J-A03003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

TRAVELLE JOHNSON

                            Appellee                 No. 907 MDA 2016


                    Appeal from the Order Entered May 6, 2016
                   In the Court of Common Pleas of York County
                 Criminal Division at No: CP-67-CR-0000454-2016


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:              FILED AUGUST 02, 2017

          While I agree with the Majority that the Appellee did not waive his

claim challenging the legality of the traffic stop, I respectfully dissent

because the Majority incorrectly concludes that Trooper Kaczor did not have

probable cause to stop Appellee’s vehicle for exceeding the posted speed

limit.1    As the trooper possessed probable cause to stop Appellee’s vehicle

for exceeding the posted speed limit, I further would conclude it was

unnecessary to address whether the trooper also possessed probable cause

to stop Appellee’s vehicle for a traffic violation related to driving on

roadways laned for traffic.2

____________________________________________


1
    75 Pa.C.S.A. § 3362(a)(2).
2
    75 Pa.C.S.A. § 3309(1).
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        After a hearing on Appellee’s omnibus motion, the suppression court

found that “[Appellee] was clocked by Trooper Kaczor traveling 70 miles per

hour in a 55 mile per hour zone.” Suppression Court Opinion, 5/6/16, at 5.

On cross-examination, Trooper Kaczor testified that he, at that time, did not

have a certificate showing his speedometer was calibrated and tested;

however, he testified that it was certified on May 13, 2015. 3              N.T.

Suppression Hearing, 5/4/16, at 11-12. Trooper Kaczor further testified that

he followed Appellee for approximately four miles in a 55 mph zone and

clocked him at 70 mph.           Suppression Court Opinion, 5/6/16, at 5; N.T.

Suppression Hearing, 5/4/16, at 11-12.

        The Motor Vehicle Code provides that police officers may use a

speedometer to capture the rate of speed of another vehicle in support of a

conviction for speeding.        75 Pa.C.S.A. § 3368(a).    “In ascertaining the

speed of a vehicle by the use of a speedometer, the speed shall be timed for

a distance of not less than three-tenths of a mile.” Id.

        To sustain a conviction for speeding, the Commonwealth must
        show beyond a reasonable doubt that: (1) an accused was
        driving in excess of the speed limit; (2) the speed timing device
        was approved by the Department of Transportation; and (3) the
        device was calibrated and tested for accuracy within the
        prescribed time period by a station which has been approved by
        the department.




____________________________________________


3
    The traffic stop occurred some 6 months later on November 5, 2015.



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Commonwealth v. Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004)

(citations omitted). However, while proof of calibration and device accuracy

is necessary to secure a conviction, an officer need only establish probable

cause to stop a vehicle for speeding. See Commonwealth v. Feczko, 10

A.3d 1285, 1290-91 (Pa. Super. 2010) (en banc); Commonwealth v.

Landis, 89 A.3d 694, 702 (Pa. Super. 2014).

         Probable cause exists “when the facts and circumstances within the

police    officer’s   knowledge   and   of   which   the   officer   has   reasonable

trustworthy information are sufficient to warrant a person of reasonable

caution in the belief that an offense has been committed based upon a

totality of the circumstances.”     Commonwealth v. Salter, 121 A.3d 987

(Pa. Super. 2015) (citing Commonwealth v. Weaver, 76 A.3d 562, 565

(Pa. Super. 2013), aff’d per curiam, 105 A.3d 656 (Pa. 2014) (additional

citation omitted).      “Criterion of admissibility into evidence, to prove an

accused’s guilt, should not be applied to the facts relied upon to show

probable cause.”       Weaver, 76 A.3d at 567 (citing Brineger v. United

States, 338 U.S. 160, 172 (1949)).           If proof beyond a reasonable doubt

necessary for conviction

         were to be made applicable in determining probable cause . . .
         for search and seizure, more especially in cases such as this
         involving moving vehicles used in the commission of crime, few
         indeed would be the situations in which an officer, charged with
         protecting the public interest by enforcing the law, could ever
         take effective action toward that end.




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Weaver, 76 A.3d at 568 (quoting Brinegar, 338 U.S. at 174). “Thus, it is

clear that the rules of evidence governing a trial are inapplicable to a

determination of probable cause.” Id. (citations omitted).

      Probable cause was established here when Trooper Kaczor, using the

speedometer in his vehicle, timed Appellee going 70 mph in a 55 mph zone

over a period of 4 miles. The failure to provide proof of timely calibration at

the suppression hearing was irrelevant to the determination of probable

cause.   See Commonwealth v. Vincett, 806 A.2d 31, 33 (Pa. Super.

2002) (“the fact that [a defendant] may have a colorable defense to the

underlying traffic violation in no manner affects the validity of the stop.”).

The actual accuracy of the police unit’s speedometer was the wrong inquiry

in determining probable cause. The proper inquiry should have been

whether the trooper reasonably believed his speedometer was accurate to

justify the traffic stop of the Appellee’s vehicle. The “suppression inquiry is

analyzed from the perspective of the officer and not from the perspective of

the defendant.” Id. (citing Commonwealth v. Palmer, 751 A.2d 223 (Pa.

Super. 2000)). Trooper Kaczor’s observation that the Appellee was traveling

70 mph in a 55 mph zone for a distance of approximately 4 miles was

uncontradicted at the suppression hearing and so found by the suppression

court. This clearly was enough to establish the requisite probable cause for

the traffic stop in this case. There is no requirement that an actual Vehicle

Code violation be established. Id.




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J-A03003-17



     The Majority improperly conflates probable cause with the proof

necessary for conviction in concluding that Trooper Kaczor did not possess

the requisite probable cause to stop the Appellee’s vehicle.   Accordingly, I

would reverse the trial court and conclude that the suppression court erred

in granting Appellee’s motion to suppress.




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