




*Retired Senior Judge assigned to the Superior Court.
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            On Sunday, November 4, 2012, at approximately 1:30
      a.m., [Appellant] was travelling eastbound on Trindle Road in
      Cumberland County, Pennsylvania. Trooper Michael Burns was
      travelling westbound on Trindle Road that night. Trooper Burns
      has been a member of the Pennsylvania State Police since 1999
      and has extensive training in DUI recognition, investigation, and
      enforcement. Trooper Burns has previously made over 50 DUI
      arrests in this area of Trindle Road.

            As he was travelling west on Trindle Road, Trooper Burns
      observed that [Appellant’s] vehicle had illuminated windshield
      wiper washer nozzles on the hood of the vehicle. Trooper Burns
      knew that the illuminated windshield wiper washer nozzles
      constituted an equipment violation under the Pennsylvania
      Vehicle Code and the Pennsylvania Vehicle Inspection
      Requirements.      Trooper Burns also knew that illuminated
      windshield wiper washer nozzles are not standard equipment on
      a 1990 Mazda Miata. Trooper Burns then immediately turned his
      patrol vehicle around and proceeded eastbound behind
      [Appellant’s] vehicle with the intent to stop [Appellant’s] vehicle
      and cite him for the equipment violation.

             As he began following [Appellant], Trooper Burns observed
      the vehicle continuously drift from side to side in his lane of
      traffic. [Appellant] did not cross the center line or the fog line,
      but he would drive onto the lines.            On one occasion,
      [Appellant’s] vehicle drifted toward the path of an oncoming
      westbound vehicle.      This incident was recorded on Trooper
      Burns’ motor vehicle recorder. Trooper Burns then made a stop
      of [Appellant’s] vehicle and [Appellant] was subsequently
      charged with the above-captioned offenses.

            [Appellant] filed an Omnibus Pretrial Motion on July 26,
      2013. [Appellant] sought to suppress any evidence obtained
      from the traffic stop, arguing that there was not probable cause
      or reasonable suspicion to effectuate the traffic stop. A hearing
      on [Appellant’s] Omnibus Pretrial Motion was held on October
      24, 2013. [Appellant’s] motion was denied on November 5,
      2013.

Trial Court Opinion, 6/4/14, at 2-3 (footnote omitted).




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      A non-jury trial commenced on February 25, 2014, at the conclusion of

which the trial court found Appellant guilty of the aforementioned crimes.

On April 1, 2014, the trial court sentenced Appellant to a term of

imprisonment of 13 to 33 months. This appeal followed. Appellant complied

with the trial court’s directive to file a concise statement of errors

complained of on appeal, and on June 4, 2014 and June 10, 2014, the trial

court entered two opinions pursuant to Pa.R.A.P. 1925(a), separately

addressing Appellant’s two claims.

      Appellant presents the following issues for our review:


      I.    WHETHER A NEW TRIAL IS WARRANTED AFTER DENIAL OF
            A SUPPRESSION MOTION WHERE THE COMMONWEALTH
            DID NOT ESTABLISH DURING THE HEARING THE
            ELEMENTS OF THE OFFENSE WHICH FORMS THE BASIS OF
            THE TRAFFIC STOP?

      II.   WHETHER DESPITE A SUFFICIENTLY LENGTHY DRIVING
            RECORD TO BE CONVICTED AS A MISDEMEANOR 2
            “HABITUAL OFFENDER,” THE TRIAL COURT ERRED BY SO
            CONVICTING APPELLANT WHEN HE HAD NOT BEEN
            DESIGNATED ADMINISTRATIVELY AS SUCH BY PENNDOT
            PRIOR TO THE INSTANT ARREST?

Appellant’s Brief at 6.

      In his first issue, Appellant challenges the denial of his suppression

motion.

      Our standard of review of a denial of suppression is whether the
      record supports the trial court's factual findings and whether the
      legal conclusions drawn therefrom are free from error. Our
      scope of review is limited; 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

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       as a whole. 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.


Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)

(citations omitted). “It is within the suppression court's sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

to their testimony.    The suppression court is free to believe all, some or

none    of   the   evidence   presented    at   the   suppression   hearing.”

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003)

(citations omitted).   However, the suppression court's conclusions of law,

which are not binding on an appellate court, are subject to plenary review.

Commonwealth v. Johnson, 969 A.2d 565, 567 (Pa. Super. 2009)

(citations omitted).

       Here, Appellant argues that the trial court erred in denying his

suppression motion because the Commonwealth failed to meet its burden of

proving, by a preponderance of the evidence, that Appellant violated the

Vehicle Code. Appellant’s Brief at 14-25. Trooper Burns stopped Appellant

for a suspected violation of 67 Pa.Code § 175.66(h), which pertains to

vehicle lighting and electrical systems, and precludes certain ornamental

lamps, unless they are available as “original equipment” on the vehicle.

Appellant argues that the Commonwealth failed to demonstrate that the

illuminated windshield wiper nozzles on Appellant’s vehicle were not “original



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equipment.” Appellant’s Brief at 14-15. Appellant asserts that, absent any

evidence as to whether or not the illuminated nozzles were an original

component of Appellant’s car, the Commonwealth failed to demonstrate that

Trooper Burns possessed probable cause to believe that Appellant had

violated 67 Pa.Code § 175.66(h). We disagree.

       In order to effectuate a valid traffic stop, Trooper Burns was required

to possess probable cause to believe that a Vehicle Code violation had

occurred.2     “There is a clear distinction between what is required for

purposes of establishing probable cause for a warrantless arrest or search

and what is required for proving guilt. The arresting officer need not have

had in hand evidence which would suffice to convict as it is only the

probability, and not a prima facie showing of criminal activity, that is the

standard for justifying arrest. The probable cause necessary to support an

arrest . . . cannot demand the same strictness of proof as the accused's guilt

upon a trial...”     Commonwealth v. Anderson, 302 A.2d 504, 506 (Pa.

Super. 1973).



____________________________________________


2
  See Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)
(en banc) (“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.’”).



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      In the present case, Trooper Burns testified that based on his training

and experience, he believed that illuminated wiper nozzles were not original

equipment on Appellant’s 1990 Mazda Miata, and that the illuminated

nozzles violated the Pennsylvania regulations pertaining to ornamental

lamps. N.T., 10/24/13, at 8, 14.    See 97 Pa.Code § 175.66(h). Trooper

Burns testified that in the past he had issued citations with regard to

violations of the “ornamental lamps” regulation “well in excess of a dozen

times”, and that he believed Appellant’s illuminated nozzles constituted such

a violation.   We agree with the trial court that under the totality of the

circumstances, the facts articulated by Trooper Burns were sufficient to

provide probable cause to support the traffic stop.      Although Appellant

argues that Trooper Burns presented no direct evidence to confirm that the

illuminated wiper nozzles were not original equipment on Appellant’s 1990

Mazda Miata, we reiterate that Trooper Burns was not required to provide

evidence sufficient to sustain a conviction, but only to establish probable

cause to believe that a Vehicle Code violation was occurring.      “Probable

cause means only the probability and not a prima facie showing of criminal

activity [and] is less than evidence which will justify a conviction.”

Commonwealth v. Canning, 587 A.2d 330, 332 (Pa. Super. 1991)

(emphasis and citations omitted).      Because our review of the record

supports the trial court’s determination that Trooper Burns possessed the

requisite probable cause to believe that Appellant was violating the


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“ornamental lamps” prohibition to justify the stop of Appellant’s vehicle, we

find no error in the trial court’s denial of Appellant’s suppression motion.

      Appellant next argues that the trial court erred when it found him

guilty of violating 75 Pa.C.S.A. § 6503.1 pertaining to habitual offenders,

when he had not been designated administratively as a habitual offender by

the Pennsylvania Department of Transportation (“PennDot”) prior to trial.

Appellant’s Brief at 26-28. Specifically, Appellant argues that the trial court

was without authority to convict him under § 6503.1 because it was solely

the function of PennDot to designate him as a “habitual offender”, and the

trial court could not usurp PennDot’s authority. Id. We find no merit to this

claim.

      Appellant was convicted under 75 Pa.C.S.A. § 6503.1, which provides:

      A habitual offender under section 1542 (relating to revocation of
      habitual offender's license) who drives a motor vehicle on any
      highway or trafficway of this Commonwealth while the habitual
      offender's operating privilege is suspended, revoked or canceled
      commits a misdemeanor of the second degree.


Section 1542 of the Vehicle Code, which defines the term “habitual offender”

reads in pertinent part:

      (a)   General rule.--The department shall revoke the operating
            privilege of any person found to be a habitual offender
            pursuant to the provisions of this section. A “habitual
            offender” shall be any person whose driving record, as
            maintained in the department, shows that such person has
            accumulated the requisite number of convictions for the
            separate and distinct offenses described and enumerated
            in subsection (b) committed after the effective date of this
            title and within any period of five years thereafter.

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      (b)   Offenses enumerated.--Three convictions arising from
            separate acts of any one or more of the following offenses
            committed by any person shall result in such person being
            designated as a habitual offender:

            (1)   Any violation of Subchapter B of Chapter 37 (relating
                  to serious traffic offenses).

            (1.1) Any violation of Chapter 38 (relating to driving after
                  imbibing alcohol or utilizing drugs) except for
                  sections 3808(a)(1) and (b) (relating to illegally
                  operating a motor vehicle not equipped with ignition
                  interlock) and 3809 (relating to restriction on
                  alcoholic beverages).

            (1.2) Any violation of section 1543(b)(1.1) (relating to
                  driving while operating privilege is suspended or
                  revoked).

            (2)   Any violation of section 3367 (relating to racing on
                  highways).

            (3)   Any violation of section 3742 (relating to accidents
                  involving death or personal injury).

            (3.1) Any violation of section 3742.1 (relating to accidents
                  involving death or personal injury while not properly
                  licensed).

            (4)   Any violation of section 3743 (relating to accidents
                  involving damage to attended vehicle or property).

(emphasis added).

      Appellant does not argue that he lacks the prior convictions necessary

to designate him as a habitual offender.      Rather, Appellant argues that

because, at the time of trial, PennDot had not revoked his license for being a

habitual offender under section 1542, the trial court was precluded from

convicting him as a habitual offender under section 6503.1.


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      Section 1542 defines a habitual offender as “any person whose driving

record, as maintained in the department, shows that such person has

accumulated the requisite number of convictions....”     Here, the trial court

found, and Appellant does not dispute, that he incurred the requisite number

of prior convictions. As the trial court explained:


            [Regardless of] whether [Appellant] was labeled, notified,
      declared or forced to wear a scarlet “H.O.,” [Appellant’s] 22 page
      driving record makes it abundantly clear that [Appellant] was, is,
      and perhaps ever shall be an habitual offender.

                                      ***

         [Appellant] was labeled, designated and notified that he was
      an habitual offender five times under the 1976 statute. After the
      statute was amended in 1994 (which essentially reset the clock)
      [Appellant] incurred the following convictions from “separate
      acts” within a five year period:

         1. Driving Under the Influence: violation date – June
            16, 2000; conviction date – November 7, 2001.
         2. Driving Under the Influence:       violation date –
            September 9, 2000; conviction date – November 7,
            2001.
         3. Driving Under Suspension (DUI related): violation
            date – October 19, 2005; conviction date – October
            21, 2005.
         4. Driving Under the Influence: violation date – May
            22, 2004; conviction date – July 17, 2006.

             Noteworthy, [Appellant] received an additional conviction
      for Driving Under Suspension (DUI related), on September 21,
      2011, which, pursuant to § 1542(e) resulted in an additional
      period of suspension for two years. This final suspension is
      effective on March 7, 2029.

           If [Appellant] has no further infractions, he will be eligible
      to receive his license in March of 2031, approximately six


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      months shy of his 80th birthday.       Lest anyone celebrate
      prematurely, we note that [Appellant] has never been deterred
      from driving by the mere fact that he has been unlicensed.
      Thus, we hold out no hope that any sentence imposed by this
      court or suspension imposed by the Pennsylvania Department of
      Transportation will have any impact on [Appellant’s] driving
      behaviors.

            [Pursuant to 75 Pa.C.S.A. § 6503.1] it is not necessary ...
      for the offense to occur during a period when his license is
      suspended for being an habitual offender.           Rather, the
      Commonwealth need prove merely that [Appellant] operated a
      motor vehicle in the Commonwealth while his license was
      suspended, revoked, or cancelled for any reason, and that he did
      so after racking up the necessary convictions under § 1542(b).
      We are satisfied that the Commonwealth met this burden.

Trial Court Opinion, 6/10/14, at 1-3.

      We agree with the trial court that Appellant met the requirements for

designation as a habitual offender as defined in Section 1542 by virtue of

his prior convictions. See Commonwealth v. Raven, 97 A.3d 1244, 1252

(Pa. Super. 2014) (“A conviction for habitual offenders requires the

Commonwealth to demonstrate that a person has accumulated three

separate convictions for serious traffic offenses within a five-year period.”).

We thus find no error by the trial court.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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