J-S29033-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GALINA LIALKO                              :
                                               :
                       Appellant               :   No. 2891 EDA 2019

        Appeal from the Judgment of Sentence Entered October 1, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0006899-2018


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JULY 21, 2020

        Galina Lialko (Lialko) appeals the judgment of sentence entered by the

Court of Common Pleas of Delaware County (trial court). Following a bench

trial, Lialko was found guilty of driving under the influence of alcohol (DUI)1

and driving with a blood-alcohol concentration of over 0.16%.2 The counts

were merged for sentencing purposes, and Lialko received two years of

intermediate punishment, followed by one year of probation. Lialko contends

in this appeal that her convictions must be overturned because the trial court




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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(a)(1).

2   75 Pa.C.S. § 3802(c).
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erroneously denied her motion to suppress evidence obtained during the

subject traffic stop. We affirm.

      The material facts of this case, as summarized in the trial court’s

1925(a) opinion, are not in dispute. See 1925(a) Opinion, 11/20/2019, at 3-

5.   On June 8, 2018, at about 3:00 a.m., a patrol officer observed Lialko

driving alone in her car on an interstate highway. In view of the officer, she

made an “abrupt and wide” lane change, passing a vehicle from the left lane

to the right lane. Id. at 5. Moments later, Lialko repeated the maneuver

when she caught up to another motorist. Id.

      The officer followed Lialko as she moved her vehicle into the right lane

and weaved through traffic. The officer trailed Lialko at speeds up to 75 miles

per hour in a zone with a posted speed limit of 55 miles per hour. However,

the officer did not clock that speed for 3/10 of a mile because of Lialko’s erratic

breaking and acceleration. Id. at 4.

      On three occasions, the officer saw Lialko’s vehicle shortly cross a solid

white “fog line” on the right shoulder of the road.       Id.   Finally, as Lialko

appeared to be poised to turn off the highway at an exit about two miles from

where the officer first spotted her, Lialko again drove on, at which point the

officer pulled her over to investigate a possible DUI. Id. at 5.

      As recounted by the officer, Lialko seemed sluggish; her eyes were

bloodshot; her speech was slurred; and her vehicle smelled strongly of

alcohol. See Affidavit of Probable Cause, 7/9/2018, at 1. The officer had


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Lialko perform a series of roadside exercises. Based on her performance, she

was arrested on suspicion of DUI. About two hours after she was taken into

custody, Lialko took a breathalyzer test registering a blood-alcohol level of

0.198%, over double the legal limit. Id.

       At trial, Lialko sought to suppress the result of the breathalyzer test, as

well as all other evidence obtained by the police after she was pulled over,

arguing that it was the fruit of an unreasonable search. 3 Lialko contended

that because the officer did not observe her violate any traffic law, he did not

have reasonable suspicion that she was intoxicated.

       The trial court denied Lialko’s suppression motion, ruling that the traffic

stop was valid. Lialko went to trial, where she was found guilty and sentenced

as outlined above. Lialko timely appealed, and the trial court set forth its

findings of fact and rulings of law in a 1925(a) opinion concluding that under

the totality of the circumstances, the officer gave a credible account

supporting reasonable suspicion for the stop.              See 1925(a) Opinion,

11/20/2019, at 4-5.

       The sole issue Lialko raises on appeal is whether, as a matter of law,

the trial court erred in finding that the officer’s observations justified her initial


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3 A certificate of speedometer accuracy and a video recording taken from
within the patrol vehicle were put into evidence at the suppression hearing,
which was held on April 4, 2019. The bench trial was held on August 5, 2019.




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detention. See 1925(b) Statement, 11/6/2019, at 1. We find that since the

trial court believed the officer to be credible and the officer’s account is

sufficient to establish the stop’s legality, the trial court did not err in denying

Lialko’s motion to suppress the evidence obtained after the traffic stop began.4

       “A warrantless seizure is presumptively unreasonable under the Fourth

Amendment, subject to a few specifically established, well-delineated

exceptions.” Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008); see

also Terry v. Ohio, 392 U.S. 1 (1968) (same); Katz v. United States, 389

U.S. 347, 357 (1967) (same). One such exception is that police may briefly

detain motorists when the officers “witness or suspect a violation of traffic

laws, even if it is a minor offense.” Chase, 960 A.2d at 113. Such a detention

must be justified “at its inception,” as well as “reasonably related in scope to




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4 On review of an order denying the suppression of evidence, we apply the
following standard:

       We are limited to determining whether the lower court’s factual
       findings are supported by the record and whether the legal
       conclusions drawn therefrom are correct. We may consider the
       evidence of the witnesses offered by the Commonwealth, as
       verdict winner, and only so much of the evidence presented by
       [the] defense that is not contradicted when examined in the
       context of the record as a whole. We are bound by facts supported
       by the record and may reverse only if the legal conclusions
       reached by the court were erroneous.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).


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the circumstances which justified the interference in the first place.”

Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000).

      To stop a vehicle because of a suspected DUI, an officer must have

reasonable suspicion of that crime as opposed to the more stringent standard

of probable cause:

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered. If it is not necessary
      to stop the vehicle to establish that a violation of the Vehicle Code
      has occurred, an officer must possess probable cause to stop the
      vehicle. Where a violation is suspected, but a stop is necessary
      to further investigate whether a violation has occurred, an officer
      need only possess reasonable suspicion to make the stop.
      Illustrative of these two 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.

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

75 Pa.C.S. § 6308(b) (authorizing police stop a vehicle when there is

reasonable suspicion that a Traffic Code violation has occurred).

      An officer has “reasonable suspicion” of criminal activity or a violation

of the Vehicle Code where she can articulate “specific observations which, in

conjunction with reasonable inferences derived from these observations led

[her] reasonably to conclude, in light of [her] experience, that criminal activity

was afoot and the person [s]he stopped was involved in that activity.”

Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007) (quoting

Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006)).

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       Although Lialko correctly points out that she was never seen violating

the Traffic Code prior to the stop in question,5 a violation is not necessary to

establish the legality of a stop for the purposes of investigating a DUI:

       [I]f 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.

Salter, 121 A.3d at 993 (citations omitted); see also Commonwealth v.

Cook, 735 A.2d 673, 676 (Pa. 1999) (“[E]ven a combination of innocent facts,

when taken together, may warrant further investigation by the police

officer.”).

       In this case, there were sufficient circumstances prior to the stop that

could justify the need for an officer to investigate if Lialko was driving while

impaired by alcohol or a controlled substance. The officer testified that he

saw Lialko’s vehicle exceed the posted speed limit by about 20 miles per hour.

Over a two-mile stretch, the officer also saw Lialko weaving through traffic,

crossing over the fog line three times, and drifting within her lane. Lialko’s

conduct at the wheel also suggested that she was confused, as evidenced by

her indecision at highway exits and aggressive passes of other drivers.



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5 The officer and the Commonwealth have never attempted to show that the
stop was justified by a speeding violation alone. Rather, Lialko’s speeding was
referred to as part of the broader pattern of conduct that could indicate that
she was driving while impaired.

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      Even if it was not a crime to drive in the manner that the officer in this

case observed, these circumstances were nevertheless sufficient to justify a

reasonable inference that Lialko was committing the offense of DUI and that

a traffic stop would be needed for further investigation.            See, e.g.,

Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (DUI stop

valid where officer saw vehicle repeatedly drifting over fog line and median

line); Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007)

(legal stop where officer saw driver swerve out of lane three times in a dense

fog on a crowded road and twice over fog line); Commonwealth v. Sands,

887 A.2d 261, 272 (Pa. Super. 2005) (stop valid where officer saw driver

repeatedly weaving back and forth over fog line and likely exceeding speed

limit). Thus, the trial court did not err in denying Lialko’s suppression motion,

and the order on review must stand.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/20




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