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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CARMAN DELTON HYDOCK                       :   No. 566 WDA 2019


                 Appeal from the Order Entered March 20, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0002216-2017


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 17, 2020

        The Commonwealth of Pennsylvania appeals from the trial court’s order

granting Defendant Carman Delton Hydock’s pretrial motion to suppress and

dismissing the charges filed against Hydock.1 We reverse.

        On the evening of February 28, 2017, Officer Jason Myers of the City of

Latrobe Police Department was on duty in a marked patrol car when he

initiated a vehicle stop at the intersection of Lincoln Highway and Industrial

Boulevard in the City of Latrobe. Hydock was the driver of the stopped vehicle,

a red Ford SUV.       Officer Myers testified at a suppression hearing that he

stopped Hydock for a turn signal violation after he had followed the SUV for
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 In its notice of appeal, the Commonwealth certifies that the trial court’s order
terminates or substantially handicaps the prosecution. See Pa.R.A.P. 311(d).
Thus, this appeal is properly before us.
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approximately four to five minutes. N.T. Suppression, 6/1/18, at 25-26. As

Hydock approached the intersection in the right lane, he proceeded to turn

right onto Industrial Boulevard without stopping or using his right turn signal.

Id. at 27-28. A stop sign at the intersection had a sign underneath it that

read, “EXCEPT RIGHT TURN.” Id. at 27.        As a result of Hydock’s failure to

use his turn signal, Officer Myers activated his patrol car’s overhead

emergency light and conducted a traffic stop. Id. at 28. Ethan Guzikowski

was in the passenger seat of the SUV.

      Officer Myers approached Hydock’s vehicle and asked him for his driver’s

license, registration and proof of insurance. Id. at 30. Hydock told Officer

Myers that his license had been suspended and handed Officer Myers an

expired Pennsylvania driver’s license. Id. When Officer Myers ran the license

through dispatch, he was advised that Hydock’s license was current and valid.

Id. at 31. Hydock told Officer Myers that he did not have a current, valid

driver’s license in his possession.   Id. at 32.   For safety purposes, Officer

Myers then asked Hydock and his passenger to exit the vehicle; Hydock and

Guzikowski complied. Id. Officer Myers asked Hydock if there was anything

illegal in the vehicle, to which Hydock replied, “no.” Id. at 32. Officer Myers

then asked Hydock if he could search the car and Hydock gave the officer

consent to search.   Id. at 34.   Officer Myers entered the car through the

driver’s side, searched the center console and underneath the driver’s seat.

Id. at 36. At that time, Officer Myers heard yelling as backup officers tried to

detain Hydock and his passenger, neither of whom were handcuffed, outside

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of the vehicle.     Id. at 36-37.      As Officer Myers walked toward the other

officers, he observed a clear Ziploc baggie with suspected marijuana on the

hood of Officer Myers’ patrol vehicle. Id. at 37. By that point Hydock and his

passenger were handcuffed. Hydock told Officer Myers that he owned the

marijuana and intended to sell it. Id. at 39-40. Hydock was charged with

possession of a controlled substance, possession with intent to deliver a

controlled substance, and possession of drug paraphernalia.

       On September 21, 2017, Hydock filed an omnibus pretrial motion to

suppress all evidence recovered from Officer Myers’ vehicle stop, claiming the

officer lacked reasonable suspicion that Hydock had violated the Vehicle Code.

On June 1, 2018, the trial court held a suppression hearing at which Hydock’s

arresting officers testified.2      On March 19, 2019, the trial court granted

Hydock’s suppression motion, concluding that Hydock “was not required by

the Motor Vehicle Code to signal a right turn at the intersection of Lincoln

Avenue and Industrial Boulevard, and[,] thus[,] Officer Myers’ stop of

[Hydock] was not supported by probable cause and was unlawful.” Trial Court

Opinion, 3/19/18, at 2. The Commonwealth filed a timely notice of appeal.
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2 We note that on June 4, 2018, Hydock filed a “[S]upplemental Omnibus
Pretrial Motion” seeking dismissal of the charges based upon Pa.R.Crim.P. 600
and the Commonwealth’s failure to comply with his speedy trial rights. On
August 13, 2018, the court held a Rule 600 hearing where Hydock’s arresting
officers testified. For briefing, review and decision-making purposes, the trial
court consolidated the issues raised in Hydock’s omnibus pretrial motions.
Having dismissed Hydock’s charges based upon the court’s determination that
the stop was unlawful, the court dismissed “without further consideration”
Hydock’s remaining claims in his motions. See Trial Court Opinion, 3/19/18,
at 2.

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       On appeal, the Commonwealth raises the following issue: “Whether,

when a motorist makes a turn, from one street to another, past a stop sign

qualified by ‘Except Right Turn’ and fails to signal, it was reasonable for Officer

Myers to believe that that motorist had violated the Vehicle Code?”

Commonwealth’s Brief, at 6.

       When reviewing the grant of a suppression motion, we must determine

whether the record supports the suppression court’s factual findings and

“whether the legal conclusions drawn from those facts are correct.”

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013). We may

only     consider   evidence    presented     at   the    suppression     hearing.

Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014). Further,

we may only consider the appellee’s evidence and so much of the

Commonwealth’s evidence as remains uncontradicted when read in the

context of the record as a whole, giving deference to the suppression court’s

factual determinations in its exclusive role as fact-finder. Id. We may reverse

only if the legal conclusions drawn from the facts are in error. Brown, 64

A.3d at 1104.

       The Commonwealth contends that it was objectively reasonable for

Officer Myers to conduct the traffic stop of Hydock’s vehicle where the officer

believed that Hydock had violated section 3334 of the Vehicle Code.            We

agree.

       If the alleged basis of a vehicular stop is to determine whether
       there has been compliance with the Commonwealth's Vehicle
       Code, it is incumbent upon the officer to articulate specific facts

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      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. However, if an
      officer stops a vehicle for the purpose of obtaining necessary
      information to enforce the provisions of the code, the stop need
      only be based on reasonable suspicion that a violation of the code
      has occurred. 75 Pa.C.S. § 6308(b).

Commonwealth v. Slattery, 139 A.3d 221, 222-23 (citation omitted).

      Here, where Officer Myers stopped Hydock for failing to signal when he

turned right from Lincoln Highway onto Industrial Boulevard, he was required

to have probable cause to initiate the stop because further investigation would

not have helped him establish whether Hydock used the required signal. See

Brown, 64 A.3d at 1105. “The police have probable cause where the facts

and circumstances within the officer’s knowledge are sufficient to warrant a

person of reasonable caution in the belief that an offense has been or is being

committed.”   Commonwealth v. Hernandez, 935 A.2d 1275, 1984 (Pa.

2007) (quotation and citations omitted).    “We evaluate probable cause by

considering all relevant facts under a totality of the circumstances analysis.”

Id.

      Pursuant to section 3334:

      § 3334. Turning movements and required signals.

      (a) General rule. — Upon a roadway 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 in the manner provided in this
      section.

      (b) Signals on turning and starting. — At 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

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       the last 100 feet traveled by the vehicle before turning. The
       signal shall be given during not less than the last 300 feet at
       speeds in excess of 35 miles per hour. The signal shall also be
       given prior to entry of the vehicle into the traffic stream from a
       parked position.

75 Pa.C.S. § 3334(a), (b) (emphases added).

       Instantly, as Hydock was driving in the right lane heading north on

Lincoln Avenue, he made a right turn at the intersection of Lincoln Avenue and

Industrial Boulevard onto Industrial Boulevard. He did not use his turn signal.

At the intersection is a stop sign with a sign underneath it that says, “Except

Right Turn.” Based on his belief that Hydock had violated section 3334 of the

Vehicle Code, which requires a driver give “an appropriate signal of intention

to turn right,” Officer Myers initiated a traffic stop.

       Here, the trial court noted that Hydock’s “northerly course of travel on

Lincoln Avenue curved continuously and unbroken in an easterly direction onto

Industrial Boulevard.” Trial Court Opinion, 3/19/18, at 3. Although the court

recognized that Hydock was not required to stop as per the street sign, the

court also stated that because no traffic traveling on Depot Street, the road

running to the east and west3 of the intersection, can legally enter the Lincoln

Avenue/Industrial Boulevard roadway due to its one-way nature, Officer Myers

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3 The intersection of Lincoln Highway and Industrial Boulevard is known as a
“T-intersection,” where Lincoln Highway does not continue straight and drivers
either turn right onto Industrial Boulevard (eastbound) or left onto Depot
Street (westbound). Moreover, Depot Street westbound is one-way at the T-
intersection of Lincoln Highway and Industrial Boulevard.             Further,
immediately after making a right turn onto Industrial Boulevard from Lincoln
Highway is a continuation of Depot Street on the right, another one-way
roadway (eastbound).

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was incorrect in believing that Hydock was required to signal where “a motorist

driving in [Hydock’s] course of travel could not affect the course of travel of

any motorist driving on any portion of Industrial Boulevard or Depot Street.”

Id. at 4. Finally, the trial court found that if Hydock had in fact used his right

turn signal, other motorists may have been “misled into thinking he [wa]s

turning right onto Depot Street after the curve onto Industrial Boulevard.” Id.

We disagree.

      Section 3334 clearly requires a motorist turning his or her vehicle on a

roadway to “giv[e] an appropriate signal.” 75 Pa.C.S. § 3334(a). Moreover,

when a vehicle is turning, the motorist must give “an appropriate signal of

intention to turn right or left . . . continuously during not less than the last

100 feet traveled by the vehicle before turning.” Id. at § 3334(b). Finally,

turn signals “shall be discontinued immediately after completing the turn[.]”

Id. at § 3334(d).

      Here, the signage at the subject intersection which states “Except

Right Turn,” clearly acknowledges that Hydock was making a right turn onto

Industrial Boulevard from Lincoln Avenue.       Accordingly, Officer Myers had

probable cause to believe Hydock had violated section 3334(b) of the Vehicle

Code where no one “shall turn a vehicle . . . without giving an appropriate

signal.” Id. at § 3334(a). See Brown, supra at 1106 (where officer testified

defendant turned vehicle from one street to another without using signal

lamps, officer “unquestionably possessed facts to warrant belief by any




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reasonable person that [defendant] violated the vehicle code.”).4      To the

extent that the trial court believes that if Hydock had used his signal other

motorists may have been misled into thinking that he was turning onto

eastbound Depot Street after he turned onto Industrial Boulevard, we also

disagree. As section 3334(d) states, Hydock would have been required to

immediately discontinue the signal after turning onto Industrial Boulevard.

The Commonwealth correctly acknowledges that this case boils down to

common sense.         Considering all relevant facts5 under a totality of the

circumstances analysis, Officer Myers had probable cause where the facts and

circumstances within his knowledge were “sufficient to warrant a person of

reasonable caution in the belief that an offense has been or is being

committed.” Hernandez, supra.

       Reversed.

       Judge Pellegrini joins this Memorandum.

       Judge Bowes files a Concurring Memorandum.




____________________________________________


4  We also note that there is no exception to the signal requirement set forth
in section 3334 for vehicles that are not required to come to a stop before
turning onto another roadway.

5Our review of the case involved examination of Commonwealth Exhibit 1, an
aerial photograph of the subject intersection, and Commonwealth Exhibits 2,
CDs containing video footage of nighttime drives through the intersection from
multiple directions.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2020




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