J-S16018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellant

                       v.

SHAWN L. WOOD

                             Appellee                       No. 670 EDA 2015


                     Appeal from the Order February 5, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009244-2014


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                 FILED SEPTEMBER 09, 2016

       This is a Commonwealth appeal from the order1 entered February 5,

2015, in the Philadelphia County Court of Common Pleas, granting the

motion of appellee, Shawn L. Wood, to suppress the evidence recovered

during a traffic stop. When this appeal first appeared before this panel, we

determined the trial court erred in concluding the investigating officers were

not authorized to remove Wood from his vehicle and conduct a pat-down

search for weapons during the stop. See Commonwealth v. Wood, 2016

WL    1757247,      *3      (Pa.   Super.      2016)   (unpublished   memorandum).

Nevertheless, we remanded so the trial court could make additional findings
____________________________________________


1
  In its notice of appeal, the Commonwealth properly certified that “this
order terminates or substantially handicaps the prosecution of this case,” a
prerequisite to this Court’s jurisdiction pursuant to Pa.R.A.P. 311(d). Notice
of Appeal, 3/9/2015.
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as to whether or not the initial traffic stop of Wood’s vehicle was proper.

See id. The trial court subsequently complied with our directive and filed a

supplemental opinion, in which it concluded the traffic stop was illegal. For

the reasons below, we now affirm the order granting Wood’s suppression

motion.

      In its supplemental opinion, the trial court summarized the relevant

facts as follows:

             The evidence established that on July 13, 2014, at
      approximately 8:45 p.m., Philadelphia Officer Kyle Smith and his
      partner were on duty in the area of the 2000 block of 60 th
      Street. Officer Smith testified that at that time and place he
      spotted a 2004 white Chevy Silverado traveling north in the
      southbound lane. Officer Smith’s partner signaled the driver to
      let him know he was on the wrong side of the road by flashing
      his lights once. According to Officer Smith, the driver did not
      correct his lane of travel so Officer Smith’s partner activated the
      overhead lights and pulled the vehicle over for the sole reason of
      driving on the wrong side of the road.

             Contrary to Officer Smith’s testimony, Jodi-Lyn Lowry
      testified that she and [Wood] were headed northbound,
      attempting to make a left-hand turn down a one-way street and
      they never traveled on the wrong side of the road. According to
      Ms. Lowry, a police car was headed southbound so they stopped
      to allow the officers to go by before [] Wood made the turn
      because she stated two cars could not fit.1 According to Ms.
      Lowry, they waved the officer forward before making the left-
      hand turn. The police flashed their lights once. Thinking they
      were being giv[en] the right-[of]-way, [Wood] started to make
      the turn when the police flashed their lights completely. On
      cross-examination, Ms. Lowry testified that at no time was
      [Wood’s] truck traveling in the wrong lane of traffic. They were
      just attempting to make a left-hand turn.

            [Wood] testified that his work truck is bigger than usual;
      that it is like driving a U-haul. He stated that he was driving
      from his friend’s house near 60th Street to go to the store. When


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     he got near where he needed to make a left turn to park, he
     pulled over a little bit to let a car go by. He saw the police car
     behind the car he had just let go by and waved at the police car
     to go before he made his turn; the police car flashed their lights
     at him once. Thinking he was being given the right-[of]-way, he
     went to turn and was about half-way through the turn when the
     police put the lights on completely.
     __________
        1
          Ms. Lowry described [Wood’s] truck as “pretty big” with
        solid work tool containers on each side which made the
        truck bigger than a normal truck.

Trial Court Supplemental Opinion, 7/19/2016, at 2-3 (record citations

omitted).

     After Wood was stopped, Officer Smith directed him to step out of his

vehicle, and asked him if there was anything in the vehicle of which the

officer should be aware.   See Wood, supra, 2016 WL 1757247, at *1.

Wood responded by telling the officer he had a gun in the glove box.      He

was subsequently arrested and charged with two violations of the Uniform

Firearms Act. See 18 Pa.C.S. §§ 6106(a) and 6108.

     Wood filed a pre-trial suppression motion on February 5, 2015,

arguing the traffic stop was unlawful because the police did not have

reasonable suspicion or probable cause to believe he was engaged in

criminal activity. See Motion to Suppress Evidence, 2/5/2015, at ¶ 12. At

the conclusion of a suppression hearing conducted on February 15, 2015,

the trial court granted Wood’s motion to suppress. Notably, the court never




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decided whether the initial traffic stop was legal;2 rather, it found Officer

Smith had no grounds to remove Wood from his vehicle.            See Trial Court

Opinion, 6/16/2015, at 6 (“Here, the Commonwealth [] failed to provide

specific facts by which to support a finding of reasonable suspicion that

criminal activity was afoot and that [Wood] had to be removed from the

vehicle.”).

       When the appeal first appeared before this panel, we agreed with the

Commonwealth’s contention that the officer did not need any reasonable

suspicion of criminal activity to order Wood from his vehicle, assuming the

traffic stop was valid. See Wood, supra, 2016 WL 1757247, at *3 (stating

“it is well-settled that ‘an officer conducting a valid traffic stop may order the

occupants of a vehicle to alight to assure his own safety.’”), quoting

Commonwealth v. Reppert, 814 A.2d 1196, 1202 (Pa. Super. 2002) (en

banc ) (emphasis supplied and citations omitted). Further, we found Officer

Smith’s subsequent search of Wood’s truck was proper based upon Wood’s

own statement to the officer that he had a gun in the glove box. Id.

       Nevertheless, we recognized “our determination of whether Officer

Smith’s actions violated Wood’s Fourth Amendment rights [was] dependent

upon the legality of the initial traffic stop.”      Wood, supra, 2016 WL


____________________________________________


2
  See N.T., 2/5/2015, at 49 (the court stated: “I find that whether or not
the officer had the right to stop the vehicle is not necessary for me to
determine for this motion to suppress.”).



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1757247, at *3. Therefore, we remanded the case to the trial court to make

additional findings and file a supplemental opinion because (1) the court

specifically stated it had not determined “whether or not the officer had the

right to stop the vehicle,” and (2) that finding necessarily involved a

credibility determination.   Id.   The trial court complied with our directive,

and the issue is now before this panel for review.

      When considering a trial court’s suppression ruling, we must determine

“whether the record supports the trial court’s findings of fact and whether

the trial court erred in its legal conclusions.” Commonwealth v. Enick, 70

A.3d 843, 845 (Pa. Super. 2013) (citation omitted), appeal denied, 85 A.3d

482 (Pa. 2014). If the court’s factual findings are supported by the record,

      we are bound by those findings. Where, as here, it is the
      Commonwealth who is appealing the decision of the suppression
      court, we must consider only the evidence of the defendant's
      witnesses and so much of the evidence for the prosecution as
      read in the context of the record as a whole remains
      uncontradicted.

Commonwealth v. Ibrahim, 127 A.3d 819, 822 (2015) (quotation

omitted), appeal denied, 138 A.3d 3 (Pa. 2016). Moreover, we emphasize

“it is exclusively within the province of the trial court to determine the

credibility of the witnesses and the weight to be accorded their testimony.”

Commonwealth v. Gallagher, 896 A.2d 583, 584 (Pa. Super. 2006)

(quotation omitted).

      A police officer’s statutory authority to stop a motor vehicle is codified

in Section 6308 of the Motor Vehicle Code:


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     (b) Authority of police officer.--Whenever a police officer is
     engaged in a systematic 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.

75 Pa.C.S. § 6308(b).

     In interpreting this subsection, the courts of this Commonwealth have

concluded that a vehicle stop based solely on reasonable suspicion of a

motor vehicle violation “must serve a stated investigatory purpose … [since,

i]n effect,   the   language   of Section 6308(b)—‘to    secure   such other

information as the officer may reasonably believe to be necessary to enforce

the provisions of this title’—is conceptually equivalent with the underlying

purpose of a Terry stop.” Commonwealth v. Feczko, 10 A.3d 1285, 1291

(Pa. Super. 2010) (en banc), appeal denied, 25 A.3d 257 (Pa. 2011). The

Feczko panel further explained:

           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.] Gleason, 785 A.2d [983,] 989 [Pa.
     2001)] (citation omitted).    See also [Commonwealth v.]
     Chase, 960 A.2d [108,] 116 [(Pa. 2008)] (reaffirming
     Gleason’s probable cause standard for non-investigative
     detentions of suspected Vehicle Code violations).

Id. (emphasis in original and footnote omitted).



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      In considering the present case, we must first determine whether

Officer Smith needed probable cause or reasonable suspicion to stop Wood’s

vehicle. In Commonwealth v. Salter, 121 A.3d 987 (Pa. Super. 2015), a

panel of this Court outlined the parameters for this determination as follows:

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not
      necessary to stop the vehicle to establish that a violation
      of the Vehicle Code has occurred, an officer must possess
      probable cause to stop the vehicle. Where a violation is
      suspected, but a stop is necessary to further investigate whether
      a violation has occurred, an officer need only possess reasonable
      suspicion to make the stop. Illustrative of these two standards
      are stops for speeding and DUI. If a vehicle is stopped for
      speeding, the officer must possess probable cause to stop the
      vehicle. This is so because when a vehicle is stopped, nothing
      more can be determined as to the speed of the vehicle when it
      was observed while traveling upon a highway. On the other
      hand, if an officer possesses sufficient knowledge based upon
      behavior suggestive of DUI, the officer may stop the vehicle
      upon reasonable suspicion of a Vehicle Code violation, since a
      stop would provide the officer the needed opportunity to
      investigate further if the driver was operating under the
      influence of alcohol or a controlled substance. Compare []
      Enick, [supra,] 70 A.3d [at] 846 [] (probable cause required to
      stop for failure to drive on right side of roadway),
      Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super.
      2013) (probable cause required to stop for failure to use turn
      signal), Commonwealth v. Busser, 56 A.3d 419, 424 (Pa.
      Super. 2012) (probable cause required to stop for failure to yield
      to emergency vehicles), and Feczko, 10 A.3d at 1291 (probable
      cause required to stop for failure to maintain lanes), with
      Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89, 96–97
      (2011) (reasonable suspicion sufficient to stop to investigate
      front windshield obstruction), Commonwealth v. Bailey, 947
      A.2d 808, 812–14 (Pa. Super. 2008) (reasonable suspicion
      sufficient to stop to investigate faulty exhaust system or
      muffler); see also Commonwealth v. Landis, 89 A.3d 694,
      703 (Pa. Super. 2014) (noting that where trooper stopped


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        motorist for failing to drive within a single lane—and not to
        investigate possible DUI—he needed probable cause to stop).

Id. at 993 (emphasis supplied).

        Here, Officer Smith testified he observed Wood “traveling northbound

in a southbound lane[,]” driving “in the wrong lane” of traffic.               N.T.,

2/5/2015, at 6.3         Therefore, the officer suspected Wood committed a

violation of 75 Pa.C.S. § 3301(a)(5),4 which mandates “a vehicle shall be

driven upon the right half of the roadway except … [w]hen making a left turn

as provided in sections 3322 (relating to vehicle turning left) and 3331

(related to required position and method of turning).” 5 Because it was not

necessary to stop Wood’s vehicle to determine whether he violated Section
____________________________________________


3
  See also id. at 8 (“He was coming northbound in the southbound lane.”);
13 (“He’s traveling northbound in the southbound lane; I’m driving
southbound; which means he’s driving on the wrong side of the road.”).
4
    Officer Smith did not charge Wood with any summary vehicle violations.
5
 Section 3322 provides that “[t]he driver of a vehicle intending to turn left
within an intersection … shall yield the right-of-way to any vehicle
approaching from the opposite direction which is so close as to constitute a
hazard.” 75 Pa.C.S. § 3322. Further, Section 3331 states, in relevant part:

        (b) Left turn.--The driver of a vehicle intending to turn left shall
        approach the turn in the extreme left-hand lane lawfully
        available to traffic moving in the direction of travel of the
        vehicle. Whenever practicable, the left turn shall be made to the
        left of the center of the intersection and so as to leave the
        intersection or location in the extreme left-hand lane lawfully
        available to traffic moving in the same direction as the vehicle on
        the roadway being entered.

75 Pa.C.S. § 3331.




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3301(a),6 we find Officer Smith needed to possess probable cause that a

violation occurred in order to stop Wood. Salter, supra, 121 A.3d at 993.

See also Enick, supra, 70 A.3d at 846 (police officer needed probable

cause to stop vehicle for suspected violation of Section 3301, because stop

would serve no investigatory purpose).

       In determining whether probable cause exists,

       we must consider “whether the facts and circumstances which
       are within the knowledge of the officer at the time of the arrest,
       and of which he has reasonably trustworthy information, are
       sufficient to warrant a man of reasonable caution in the belief
       that the suspect has committed or is committing a crime.”

Ibrahim, supra, 127 A.3d at 824 (quotation omitted).

       In its supplemental opinion, the trial court found, based on the

testimony of Lowry, that Officer Smith did not have probable cause to stop

Wood for a violation of Section 3301. The court opined:

       [T]he court finds Ms. Lowry’s testimony credible – that [Wood]
       was attempting to make a left-hand turn; an exception under
       subsection (a)(5).     If there was a momentary and minor
       violation of § 3301, it was insufficient to establish probable
       cause for a vehicle stop.

Trial Court Supplemental Opinion, 7/19/2016, at 3.            In making this

determination, the trial court necessarily credited Lowry’s testimony that

Wood was, at all times, traveling in the correct lane on the street, and he

____________________________________________


6
  Similar to a stop for speeding, either Wood was traveling in the wrong
lane, or he was not; nothing more could have been determined during the
vehicle stop. Salter, supra, 121 A.3d at 993.



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was stopped as he was making the left hand turn. See N.T., 2/5/2015, at

26-27.    Concomitantly, the court also, necessarily, discredited Officer

Smith’s testimony that he observed Wood traveling in the wrong lane of

traffic before Wood approached the left turn.

      As we stated supra, credibility determinations are within the sole

province of the trial court.   Gallagher, supra.   Because the trial court’s

factual findings are supported by the record, “we are bound by those

findings.” Ibrahim, supra, 127 A.3d at 822. Therefore, we find no basis to

disturb the trial court’s suppression order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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