J-S31006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHANE RONALD VENSEL

                            Appellant                  No. 685 WDA 2016


             Appeal from the Judgment of Sentence April 14, 2016
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001315-2015


BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED JUNE 9, 2017

        Appellant, Shane Ronald Vensel, appeals from the judgment of

sentence entered in the Butler County Court of Common Pleas following his

conviction for driving under the influence of alcohol (“DUI”) and related

offenses. Vensel contends that the suppression court erred in concluding

that the arresting officer had reasonable suspicion when she conducted a

traffic stop of Vensel’s vehicle. After careful review, we affirm.

        The relevant facts and procedural history are as follows. On May 6,

2015, following a traffic stop, Vensel was charged through the filing of a

criminal complaint with DUI-general impairment,1 DUI-highest rate,2 driving
____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1).
2
    75 Pa.C.S.A § 3802(c).
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on roadways laned for traffic,3 careless driving,4 and vehicular hazard signal

lamps.5 Vensel filed a motion to suppress. The court held a suppression

hearing.

        At the hearing, the Commonwealth presented the testimony of

Pennsylvania State Police Trooper Jennifer Cantella. At approximately 2:20

a.m. on May 6, 2015, Trooper Cantella and Pennsylvania State Police

Trooper Nathan Brown were patrolling State Route 8 in Center Township

when they observed a white Volkswagen Jetta cross over the fog line in

order to make a wide left turn onto State Route 8. See N.T., Suppression

Hearing, 10/27/15, at 4-5. Trooper Cantella testified that the area of State

Route 8 where the Jetta turned is several feet wide and, as such, the Jetta

was not in danger of hitting any objects at the time of the turn. See id., at

11. Further, there were no other vehicles on the road when Trooper Cantella

encountered the Jetta. See id., at 12. Following the turn, the Jetta corrected

itself and returned to a lane of travel. See id., at 11-12.

        Trooper Cantella proceeded to follow the Jetta and observed it touch

the center yellow lines with its left tires. See id., at 5-6, 13-14. The troopers

continued to follow the Jetta for approximately a mile and observed it


____________________________________________


3
    75 Pa.C.S.A. § 3309(1).
4
    75 Pa.C.S.A. § 3714(a).
5
    75 Pa.C.S.A. § 4305(a).



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“weaving back and forth” and touching the centerline with its left tires two

more times. Id. Based upon these circumstances, and Trooper Cantella’s

belief that the operator of the Jetta may be driving under the influence, the

troopers executed a traffic stop. See id., at 7, 19. The troopers identified

Vensel as the driver of the Jetta. See id., at 3-4.

      In addition to Trooper Cantella’s testimony, the Commonwealth also

presented the motor vehicle recording (“MVR”) of the traffic stop into

evidence. See id., at 17. Due to the grainy quality of the video, Trooper

Cantella explained that the MVR does not show the weaving behavior as

clearly as she personally witnessed the event. See id., at 18. However, on

cross-examination,     Trooper   Cantella   admitted    that   the    weaving     she

witnessed could have been explained as a tired or inattentive driver, or

someone changing the radio station. See id., at 20-21. Vensel did not testify

at the suppression hearing, or present any additional evidence.

      The suppression court denied Cantella’s suppression motion, stating

that Trooper Cantella had the necessary “reasonable suspicion” to perform

the traffic stop, and thus, all evidence collected from the stop was

admissible.   The    parties   proceeded    to   a   bench   trial.   Following   the

presentation of evidence, the trial court convicted Vensel of all charges.

Vensel received a sentence of sixty months of intermediate punishment. This

timely appeal follows.

      On appeal, Vensel contends that the suppression court erred in

denying his pre-trial motion to suppress. See Appellant’s Brief, at 8.

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      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of the suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record 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 legal conclusions drawn therefrom are in
      error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation

omitted). Additionally, “[i]t 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).

      Vensel’s sole issue concerns the quantum of cause required in order

for state law enforcement to stop a vehicle for an alleged violation of the

Vehicle Code. Specifically, Vensel contends that Trooper Cantella did not

have the reasonable suspicion necessary to perform the underlying traffic

stop, and as such, all evidence collected from the traffic stop should have

been suppressed. See Appellant’s Brief, at 8, 12-19.

      Here, the record supports the suppression court’s factual findings.

Thus, we proceed to review the court’s legal conclusion, that the troopers

possessed reasonable suspicion, for which our standard of review is de novo.




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See Commonwealth v. Wilson, 101 A.3d 1151, 1153 (Pa. Super. 2014),

appeal denied, 121 A.3d 496 (Pa. 2015).

     The quantum of proof necessary to make a vehicle stop on suspicion of

a violation of the motor vehicle code is governed by 75 Pa.C.S.A. § 6308(b),

which states:

     (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 titles 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.

(emphasis supplied).

     Traffic stops based upon suspicion of a violation of the motor vehicle

code under § 6308(b) “must serve a stated investigatory purpose.”

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 [i]ncumbent
     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.’

Id. (emphasis and citation omitted). Suspicion of DUI has been held to serve

a stated investigatory purpose, and thus, a traffic stop based upon a




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suspected DUI must only be supported by reasonable suspicion. See

Commonwealth v. Sands, 887 A.2d 261, 270 (Pa. Super. 2005).

      Here, the suppression court concluded that Trooper Canella was

entitled to use the reasonable suspicion standard as an “objectively

reasonable police officer would have suspected that [Vensel] was driving

under the influence.” Suppression Court Opinion, 10/30/15, at 4.

      As noted, Trooper Canella testified that she observed Vensel, in the

early morning hours, make a wide left turn onto State Road 8 and cross a

fog line. See N.T., Suppression Hearing, 10/27/15, at 4-5. Following this

turn, Trooper Canella observed Vensel’s Jetta “weav[e] back and forth” and

encroach upon the yellow centerline three times in less than a mile. Id., at

5-6, 13-14.

      These   circumstances    provided    Trooper   Canella     with   sufficient

reasonable suspicion to investigate whether Vensel was intoxicated while

driving. See Sands, 887 A.2d at 272 (stating that police officer had

reasonable suspicion to perform traffic stop to investigate suspected DUI

where vehicle spotted weaving early in the morning and crossing the fog line

three times). Thus, Vensel’s issue on appeal merits no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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