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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOEY BATISTA WHITE

                            Appellant                  No. 276 EDA 2015


            Appeal from the Judgment of Sentence December 4, 2014
                In the Court of Common Pleas of Wayne County
              Criminal Division at No(s): CP-64-CR-0000480-2013


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

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 02, 2015

        Appellant, Joey Batista White, appeals from the December 4, 2014

aggregate judgment of sentence of one to five years’ imprisonment, imposed

after being convicted at a bench trial of driving under the influence (DUI) –

general impairment, DUI - highest rate, and two further violations of the

Motor Vehicle Code: turning movements and required signals, and careless

driving.1

        The relevant facts and procedural history, as gleaned from the certified

record, are as follows.       On August 10, 2013, Appellant was arrested and

charged with the aforementioned offenses. On April 4, 2014, Appellant filed
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), 3334, and 3714, respectively.
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an omnibus pre-trial motion requesting, inter alia, suppression of all

evidence seized as a result of the initial traffic stop on the basis that said

stop was not supported by probable cause.          Appellant’s Omnibus Pre-Trial

Motion, 4/4/14, at ¶¶ 26-29.           On June 12, 2014, the trial court held a

hearing on Appellant’s motion. Thereafter, on July 1, 2014, the trial court

denied Appellant’s motion and a non-jury trial was scheduled. On October

15, 2014, a one day bench trial was held at the conclusion of which

Appellant was found guilty of all charges. On December 4, 2014, the trial

court sentenced Appellant to one to five years of imprisonment.

       On December 15, 2014, Appellant filed a timely post-sentence

motion.2    On December 18, 2014, the trial court denied Appellant’s post-

sentence motion. Thereafter, on January 16, 2015, Appellant filed a timely

notice of appeal. On January 20, 2015, the trial court ordered Appellant to

file a concise statement of errors complained of on appeal in accordance with

Pennsylvania Rule of Appellate Procedure 1925(b). On February 10, 2015,

Appellant timely complied. Thereafter, on March 3, 2015, the trial court filed

its Rule 1925(a) opinion.

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

____________________________________________


2
  The expiration of Appellant’s 10-day period to file a timely post-sentence
motion fell on Sunday December 14, 2014; therefore, his post-sentence
motion filed on December 15, 2014 was timely. See 1 Pa.C.S.A. § 1908
(providing that when the last day of a calculated period of time falls on a
Saturday or Sunday, such days shall be omitted from the computation).



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            [I.] Whether the trial court erred, as a matter of
            law, in finding sufficient probable cause to justify the
            underlying traffic stop of Appellant’s vehicle for
            failure to utilize a turn signal; where the trial court
            made      a     clear   and     unambiguous      factual
            determination,      based     upon    a    substantially
            undisputed record, that the use of a turn signal was
            not required at that particular junction of the road?

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.

            [An appellate court’s] 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.           Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth 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
            suppression court’s factual findings are supported by
            the record, [the appellate court is] bound by [those]
            findings and may reverse only if the court’s legal
            conclusions are erroneous. Where … the appeal of
            the determination of the suppression court turns on
            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to [] plenary review.

Commonwealth v. Garibay, 106 A.3d 136, 138-139 (Pa. Super. 2014) (en

banc), quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)




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(internal citations and quotation marks omitted), cert. denied, 562 U.S. 832

(2010).3

       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.”        Id. at 139 (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.           75 Pa.C.S.A. § 6308(b).

____________________________________________


3
  Our Supreme Court has recently clarified our scope of review when
considering a challenge to a trial court’s suppression ruling is limited to the
suppression hearing record, and “it is inappropriate to consider trial evidence
as a matter of course, because it is simply not part of the suppression
record, absent a finding that such evidence was unavailable during the
suppression hearing.” In re L.J., 79 A.3d 1073, 1085. Because prior cases
held that a reviewing court could consider the trial record in addition to the
suppression record, the Supreme Court determined that the more limited
scope announced in In re L.J. would apply prospectively to cases where the
suppression hearing occurred after October 30, 2013. Id. at 1088-1089.
Instantly, the subject suppression hearing was held on June 12, 2014.
Accordingly, our scope of review is limited to the suppression hearing record.




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“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. Instantly, Officer Felsman initiated a

traffic stop on the basis that the vehicle Appellant was operating had “made

a left hand turn without signaling[]” in violation of Section 3334(a) of the

Motor Vehicle Code. N.T., 6/12/14, at 4. This Court has held that probable

cause is required for a traffic stop made under Section 3334(a) of the Motor

Vehicle Code. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.

2013), appeal denied, 79 A.3d 1096 (Pa. 2013).

      Therefore, at the suppression hearing, Officer Felsman 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).

      Appellant argues the trial court “made a finding of fact that the portion

of the road in question here does not constitute a turn in which a turn signal

is required pursuant to the Motor Vehicle Code.”       Appellant’s Brief at 9.

Specifically, the trial court found that Appellant “was not making a turn, he

was merely following the continual path of the roadway as it curved … and

the lack of any evidence of signage indicating that a motorist is leaving


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Church Street and turning onto Park Street leads [the trial c]ourt to conclude

that the part of the road in question here does not constitute a turn in which

a turn signal is required pursuant to the Motor Vehicle Code.” Suppression

Opinion, 7/1/14, at 4. As such, Appellant argues that because the sole basis

of Officer Felsman’s stop was Appellant’s failure to use his turn signal, the

stop resulted in an illegal seizure and subsequent arrest. Appellant’s Brief at

9.

      We begin by looking at the trial court’s Rule 1925(a) opinion clarifying

its holding in its suppression opinion.

            Th[e trial c]ourt acknowledges that “reasonable
            suspicion” was not the appropriate standard in this
            case, however, Trooper Felsman’s traffic stop of
            [Appellant] remains justified under the appropriate
            standard of “probable cause.”

                   In determining when a traffic stop is justified,
            our Supreme Court has stated that an officer must
            “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.”     Com[monwealth] v. Spieler, 887 A.2d
            1271, 1275 (Pa. Super. Ct. 2005). “Probable cause
            does not require certainty, but rather exists when
            criminality is one reasonable inference, not
            necessarily even the most likely inference.” Id. An
            actual violation of the Code, therefore, does not need
            to be established to validate a vehicle stop. Id. An
            officer only needs a “reasonable and articulable
            belief” that there has been a violation of Code based
            on the specific facts possessed by him at the time of
            the stop. Id.

                In Com[monwealth] v. Brown, [64 A.3d
            1101 (Pa. Super. 2013)] a Pennsylvania State

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            Trooper observed the Defendant make a left turn
            from Richhill Street onto Greene Street without using
            a turn signal. Brown, [supra at] 1103[]. Upon a
            roadway, under 75 Pa. C.S.A. § 3334(a), “no person
            shall turn a vehicle or move from one traffic lane to
            another or enter the traffic stream from a parked
            position unless and until the movement can be made
            with reasonable safety nor without giving an
            appropriate signal….” Based upon this statute, the
            Court in Brown held that since the Trooper testified
            that he personally observed the defendant turn his
            vehicle from one street to another without using his
            turn signal, he unquestionably possessed facts to
            warrant belief by any reasonable person that
            Defendant violated the vehicle code.         Brown,
            [supra] at 1105-06.

                   In the present case, Trooper Felsman had a
            similar “reasonable and articulable belief” that there
            had been a violation of Code. For instance, similar
            to the Trooper’s testimony in Brown, Trooper
            Felsman testified that he observed [Appellant] turn
            his vehicle from one street to another without using
            his turn signal. More specifically, Trooper Felsman
            testified that: (1) he observed [Appellant] turn left
            onto Park Street from the right-hand lane of Church
            Street without using his turn signal, (2) Park Street
            and Church Street come to a T-intersection, and (3)
            [Appellant] had the option to turn left or right onto
            Park Street. Trooper Felsman further testified that
            he was familiar with the Brown case at the time of
            the stop and believed it applied to the case at hand.
            The facts in this case, as the facts were in Brown,
            would unquestionably warrant belief by any
            reasonable person that [Appellant] violated the
            vehicle code. Therefore, the traffic stop at issue was
            valid. The Trial Court, therefore, did not abuse its
            discretion and commit reversible error by denying
            [Appellant]’s Omnibus Motion to Suppress Evidence.

Trial Court Opinion, 3/3/15, at 1-3.




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      In reviewing the trial court’s conclusion, we are guided by the United

States Supreme Court’s holding in Heien v. North Carolina, 135 S. Ct. 530

(2015). In Heien, the Court held a “mistake of law can nonetheless give

rise to the reasonable suspicion necessary to uphold the seizure under the

Fourth Amendment.” Id. at 534. Specifically, Heien was driving a vehicle

with one stop light out, which the officer believed was a violation of North

Carolina law. The trial court agreed and denied Heien’s motion to suppress,

however, the North Carolina Court of Appeals reversed “determin[ing] that a

single working brake light was all the law required.” Id.

      Upon review, the Supreme Court concluded “[i]t was … objectively

reasonable for an officer in Sergeant Darisse’s position to think that Heien’s

faulty right brake light was a violation of North Carolina law. And because

the mistake of law was reasonable, there was reasonable suspicion justifying

the stop.”   Id. at 540.   The Court stated that to qualify as a reasonable

mistake of law, it must be objectively reasonable. Id. at 539. A mistake of

law will be considered objectively reasonable where “the application of a

statute is unclear—however clear it may later become.”        Id.   As Justice

Kagan explained, “[i]f the statute is genuinely ambiguous, such that

overturning the officer’s judgment requires hard interpretive work, then the

officer has made a reasonable mistake. But if not, not.” Id. at 541 (Kagan,

J., concurring).




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      Here, the relevant statute, Section 3334(b), requires “[a]t speeds of

less than 35 miles per hour, an appropriate signal of intention to turn right

or left shall be given continuously during not less than the last 100 feet

traveled by the vehicle before turning.”       75 Pa.C.S.A. § 3334(b).       The

statute’s text contains no exceptions. Instantly, Officer Felsman, similar to

the officer in Heien, believed that a turn signal was necessary pursuant to

Section 3334 of the Motor Vehicle Code in order to effectuate a left turn onto

Park Street.   The trial court correctly observed “the Motor Vehicle Code is

silent on what constitutes a ‘turn’ and … minds can reasonably differ on

whether or not the intersection in question does constitute a turn[.]”

Suppression Court Opinion, 7/1/14, at 2. As in Heien, Officer Felsman was

incorrect.   However, in our view, it was objectively reasonable for him to

conclude that Section 3334(b) required a turn signal in an intersection such

as this one, where a driver has the option to turn right or left, but the flow of

traffic continues around to the left. As the trial court concluded, consistent

with Heien, this was an objectively reasonable mistake of law, as Section

3334(b)’s application to this intersection was “unclear.” See Heien, supra.

Accordingly, we conclude the trial court correctly decided that Officer

Felsman had probable cause to stop Appellant’s vehicle.

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

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

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


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Accordingly, the trial court’s December 14, 2014 judgment of sentence is

affirmed.

     Judgment of sentence affirmed.

     Justice Fitzgerald joins the memorandum.

     Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2015




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