J-S43002-17




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMES S. KARAM

                            Appellant                 No. 1031 WDA 2016


         Appeal from the Judgment of Sentence Entered June 16, 2016
                In the Court of Common Pleas of Butler County
              Criminal Division at No: CP-10-CR-0001593-2015


BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                     FILED: SEPTEMBER 29, 2017

        Appellant, James S. Karam, appeals from the June 16, 2016 judgment

of sentence imposing six months of intermediate punishment for driving

under the influence, 75 Pa.C.S.A. § 3802(a)(2). We affirm.

        The trial court summarized the pertinent facts:

               Shortly before 1:53 a.m. on May 3, 2015, while working a
        roving DUI patrol, Trooper [Robert] Downs was turning off of
        Lions Road onto New Castle Road in Butler Township when he
        noticed two motorcycles at the stop sign on Greenwood Drive.
        The motorcycles accelerated rapidly from the stop sign to a high
        speed. They emitted a loud noise as they did so. Trooper
        Downs observed the motorcycles approach the then blinking red
        light at the intersection of New Castle Road and Route 356 near
        the entrance to the Moraine Point Plaza. The motorcycles slowed

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*   Former Justice specially assigned to the Superior Court.
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      and rolled through the blinking red light without either of the
      operators putting their feet on the ground. The motorcycles
      proceeded to travel south on Route 356. Trooper Downs noticed
      that the motorcycle on the left was swerving within the right
      travel lane and it appeared to him that the motorcycle crossed
      into the center lane more than once as it traveled between the
      Moraine Point Plaza and Duffy Road. The motorcycles then
      turned right onto Duffy Road. It appeared to Trooper Downs
      that the left motorcycle made the turn from the lane that was
      designated for straight travel only. Trooper Downs activated his
      overhead lights just after the motorcycles turned onto Duffy
      Road. The motorcycles pulled over. The left motorcycle—the
      one which Trooper Downs had observed swerving and which he
      believed he had observed making an improper turn—was
      operated by [Appellant], and there was a passenger on the back.
      The other motorcycle sped away as Trooper Downs approached.
      After reviewing the video from his mobile video recorder at the
      time of the suppression hearing, Trooper Downs testified that it
      appeared from the video that [Appellant’s] motorcycle crossed
      from the straight line into the turning lane just before it turned
      right onto Duffy Road.

Trial Court Opinion, 1/21/17, at 1-2.

      Appellant submitted to a breath test, which revealed a .095% blood

alcohol content. Appellant was arrested and charged with DUI and several

other Vehicle Code violations.   Prior to trial, he filed a motion to suppress

the evidence of his BAC, reasoning that Trooper Downs lacked probable

cause to stop him for any vehicle code violation. The trial court denied that

motion.   The case proceeded on stipulated facts, and the trial court found

Appellant guilty of DUI and sentenced him as set forth above. This timely

appeal followed.   The sole issue before is whether the trial court erred in

finding that Trooper Downs had probable cause to stop Appellant for a

Vehicle Code violation.



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       We review the trial court’s order as follows:

             Our 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, we are bound by these findings and
       may reverse only if the court’s legal conclusions are erroneous.
       Where, as here, 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 law of the courts below are subject to our plenary
       review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). The scope of our

review is limited to the evidence produced at the suppression hearing. In re

L.J., 79 A.3d 1073, 1079 (Pa. 2013).

       Instantly, Trooper Downs stopped Appellant for violations of §§3309

and 37141 of the Motor Vehicle Code.             Neither violation required further

investigation. Thus he was required to have probable cause in support of his

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1  Section 3309 provides in relevant part: “A vehicle shall be driven as
nearly as practicable entirely within a single lane and shall not be moved
from the lane until the driver has first ascertained that the movement can be
made with safety.” 75 Pa. C.S.A. § 3309(1). Section 3714 provides: “Any
person who drives a vehicle in careless disregard for the safety of persons or
property is guilty of careless driving, a summary offense.” 75 Pa.C.S.A.
§ 3714(a).




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vehicle stop. 75 Pa.C.S.A. § 6308(b); Commonwealth v. Chase, 960 A.2d

108 (Pa. 2008); Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.

Super. 2010) (en banc), appeal denied, 25 A.3d 327 (Pa. 2011).

“[P]robable cause does not require certainty, but rather exists when

criminality is one reasonable inference, not necessarily even the most likely

inference.”   Commonwealth v. Salter, 121 A.3d 987, 994 (Pa. Super.

2015) (quoting Commonwealth v. Spieler, 887 A.2d 1271, 1275 (Pa.

Super. 2005)).     “The 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 violation of

some provision of the Vehicle Code.”    Commonwealth v. Lindblom, 854

A.2d 604, 607 (Pa. Super. 2004) (quoting Commonwealth v. Mickley, 846

A.2d 686, 689 (Pa. Super. 2004), appeal denied, 860 A.2d 489 (Pa.

2004)), appeal denied, 868 A.2d 1198 (Pa. 2005).          “[W]hile an actual

violation of the [Vehicle Code] need not ultimately be established to validate

a vehicle stop, a police officer must have a reasonable and articulable belief

that a vehicle or driver is in violation of the [Vehicle Code] in order to

lawfully stop the vehicle.” Spieler, 887 A.2d at 1275.

      Appellant argues that Trooper Downs did not have probable cause for

the vehicle stop because his Vehicle Code infractions were momentary and

minor. Appellant also noted that video footage from Trooper Downs’ vehicle

demonstrates that Appellant veered from the center lane to the right turn


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lane shortly before making his right turn. Appellant asserts that his Vehicle

Code infractions did not place anyone in any danger. Thus, Appellant argues

Trooper Downs had no probable cause to stop Appellant for a violation of

§ 3309(1).

     Appellant relies on Commonwealth v. Cook, 865 A.2d 869 (Pa.

Super. 2004), appeal denied, 880 A.2d 1236 (Pa. 2005), for the

proposition that “[w]hether an officer possesses probable cause to stop a

vehicle for a violation of this section depends largely upon on whether a

driver’s movement from his lane is done safely.” Commonwealth v. Cook,

865 A.2d 869, 874 (Pa. Super. 2004).      Probable cause existed for a stop

under § 3309 in Cook, where the defendant crossed the fog line by several

feet and where the arresting officer had information from dispatch that the

defendant was seen driving erratically. Id. In contrast, crossing the white

fog line by six to eight inches twice over the span of a quarter mile was

insufficient to create probable cause. Id. at 874 (citing Commonwealth v.

Gleason, 785 A.2d 983 (Pa. 2001), superceded by statute as stated in

Commonwealth v. Holmes, supra).

     The trial court cited Lindblom, in which police stopped the defendant

for careless driving after the defendant weaved over the double yellow line

four or five times and crossed the berm four or five times. Lindblom, 854

A.2d at 606.   The trial court suppressed the evidence of the defendant’s

drunkenness, reasoning that the alleged careless driving did not create a


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safety hazard to any other vehicles.           Id. at 607.   This Court disagreed:

“[W]hile opposing traffic may not have been present during the entire time

[the witness] observed [the defendant] driving, we note that a motorist

may be stopped for reckless driving even if the only concern is for

the motorist’s own safety.” Id. at 608 (emphasis added).2

        The Lindblom Court quoted our Supreme Court’s assessment of the

competing interests involved in a vehicle stop:

               The Commonwealth has an interest in enacting and
        enforcing rules and regulations for the safety of those who travel
        its highways and roads. The police should thus be permitted a
        sufficient degree of latitude to stop automobiles in order to meet
        this objective. On the other side, the privacy interest of the
        individual has been cogently articulated by the United States
        Supreme Court[.]

Id. at 607-08 (quoting Commonwealth v. Whitmyer, 668 A.2d 1113,

1116 (Pa. 1995) superceded by statute as stated in Holmes, 14 A.3d

89).3

        At the suppression hearing, Trooper Downs testified that Appellant’s

motorcycle was weaving from left to right as Trooper Downs followed. N.T.

Hearing, 1/6/16, at 5. In so doing, Appellant crossed the centerline. Id. at
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2 In the quoted language, this Court referred to “reckless” driving (see 75
Pa.C.S.A. § 3736), but the opinion makes clear that the defendant in
Lindblom was charged with careless driving, as was Appellant in the instant
case. Lindblom, 854 A.2d at 605 n.2.

3 The superseding statute is an amended version of 75 Pa.C.S.A. § 6308(b).
The amendment does not affect our probable cause analysis in the instant
case.



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5, 17. Trooper Downs acknowledged that Appellant’s weaving several

crossings of the centerline were only momentary and were “minor”

compared to what he had seen in approximately 800 to 1,000 DUI arrests.

Id. at 17-18.    Nonetheless, Trooper Downs stated he was concerned with

the safety of Appellant’s passenger. Id. at 18, 20, 22.

      Upon review of video footage of Appellant’s faulty turn, Trooper Downs

acknowledged that Appellant crossed into the turning lane just before

making his turn:

            Q.   Trooper Downs, we just saw the video in this case,
      and to the point where [Appellant] makes that right onto South
      Duffy Road is it still your intention [sic] he turned from the
      wrong lane?

             A.    He started in the lane that goes straight and then
      right at the end he goes over into the turning lane.

Id. at 11.

      Earlier in his pursuit of Appellant, the record reflects that Trooper

Downs observed Appellant “roll through” a blinking red light:

             They came to the light there at the big intersection where
      Sam’s Plaza and the new Dicks and stuff is going in. It was a
      blinking red light. They came to the light. They stopped, but
      they didn’t stop, they didn’t put their feet down, they kind of
      rolled through.

Id. at 5.    Trooper Downs did not find this infraction significant enough to

initiate a stop, nor did the Commonwealth charge Appellant with failing to

stop at the flashing red light pursuant to 75 Pa.C.S.A. § 3114(a)(1).




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      We conclude that Trooper Downs had probable cause to stop Appellant

for careless driving under § 3714(a), in accord with this Court’s opinion in

Lindblom.     Careless disregard for the safety of others under § 3714(a)

occurs where the defendant engages in less than willful or wanton conduct

but more than ordinary negligence or mere absence of care under the

circumstances. Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super.

2010).   As recounted above, Appellant rolled through a blinking red light,

weaved left and right while crossing the centerline several times, and failed

to move from the center lane to the right turn lane until just before making

a right turn, all while carrying a passenger on his motorcycle.         These

transgressions, taken in tandem, were sufficient to give Trooper Downs

probable cause to believe Appellant engaged in careless driving, i.e. that he

exhibited more than mere negligence or lack of ordinary care.

      Appellant’s argument to the contrary depends largely upon his

assertion that no pedestrians or vehicles (other than Appellant’s companion

on the other motorcycle) were present. Appellant argues, therefore, that he

did not create a safety hazard.       The trial court disagreed, based on

Appellant’s “erratic   driving which was observed over a distance           of

approximately one mile.” Trial Court Opinion, 1/21/16, at 5. We discern no

reversible error in the trial court’s ruling. Indeed, Appellant simply ignores

the risks that his persistent erratic driving posed to himself and the

passenger he was carrying.     We held in Lindblom that concern for the


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safety of the driver is a sufficient basis to conduct a stop under § 3714.

Lindblom, 854 A.2d at 608. Given the facts of record, the trial court did

not err in finding that the motorcycle stop did not violate Appellant’s

constitutional rights.

      Because we have found Appellant’s sole argument lacking in merit, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Solano joins this memorandum.

      Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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