J-S94045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

NICHOLAS PAUL PITZER

                             Appellant                 No. 685 MDA 2016


              Appeal from the Judgment of Sentence April 18, 2016
        in the Court of Common Pleas of Adams County Criminal Division
                        at No(s): CP-01-CR-0000718-2015

BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 30, 2017

        Appellant, Nicholas Paul Pitzer, appeals from the judgment of sentence

entered in the Adams County Court of Common Pleas of sixty months’

intermediate punishment for driving under the influence of alcohol (“DUI”).

Appellant contests the trial court’s denial of his motion to suppress evidence.

We affirm.

        On March 29, 2015, following a traffic stop, Appellant was arrested

and charged with two counts of DUI and several summary offenses.1           On

August 19, 2015, the Commonwealth filed a criminal information charging

Appellant with DUI-highest rate of alcohol2 and DUI-general impairment.3


*
    Former Justice specially assigned to the Superior Court.
1
    The Commonwealth subsequently withdrew the summary offense charges.
2
    75 Pa.C.S. § 3802(c). This was Appellant’s second DUI offense.
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Appellant filed a motion to suppress evidence based on a lack of reasonable

suspicion or probable cause to stop his vehicle.      On December 29, 2015,

following an evidentiary hearing, the trial court denied Appellant’s motion to

suppress.

        The trial court made the following findings of fact in its order denying

suppression:

           1.   On March 29, 2015, at approximately 1:58 a.m.,
           Pennsylvania State Police Trooper Severin Thierwechter,
           while on duty in a marked police vehicle and in full
           uniform, was traveling west on State Route 234 in Adams
           County, Pennsylvania.

           2. While traveling through the intersection of State Route
           234 and Yellow Hill Road, Trooper Thierwechter observed a
           vehicle traveling north on Yellow Hill Road which appeared
           to him to be in the left lane of travel.

           3. A dash cam video in the trooper’s vehicle includes
           evidence of a vehicle traveling north on Yellow Hill Road in
           close proximity to the road’s intersection with State Route
           234. The video does not corroborate or refute Trooper
           Thierwechter’s observations.

           4. At the location of the subject incident, State Route 234
           travels in an east-to-west direction.      Yellow Hill Road
           connects with State Route 234 on the northern side of
           State Route 234. Yellow Hill Road veers off at a greater
           than 90 degree angle when traveling west on State Route
           234. The road is a narrow road with a single yellow line
           separating the lanes. There are no fog line markings nor
           shoulder on either side of the road.

           5. As Trooper Thierwechter’s observation occurred as he
           was traveling near the junction with Yellow Hill Road, he
           did not have sufficient time to make the turn onto Yellow

3
    75 Pa.C.S. § 3802(a)(1).



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         Hill Road. Rather, he stopped his vehicle and backed up to
         the point of being able to make a right–hand turn on
         Yellow Hill Road.       The dash cam reveals Trooper
         Thierwechter stopped his vehicle, backed up to turn onto
         Yellow Hill Road, and began pursuit.

         6. Trooper Thierwechter followed the vehicle briefly. While
         following the vehicle, he observed it to be weaving within
         its lane.

         7. The dash cam video reveals that Yellow Hill Road is a
         narrow road with curves and a slightly rolling topography.
         It also reveals the subject vehicle to be a Ford 4x4 pick-up
         truck. The video confirms some swerving within the lane of
         travel. The video also reveals a lack of traveling in a
         straight direction but rather [ ] weaving even on straight
         portions of the roadway.

         8. Trooper Thierwechter conducted a vehicle stop[,]
         concerned that the vehicle’s travel in the wrong lane and
         weaving required further investigation as to whether the
         driver was impaired.

Order, 12/29/15, at 1-2.

      The trial court explained that Trooper Thierwechter had reasonable

suspicion to stop Appellant’s vehicle:

         Instantly, Trooper Thierwechter observed a vehicle
         traveling entirely on the left side of a marked roadway.
         Subsequent pursuit revealed the vehicle to be weaving
         within its lane of travel.      Independently, the weaving
         within the lane was de minimis at best and, standing
         alone, insufficient to objectively establish a reasonable
         suspicion of criminal conduct. However, when coupled
         with the earlier observation of the vehicle traveling in the
         left lane of a two-lane roadway for no apparent reason at
         1:58 a.m., Trooper Thierwechter had observed articulable
         facts which justified further investigation. Unquestionably,
         there are a variety of innocent explanations for the
         observed conduct[,] including the lack of traffic on an
         isolated country road or the de minimis nature of the
         observations under the circumstances in which they


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            occurred.     Nevertheless, one would not expect under
            normal circumstances to observe a vehicle traveling
            entirely in the wrong lane of travel for no apparent reason.
            While there are certainly explanations for the conduct,
            there is also a reasonable articulable basis for Trooper
            Thierwechter to stop the vehicle for further investigation as
            to the legality of those reasons.

Id. at 3.

      Appellant proceeded to a non-jury trial on February 18, 2016, and the

trial court found him guilty of the aforementioned DUI charges. On April 18,

2016, the trial court imposed sentence. On April 26, 2016, Appellant timely

appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal:

            Whether the suppression court erred in denying
            [Appellant’s] motion for suppression based upon a vehicle
            stop where the physical evidence, comprised of an in-car
            camera recording and photographs of the relevant area,
            established that the police officer could not see the area
            where the officer claims he did view the driving that
            supported the basis of the vehicle stop.

Appellant’s Brief at 5.

      This Court’s standard of review in addressing a challenge to the denial

of a suppression motion

            is limited to determining whether the suppression court’s
            factual findings are supported by the record and whether
            the legal conclusions drawn from those facts are correct.
            Because the Commonwealth prevailed before the
            suppression court, we may consider only the evidence of
            the Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the suppression
            court’s factual findings are supported by the record, [the
            appellate court is] bound by [those] findings and may


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          reverse only if the court’s legal conclusions are erroneous.
          Where . . . the appeal of the determination of the
          suppression court turns on allegations of legal error, the
          suppression court’s legal conclusions are not binding on an
          appellate court, whose duty it is to determine if the
          suppression court properly applied the law to the facts.
          Thus, the conclusions of the courts below are subject to [ ]
          plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015)

(citation omitted).

      “The Fourth Amendment of the Federal Constitution and Article I,

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures.” Commonwealth v. Walls, 53 A.3d

889, 892 (Pa. Super. 2012). In Fourth Amendment jurisprudence, there are

three categories of interactions between citizens and the police:

          The first [category] is a “mere encounter” (or request for
          information) which need not be supported by any level of
          suspicions, but carries no official compulsion to stop or
          respond. The second, an “investigative detention”, must
          be supported by a reasonable suspicion; it subjects a
          suspect to a stop and a period of detention, but does not
          involve such coercive conditions as to constitute the
          functional equivalent of an arrest. Finally, an arrest or
          “custodial detention” must be supported by probable
          cause.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted). Reasonable suspicion

          is a less stringent standard than probable cause necessary
          to effectuate a warrantless arrest, and depends on the
          information possessed by police and its degree of reliability
          in the totality of the circumstances. In order to justify the
          seizure, a police officer must be able to point to specific
          and articulable facts leading him to suspect criminal


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         activity is afoot.     In assessing the totality of the
         circumstances, courts must also afford due weight to the
         specific, reasonable inferences drawn from the facts in
         light of the officer’s experience and acknowledge that
         innocent facts, when considered collectively, may permit
         the investigative detention.

Commonwealth v. Clemens, 66 A.3d 373, 379 (Pa. Super. 2013) (citation

omitted).

      The legislature has defined the level of suspicion required for vehicle

stops as follows:

         Whenever a police officer . . . 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 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 provision, this Court has

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) (citations omitted). We examine the totality of

the circumstances in the course of reviewing whether an officer had

reasonable suspicion to stop a vehicle.      Commonwealth v. Holmes, 14



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A.3d 89, 96 (Pa. 2011).       This test “does not limit our inquiry to an

examination of only those facts that clearly indicate criminal conduct.

Rather, even a combination of innocent facts, when taken together, may

warrant further investigation by the police officer.”     Commonwealth v.

Smith, 917 A.2d 848, 857 n.4 (Pa. Super. 2007) (citation and quotation

marks omitted).

      Mere reasonable suspicion will not justify a vehicle stop “when the

driver’s detention cannot serve an investigatory purpose relevant to the

suspected violation.” Feczko, 10 A.3d at 1291. In this circumstance, the

officer must articulate specific facts that he has at the time of the stop which

provide probable cause to believe that the vehicle or the driver is in violation

of some provision of the Vehicle Code. Id.

      Illustrative of the reasonable suspicion and probable cause 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
         Commonwealth v. Enick, 70 A.3d 843, 846 (Pa. Super.
         2013) (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.


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          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 [Holmes, 14 A.3d at 96-97] (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
          motorist for failing to drive within a single lane—and not to
          investigate possible DUI—he needed probable cause to
          stop).

Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).

         Having studied the record, particularly Trooper Thierwechter’s dash

cam video, we conclude that the record supports the trial court’s findings of

fact.    We also agree with the trial court’s conclusions of law.                 Trooper

Thierwechter suspected that Appellant was driving while intoxicated and thus

needed     reasonable     suspicion    to   stop   Appellant’s    vehicle   for   further

investigation.     See id.      Viewed objectively through the eyes of a trained

police   officer   such    as     Trooper    Thierwechter,4      the   totality   of   the



4
  Trooper Thierwechter has been a state trooper since February 2013. N.T.,
11/19/15, at 4.      He has undergone extensive training relative to the
detection of impaired drivers. Id. He made between twenty and twenty-five
DUI arrests before Appellant’s arrest, and he comes into contact with
persons under the influence of drugs or alcohol at least once every week.
Id. at 5. Although the trial court did not discuss Trooper Thierwechter’s
background in its findings of fact, we can take this evidence into
consideration because it supports the position of the Commonwealth, the
prevailing party in the suppression proceeding. See Jones, 121 A.3d at 526
(“Because the Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and so much of the



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circumstances furnished reasonable suspicion to believe that Appellant was

driving while intoxicated.   The trial court perceptively observed that the

minimal evidence of weaving, standing alone, did not provide reasonable

suspicion to stop Appellant’s vehicle.    Nevertheless, the totality of the

circumstances—Appellant’s act of driving in the wrong lane for no apparent

reason, the lateness of the hour, and his minimal weaving—provided

sufficient reason for Trooper Thierwechter to stop Appellant’s vehicle to

investigate whether he was intoxicated.

     Therefore, we conclude the trial court properly denied Appellant's

motion to suppress evidence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2017




evidence for the defense as remains uncontradicted when read in the
context of the record as a whole.”).



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