J-A16010-20

                                   2020 PA Super 205


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILBUR ANDREW WILSON                       :
                                               :
                       Appellant               :   No. 59 MDA 2020

       Appeal from the Judgment of Sentence Entered December 9, 2019
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0003243-2019


BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

OPINION BY PANELLA, P.J.:                              FILED AUGUST 21, 2020

        Appellant, Wilbur Andrew Wilson, appeals from the judgment of

sentence entered in the York County Court of Common Pleas on December 9,

2019. Wilson challenges the sufficiency of the evidence underlying his

conviction for failing to drive in the right lane and contends the Commonwealth

did not present specific and articulable facts to support the state police’s

decision to pull him over. The trial court found Wilson guilty of two counts of

driving under the influence (“DUI”) – controlled substance1, and one count of

restrictions on use of limited access highways 2. We agree with Wilson’s

arguments and therefore reverse his convictions.



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1   75 Pa.C.S.A. §3802(d)(1)(i); 75 Pa.C.S.A. §3802(d)(1)(iii).

2   75 Pa.C.S.A. §3313(d)(1).
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      Wilson was charged with four counts of DUI - controlled substance, one

count of restrictions on use of limited access highways, for failing to drive in

the right lane, and one count of failure to yield to an emergency vehicle.

Wilson moved to suppress the evidence gained from the traffic stop. In

response to Wilson’s motion, the court held a suppression hearing. At the

hearing, the Commonwealth presented the testimony of the Pennsylvania

State Police corporal involved in the incident. Further, defense counsel played

the motor vehicle recording (“MVR”) of the interaction for the court as the

corporal narrated. Wilson did not testify at the hearing.

      On November 28, 2018, the corporal was on duty and heading back to

the police station “to handle a complaint on a trooper.” N.T., 9/4/2019, at 7.

He was heading south on I-83 in York County and travelling in the left lane

when he observed a white Ford pickup truck with a Maryland registration in

front of him. See id. The truck was going less than 60 miles per hour, but

above the speed limit of 55 miles per hour. See id., at 14.

      The corporal observed that as he approached the truck from behind, it

began to slow down. See id., at 16. He felt the driver, later identified as

Wilson, was “barely” passing traffic. However, he admitted Wilson was

travelling faster than the vehicles in the right lane. He specifically testified the

driver was passing traffic in the right lane and was going faster than the flow

of traffic in the right lane. See id., at 14 - 16.




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      The corporal “chirped” his siren to indicate his desire that Wilson move

to the right lane, as in his opinion Wilson was not driving fast enough. Id., at

7. Wilson did not immediately pull into the right lane. See id. The corporal

indicated he still had no intention to cite Wilson for any violation. See id. He

merely wanted Wilson to leave the left lane so he could return to the station

to handle a separate matter at the station. Id., at 10. He had no other reason

for activating his emergency signals at that point. See id., at 18-19.

      The corporal then activated his lights and turned on his siren. See id.

at 18. In response, Wilson pulled over to the left side of the highway. See id.,

at 9. The corporal opined that Wilson could have pulled into the right lane

behind a red car. See id., at 17. When asked whether he felt Wilson violated

a statute by pulling over to the left, the corporal replied, “Yeah[, d]uty to

approaching emergency vehicles says you should pull to the right.” Id., at 18.

      The corporal was not pleased with Wilson’s action and immediately

pulled over to the right berm of the highway. See id., at 11. He rolled down

his window and yelled across the highway at Wilson. See id. He told Wilson

to get over in front of him on the right side because he wanted to talk to him.

The corporal testified that he “swore” at Wilson. See id., at 11. Wilson

complied and pulled in front of the corporal. This all happened in a matter of

seconds. See id., at 19.

      The corporal testified that he “probably” was not going to cite Wilson for

any Motor Vehicle Code (“MVC”) violation at that time. See id., at 11.


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Furthermore, he stated he approached all of his traffic stops as a drug stop or

DUI stop. See id.

      As the corporal approached the driver side window, he detected the odor

of marijuana. He instructed Wilson to exit the vehicle to perform field sobriety

tests. Wilson was not able to adequately perform some of the tests given to

him, and the corporal was unable to give some of the tests due to Wilson’s

bad hip. The corporal placed Wilson under arrest for DUI - controlled

substances. A blood test indicated Wilson had marijuana metabolites and

oxycodone in his system.

      Following the hearing, the court denied Wilson’s motion to suppress,

stating the following:

      I would say this is a close call; however, I believe, based upon
      [the corporal’s] experience as someone who has been employed
      as a trooper since November of 1996, that, based on the
      defendant's failure to react to the chirping of the siren and failing
      to move safely to the right side of the roadway, as required by the
      Motor Vehicle Code, there was a basis for [the corporal] to make
      the stop. Therefore, we deny the motion.

Trial Court Order, 9/4/2019, at 3.

      On October 11, 2019, the court held a stipulated bench trial. The

Commonwealth rested on the affidavit of probable cause and the testimony

heard at the suppression hearing. After finding probable cause for the stop,

the court found Wilson guilty of two counts of DUI and one count of restrictions

on use of limited access highways. Wilson was sentenced to seventy-two hours




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to six months’ incarceration, plus fines. No post-sentence motions were filed.

This appeal followed.

      Wilson first challenges the sufficiency of the evidence underlying his

conviction for restrictions on use of limited access highways. Our standard of

review for a challenge to the sufficiency of the evidence is to determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crimes charged is established

beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,

152 (Pa. Super. 2003).

      The MVC defines the offense of restrictions on use of limited access

highways as follows:

      § 3313. Restrictions on use of limited access highways

                                      ***

      (d) Driving in right lane.--

         (1) Except as provided in paragraph (2) and unless otherwise
         posted, upon all limited access highways having two or more
         lanes for traffic moving in the same direction, all vehicles shall
         be driven in the right-hand lanes when available for traffic
         except when any of the following conditions exist:

            (i) When overtaking and passing another vehicle proceeding
            in the same direction.

            (ii) When traveling at a speed greater than the traffic flow.

            (iii) When moving left to allow traffic to merge.




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            (iv) When preparing for a left turn at an intersection, exit or
            into a private road or driveway when such left turn is legally
            permitted.

75 Pa.C.S.A. § 3313(d)(1). Pursuant to the statute, Wilson was required to

drive in the right-hand lane unless any of the conditions listed within d(1)(i-

iv) existed. Wilson argues that Section 3313(d)(1)(i) and/or (ii) authorized his

presence in the left lane.

      The corporal specifically testified that, while he drove behind Wilson in

the left lane, Wilson was passing traffic in the right lane and was going faster

than the flow of traffic:

      Q. The speed limit is 55?

      [Corporal]. Yes.

      Q. The vehicle was going above 55?

      [Corporal]. Yes. It was going under 60. It was around 58.

      Q. So not below the speed limit?

      [Corporal]. No.

      Q. The vehicle is passing traffic in the right-hand lane while you
      are behind it, correct?

      [Corporal]. Barely passing traffic. It was slow.

      Q. But it was passing traffic?

      [Corporal]. Yes, it was.

      Q. And it was going faster than the flow of traffic in the right-hand
      lane, correct?

      [Corporal]. Barely. It was still tying up traffic behind it.


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      Q. But it was going faster than the flow of traffic in the
      right-hand lane? Is that fair?

      [Corporal]. Correct. Yes.

N.T., 9/4/2019, at 14 (emphasis added). Although Wilson was travelling in the

left lane, the record shows he was passing another vehicle travelling in the

same direction and was going faster than the flow of traffic in the right lane,

both permissible acts under the statute. Therefore, we find the evidence was

insufficient to convict Wilson under Section 3313(d)(1).

      In his final two issues, Wilson contends the trial court erred in denying

his motion to suppress. In reviewing the denial of a suppression motion, we

must determine whether the record supports the trial court’s factual findings

and whether the legal conclusions drawn from those facts are correct.

Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018). While our

standard of review is highly deferential to the suppression court’s factual

findings and credibility determinations, we afford no deference to the court’s

legal conclusions, and review such conclusions de novo. See Commonwealth

v. Hughes, 836 A.2d 893, 898 (Pa. 2003).

      Wilson argues the interaction constituted a stop without reasonable

suspicion from the moment the corporal activated his emergency lights and

siren. Specifically, Wilson disputes the trial court’s finding that the interaction

only became a stop once Wilson followed the corporal’s direction to pull in

front of him on the right side of the road. He further contends the corporal

failed to establish either reasonable suspicion or probable cause to stop him.

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J-A16010-20


       The court found the traffic stop was not effectuated until Wilson pulled

over to the right side of the highway in front of the corporal. See Trial Court

Opinion, 3/9/2020, at 5. The court further concluded that, at that time, the

corporal acted on reasonable suspicion of impairment. See id.

       We find the court failed to recognize the point at which the corporal’s

interaction with Wilson became a stop. In its opinion, the trial court focuses

almost exclusively on the corporal’s intentions throughout the interaction in

determining when the traffic stop was effectuated. See id. at 4-5. While the

trial court is entitled to its credibility determination regarding the corporal’s

intentions, this is the incorrect standard in a determination of whether a stop

occurred.

       [I]n the context of the Fourth Amendment, a person is considered
       seized only if, in view of all the circumstances surrounding the
       incident, a reasonable person would have believed that he was not
       free to leave. In evaluating those circumstances, the crucial
       inquiry is whether the officer, by means of physical force or a show
       of authority, has restrained a citizen's freedom of movement.

Commonwealth v. Livingstone, 174 A.3d 609, 621 (Pa. 2017) (emphasis

added).3 Therefore, the corporal’s intentions are not relevant in the analysis

of when a traffic stop was initiated. Rather, the focus is on whether a

reasonable person in Wilson’s position would have felt free to leave.




____________________________________________


3Wilson’s appellate brief relies heavily on Livingstone. The Commonwealth’s
brief does not address Livingstone. See Appellee’s Brief, at 2.


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       The corporal testified that Wilson promptly pulled his vehicle over to the

left side of the highway in response to him turning on his emergency lights

and siren. He further testified that it was not his “intent” at this point to

effectuate a stop. However, his intent is not dispositive of this analysis.

       While motorists may know that police officers may use their overhead

lights for reasons other than to command a stop, that does not mean the

average motorist would assume that an officer had no interest in detaining

the vehicle and would feel free to leave. See id. at 623. Further, in the

affidavit of probable cause, the corporal specifically stated that he activated

the emergency lights “to initiate a traffic stop.” Affidavit of Probable Cause, at

1. It is clear the corporal understood the effect his actions had on Wilson.

       It is undeniable that emergency lights on police vehicles in this
       Commonwealth serve important safety purposes, including
       ensuring that the police vehicle is visible to traffic, and signaling
       to a stopped motorist that it is a police officer, as opposed to a
       potentially dangerous stranger, who is approaching. Moreover, we
       do not doubt that a reasonable person may recognize that a police
       officer might activate his vehicle's emergency lights for safety
       purposes, as opposed to a command to stop. Nevertheless,
       upon consideration of the realities of everyday life,
       particularly the relationship between ordinary citizens and
       law enforcement, we simply cannot pretend that a
       reasonable person, innocent of any crime, would not
       interpret the activation of emergency lights on a police
       vehicle as a signal that he or she is not free to leave.

Id. at 621 (emphasis added).4

____________________________________________


4 We note the lead opinion in Livingstone does not constitute a majority
opinion. However, the position for which we cite to Livingstone did garner



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       Of relevance here, Section 3325(a) of the MVC, titled “Duty of driver on

approach of emergency vehicle,” provides:

       Upon the immediate approach of an emergency vehicle making
       use of an audible signal and visual signals meeting the
       requirements and standards set forth in regulations adopted by
       the department, the driver of every other vehicle shall yield the
       right-of-way and shall immediately drive to a position parallel to,
       and as close as possible to, the right-hand edge or curb of the
       roadway clear of any intersection and shall stop and remain in that
       position until the emergency vehicle has passed, except when
       otherwise directed by a police officer or an appropriately attired
       person authorized to direct, control or regulate traffic. On one-
       way roadways a driver may comply by driving to the edge or curb
       which is nearest to the lane in which he is traveling.

Id., at § 3325(a). The fact that Wilson risked being charged with a violation

of the MVC if he incorrectly assumed he was free to leave after a patrol car,

with its emergency lights activated, pulled behind him supports our conclusion

that a reasonable person in Wilson’s position would not have felt free to leave.

       The record also reflects that mere seconds after Wilson responded to

the emergency lights by pulling over, the corporal demanded Wilson pull over

to the right side of the road in front of his patrol car so he could question him.

As such, the corporal displayed authority over Wilson which restrained his




____________________________________________


the support of a majority of the Justices. See id., at 638-639 (Baer, J.,
concurring in part and dissenting in part) (agreeing that no reasonable
motorist believes she is free to leave after an officer activates emergency
signals); see also id., at 641 (Donohue, J., concurring in part and dissenting
in part, joined by Wecht, J.) (same).



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freedom of movement from the moment he turned his emergency lights and

siren on. See id., at 621.

       We must next determine whether the corporal had reasonable suspicion5

to justify his stop of Wilson. If a police officer possesses reasonable suspicion

that a violation of the MVC is occurring or has occurred, he may stop the

vehicle involved for the purpose of obtaining information necessary to enforce

the provisions of the Code. See 75 Pa.C.S.A. § 6308(b). Reasonable suspicion

is a relatively low standard and depends on the information possessed by

police and its degree of reliability in the totality of the circumstances. See

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). In order to justify

the stop, an officer must be able to point to specific and articulable facts which

led him to reasonably suspect a violation of the MVC. See Commonwealth

v. Holmes, 14 A.3d 89, 95 (Pa. 2011). The standard for assessing whether a

given set of observations constitutes reasonable suspicion is an objective one,

based on the totality of the circumstances. See id.

       We conclude the facts adduced by the corporal did not provide him with

reasonable suspicion to conduct a stop. The corporal testified that the only

reason he activated his lights and siren was because he wanted Wilson to pull

over so he could get by Wilson to return to the station. See N.T., 9/4/2019,

____________________________________________


5We note that it is not entirely clear what level of suspicion the Commonwealth
was required to prove under these exact circumstances. As we find that the
Commonwealth cannot even establish the lesser burden of reasonable
suspicion on this record, we will proceed with that analysis.


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at 18-19. This is simply not enough to constitute reasonable suspicion for a

stop.

        Wilson was passing traffic in the right lane, in accordance with a specific

exception to Section 3313, when the corporal activated his lights. At this point,

the traffic stop had occurred. See Livingston, 174 A.3d at 621. As noted

above, the corporal did not have specific and articulable facts to support a

stop at this time.

        However, even if we were to accept the Commonwealth’s incorrect

theory that the stop did not occur until after Wilson pulled over to the left side

of the highway, the corporal did not testify to a legally sufficient basis to stop

Wilson. Wilson promptly pulled over to the nearest side of the road in response

to an approaching patrol vehicle with its emergency lights and sirens

activated, in accordance with an exception to Section 3325 regarding one-way

roadways.6 These circumstances, all of which are permitted by the MVC, are

not enough to support a finding of reasonable suspicion for a stop.

        Further, the court erred in finding reasonable suspicion based on the

corporal’s belief that Wilson was either “lost, drunk, or high.” See N.T.,

9/4/2019, at 11. First, the comment above was based on the corporal’s

admission that he approaches all of his stops as a potential drug stop or DUI.

See id. This broad generalization does not support a “specific and articulable”

____________________________________________


6The Commonwealth does not argue in its brief that this section of I-83 was
not a one-way roadway.


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fact possessed by him, at the time of the questioned stop, which would provide

reasonable suspicion for a stop. Further, the Affidavit of Probable Cause and

the corporal’s own testimony demonstrates that his interaction with Wilson

was based on his belief that Wilson was violating Section 3313, rather than

possible impairment.

      After a careful review of the record, we find the evidence presented was

insufficient to convict Wilson for failing to drive in the right lane, pursuant to

Section 3313. Further, we find the evidence does not support the findings of

the suppression court regarding when the vehicle stop occurred or that the

corporal had reasonable suspicion to justify a vehicle stop of Wilson. The

record is devoid of any specific or articulable facts supporting the state police

officer’s decision to pull Wilson over. Accordingly, the corporal did not have

reasonable suspicion to stop Wilson’s vehicle and the court should have

granted Wilson’s motion to suppress. We therefore reverse Wilson’s judgment

of sentence.

      Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2020



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