J-A10023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

AUGUSTA LAMAR GRIGGS

                            Appellant               No. 1571 MDA 2014


            Appeal from the Judgment of Sentence August 28, 2014
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007986-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                               FILED MAY 04, 2015

        Appellant, Augusta Lamar Griggs, appeals from the August 28, 2014

aggregate judgment of sentence of three days to six months’ imprisonment,

plus a $1,000.00 fine, imposed after he was found guilty of one count of

driving under the influence of a controlled substance (DUI).1   After careful

review, we affirm.

        We summarize the relevant factual history of this case as follows. On

August 17, 2013, Officer Isaiah Emenheiser of the North York County

Regional Police Department was travelling westbound on Route 30 just after

3:00 a.m. and stopped at a red light at the intersection of Route 30 and

Toronita Street. N.T., 4/25/14, at 5. Officer Emenheiser observed a gold

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1
    75 Pa.C.S.A. § 3802(d)(1)(i).
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vehicle travelling eastbound on Route 30, which “appeared to be travelling at

a very high rate of speed.” Id. at 6. The posted speed limit for that area is

40 miles per hour (MPH), but the officer estimated that the vehicle was

travelling in excess of 60 MPH. Id. Officer Emenheiser made a U-turn in an

effort to catch up to the gold vehicle. Id. His vehicle had to travel in excess

of 80 MPH over the course of one mile in order to catch up with the gold

vehicle.   Id. at 7.   Officer Emenheiser observed the car pass through the

next intersection at Eden Road without diminishing its speed.         Id.   The

officer caught up to the gold vehicle when it stopped at the following

intersection, at Sherman Street. Id. at 8. He waited for the traffic signal at

Sherman Street to turn green before activating his emergency lights and

effectuating the traffic stop for driving at unsafe speed. Id.

      Appellant stopped his vehicle on the side of the road and, when

approached, gave Officer Emenheiser his driver’s license. N.T., 7/14/14, at

13. Officer Emenheiser detected “a strong odor of an intoxicating beverage

about [Appellant’s] breath and person.”         Id.    He also observed that

Appellant had “red glassy eyes, and … [Appellant] stated he was coming

from a bar in downtown York.” Id. Appellant told Officer Emenheiser that

he had one beer.       Id.   After instructing Appellant to perform a few field

sobriety tests, Officer Emenheiser arrested Appellant for DUI.      Id. at 20.

Appellant gave a blood sample, which tested positive for marijuana. Id. at

22.


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       On November 27, 2013, the Commonwealth filed an information,

charging Appellant with various DUI violations.         On December 27, 2013,

Appellant filed a motion to suppress all evidence obtained as a result of the

August 17, 2013 traffic stop.           The trial court conducted a suppression

hearing on April 25, 2014, at which Officer Emenheiser testified as the

Commonwealth’s only witness.               Appellant did not testify or call any

witnesses.     On May 16, 2014, the trial court entered an order denying

Appellant’s motion to suppress.          Appellant proceeded to a one-day bench

trial on July 14, 2014, at the conclusion of which Appellant was found guilty

of one count of DUI of a controlled substance, and the remaining charges

were nolle prossed. On August 28, 2014, the trial court imposed a sentence

of three days to six months’ imprisonment, plus a $1,000.00 fine.            On

September 17, 2014, Appellant filed a timely notice of appeal.2

       On appeal, Appellant raises the following issue for our review.

              Whether the testimony by an officer of one or more
              of the enumerated conditions in 75 Pa.C.S. § 3361
              is, ipso facto, sufficient for probable cause of a
              violation of the [Motor Vehicle Code] without
              testimony regarding the actual or potential hazards
              then existing based on those conditions?

Appellant’s Brief at 4.




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2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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      We begin by noting our well-settled standard of review regarding

suppression issues.

            [I]n addressing a challenge to a trial court’s denial of
            a suppression motion [we are] limited to determining
            whether the factual findings are supported by the
            record and whether the legal conclusions drawn from
            those facts are correct. Since the Commonwealth
            prevailed in 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 record supports the
            factual findings of the trial court, we are bound by
            those facts and may reverse only if the legal
            conclusions drawn therefrom are in error.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)

(some brackets and citation omitted).

      The Fourth Amendment of the Federal Constitution provides, “[t]he

right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated

….”   U.S. Const. amend. IV.         Likewise, Article I, Section 8 of the

Pennsylvania Constitution states, “[t]he people shall be secure in their

persons, houses, papers and possessions from unreasonable searches and

seizures ….” Pa. Const. Art. I, § 8. “While warrantless seizures such as a

vehicle stop are generally prohibited, they are permissible if they fall within

one of a few well-delineated exceptions.” Commonwealth v. Brown, 996

A.2d 473, 476 (Pa. 2010) (citation omitted). One such exception is where,

“[a] police officer … has reasonable suspicion that a violation of the


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vehicle code has taken place, for the purpose of obtaining necessary

information to enforce the provisions of the code.”         Commonwealth v.

Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013) (emphasis in original),

appeal denied, 79 A.3d 1096 (Pa. 2013); accord 75 Pa.C.S.A. § 6308(b).

However, our Supreme Court has held that where the Motor Vehicle Code

violation is not investigable, Section 6308(b) does not apply and probable

cause is required in order for the stop to be constitutional. Commonwealth

v. Chase, 960 A.2d 108, 115-116 (Pa. 2008); accord Commonwealth v.

Feczko, 10 A.3d 1285, 1291-1292 (Pa. Super. 2010) (en banc), appeal

denied, 25 A.3d 327 (Pa. 2011).

              [In order for a non-investigable traffic stop to be
              constitutional, t]he officer must be able 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 some
              violation of some provision of the Vehicle Code.
              Probable cause does not require certainty, but rather
              exists when criminality is one reasonable inference,
              not necessarily even the most likely inference.

Commonwealth v. Enick, 70 A.3d 843, 846 n.3 (Pa. Super. 2013) (internal

quotation marks and citations omitted), appeal denied, 85 A.3d 482 (Pa.

2014).3


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3
   As we explain infra, the statute at issue here is Section 3361, which is
titled “[d]riving vehicle at safe speed”. 75 Pa.C.S.A. § 3361. It is unclear
what investigatory purpose would be served by a traffic stop for a violation
of this section because once the stop has occurred, the alleged unsafe
driving has also stopped. Notwithstanding our Supreme Court’s decision in
(Footnote Continued Next Page)


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      As noted above, Officer Emenheiser stopped Appellant’s vehicle under

Section 3361 of the Motor Vehicle Code, which provides as follows.

             § 3361. Driving vehicle at safe speed

             No person shall drive a vehicle at a speed greater
             than is reasonable and prudent under the conditions
             and having regard to the actual and potential
             hazards then existing, nor at a speed greater than
             will permit the driver to bring his vehicle to a stop
             within the assured clear distance ahead. Consistent
             with the foregoing, every person shall drive at a safe
             and appropriate speed when approaching and
             crossing an intersection or railroad grade crossing,
             when approaching and going around curve, when
             approaching a hill crest, when traveling upon any
             narrow or winding roadway and when special
             hazards exist with respect to pedestrians or other
             traffic or by reason of weather or highway
             conditions.

75 Pa.C.S.A. § 3361.

      In Commonwealth v. Heberling, 678 A.2d 794 (Pa. Super. 1996),

this Court considered whether the Commonwealth presented sufficient
                       _______________________
(Footnote Continued)

Chase, one decision of this Court subsequently applied a reasonable
suspicion standard to Section 3361. See generally Commonwealth v.
Perry, 982 A.2d 1009, 1010 (Pa. Super. 2009). However, in Fzecko, this
Court sitting en banc called the propriety of Perry’s use of reasonable
suspicion into question. Fzecko, supra at 1291 n.2. Although the parties
agreed below in the trial court that probable cause was the correct standard,
the Commonwealth appears to argue on appeal that the reasonable
suspicion standard controls. Compare, N.T., 4/25/14, at 26 (agreeing with
Appellant that Officer Emenheiser needed probable cause), with
Commonwealth’s Brief at 8-10 (discussing how Officer Emenheiser had
reasonable suspicion to stop Appellant’s vehicle under Section 3361). Even
if there were a conflict still existing, because we conclude that Officer
Emenheiser possessed probable cause, we need not resolve said conflict in
this case.



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evidence to prove beyond a reasonable doubt that Heberling violated Section

3361. This Court succinctly summarized the relevant facts as follows.

                 On July 9, 1994, a police officer saw
           [Heberling] travelling “at an extreme rate of speed”
           in a 45 mile-per-hour zone. [Heberling] was nearing
           an intersection (approximately one-tenth of a mile
           down the road) and the crest of a hill (approximately
           two- to three-tenths of a mile ahead). [Heberling]
           was stopped before reaching either of these two
           points and was issued a citation charging a violation
           of section 3361. Weather conditions were clear and
           normal. No other traffic was affected nor were any
           pedestrians at risk.

Id. at 794-795. On appeal, Heberling argued that the Commonwealth was

required to produce evidence regarding “any ‘prevailing conditions’ or

‘hazards’ that made her excessive speed unreasonable.” Id. at 794. After

engaging in statutory construction analysis, this Court reasoned that the

Commonwealth had met its burden based on the following.

                  In the instant case the trial court found that
           [Heberling] was approaching an intersection and a
           hill crest at an extreme rate of speed:

                       In dismissing the [Heberling]’s appeal,
                 this Court notes that the statute requires the
                 operator to have regard for the actual and
                 potential hazards then existing. The statute
                 requires the operator to drive at a safe and
                 appropriate speed when approaching … an
                 intersection … when approaching a hill crest …
                 the Court found as a fact in the instant case
                 that the defendant was travelling at an
                 extreme rate of speed while approaching an
                 intersection and hill crest and determined
                 under the requirements of the statute that the
                 Commonwealth has met its burden.


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              Trial Court Opinion, 9/27/95, at 9 (emphasis in
              original).      “Approaching a hill crest” and
              “approaching … an intersection” are “conditions”
              specifically enumerated in the statute that require a
              driver to proceed at a safe and appropriate speed.
              When [Heberling] drove at an excessive speed under
              these conditions, she violated section 3361.

Id. at 797.

       After careful review of the certified record, we conclude Heberling is

dispositive of the instant case. As noted above, Officer Emenheiser testified

that he estimated Appellant’s vehicle was travelling in excess of 60 MPH in a

40 MPH zone. N.T., 4/25/14, at 6. This was informed by the fact that he

had to travel in excess of 80 MPH over the course of one mile in order to

catch up to Appellant’s vehicle.         Id. at 7.   Appellant did not produce any

evidence to the contrary in the trial court.4 The testimony also reveals that

after the intersection at Sherman Street, there was a hill crest at Toronita

Street where Officer Emenheiser first observed Appellant’s vehicle traveling

at a high rate of speed. Id. at 16. There were other hill crests at Loucks

Mill Road and Eden Road, both were intersections that Appellant drove

through at a high rate of speed, before being stopped by Officer Emenheiser.


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4
  We note that our Supreme Court has held that when considering a
challenge to a trial court’s suppression ruling, our review is limited to the
suppression hearing record, and “it is inappropriate to consider trial evidence
as a matter of course, because it is simply not part of the suppression
record, absent a finding that such evidence was unavailable during the
suppression hearing.” In re L.J., 79 A.3d 1073, 1080, (Pa. 2013).



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Id. at 7, 13, 16. As this Court noted in Heberling, the Commonwealth can

satisfy its burden at trial beyond a reasonable doubt by showing that a

driver went through an intersection at a hill crest at a high rate of speed.

Heberling, supra.          This Court has held that the Fourth Amendment’s

textual standard of probable cause is far less demanding than the trial

standard of beyond a reasonable doubt.           Commonwealth v. Evans, 661

A.2d 881, 885 (Pa. Super. 1995) (citation omitted), affirmed, 685 A.2d 535

(Pa. 1996). We reject Appellant’s argument that a more searching factual

inquiry is required.5 See Appellant’s Brief at 13 (stating, “[t]here has to be

more to an officer’s testimony than regurgitating the language of the statute

in order to make out probable cause[]”). Because the Commonwealth may

satisfy its burden of beyond a reasonable doubt by showing a motorist

approached intersections and went over hill crests at a high rate of speed, it

logically follows that the Commonwealth may meet its burden to show

probable cause by the same evidentiary showing.           As a result, Appellant’s

issue on appeal lacks merit. See Washington, supra.

       Based on the foregoing, we conclude the trial court properly denied

Appellant’s motion to suppress.          Accordingly, the trial court’s August 28,

2014 judgment of sentence is affirmed.

       Judgment of sentence affirmed.
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5
  Appellant cites no authority for the proposition that the Fourth Amendment
requires such an inquiry.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2015




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