J-A11028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SELVER HASANHODZIC                         :
                                               :
                       Appellant               :   No. 1684 MDA 2017

            Appeal from the Judgment of Sentence October 11, 2017
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0002272-2016


BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 20, 2018

        Appellant Selver Hasanhodzic appeals from the judgment of sentence

following his conviction for driving under the influence of alcohol (DUI)-general

impairment.1 Appellant claims that the trial court erred in denying his pre-

trial motion to suppress. We affirm.

        We state the relevant facts from the suppression hearing as follows. On

October 7, 2016, at approximately 5:10 a.m., Pennsylvania State Troopers

Cory Blowers and Lucas J. Hull were traveling northbound when they observed

an oncoming vehicle, traveling southbound. As the vehicle approached the

troopers’ vehicle, the driver, later identified as Appellant, activated the high-


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(a)(1).
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beam headlights for approximately one second.2 Based on that observation,

the troopers initiated a traffic stop for a violation of 75 Pa.C.S. § 4306, which

requires motorists to use low beam headlights when approaching an oncoming

vehicle within 500 feet.

        Appellant was subsequently arrested and charged with two counts of

DUI, one count of careless driving, and one count of failure to use low beam

lights.3 On February 2, 2017, Appellant filed an omnibus pre-trial motion to

suppress claiming that the troopers lacked probable cause to believe that he

violated section 4306. Specifically, Appellant asserted that he flashed his high

beams at the troopers because he believed the troopers’ had their high beams

activated and that such conduct was permissible under section 4306. The trial

court denied Appellant’s motion after a hearing on April 17, 2017.

        Following a stipulated bench trial on August 18, 2017, the court found

Appellant guilty of DUI–general impairment (second offense). See Trial Ct.




____________________________________________


2  At the suppression hearing, Trooper Hull initially stated that Appellant
flashed his high beams twice and that Appellant’s high beams remained on
when he passed the police vehicle. N.T., 4/17/17, at 18. However, after
viewing the motor vehicle recording (MVR), the trooper clarified that Appellant
did not leave his high beams on, but instead flashed his high beams at them
once. Id. at 19-20. The trial court, which also reviewed the MVR, found that
Appellant flashed his high beams at the troopers’ vehicle one time. Trial Ct.
Op., 10/16/17, at 23.

3   75 Pa.C.S. §§ 3802(a)(1), 3802(b), 3714(a), and 4306(a).




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Order, 8/18/17. On October 11, 2017, the trial court sentenced Appellant to

five days to six months of incarceration.

       Appellant filed a timely notice of appeal on October 27, 2017. That same

date, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement within

twenty-one days of the order.          On November 30, 2017, Appellant filed an

untimely Rule 1925(b) statement.4

       The trial court filed a Rule 1925(a) opinion addressing Appellant’s issues

on December 12, 2017. The trial court opined:

       The troopers observed [Appellant] utilize his high[]beams while
       approaching their cruiser, and within 500 feet thereof. Trooper
       Hull credibly testified that he was not operating his cruiser with
       the high[]beam lights activated at that time. Finally, there were
       no road hazards or emergency situations in the roadway which
       would, within the knowledge/perception of the troopers at the
       time in question, move the observed violation into the realm of
       exception set forth in 75 Pa.C.S. § 4306(b)(2).

       The thrust of [Appellant’s] argument is founded in the idea that
       he was flashing his high[]beams because the troopers were
       traveling with their high[]beams activated towards him, or he
       perceived them to be. If this appeal was a challenge to a
       conviction for violation 75 Pa.C.S. § 4306, his argument would fall
       to the weight this court assigned to [Appellant’s] testimony. It is
       not, however, relevant to the question of what was within the
       knowledge of the troopers at the point they decided to stop
       [Appellant’s] vehicle, based upon their observations and in
       consideration of their experience and training.

____________________________________________


4 The late filing of a Rule 1925(b) statement constitutes per se ineffectiveness
of counsel and does not result in waiver.          See Pa.R.A.P. 1925(c)(3);
Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009). Because the
trial court has filed an opinion addressing the issues in Appellant’s untimely
1925(b) statement, we will consider the merits of the issues presented on
appeal. See Burton, 973 A.2d at 433.

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Trial Ct. Op., 12/12/17, at 9-10.

      Appellant raises the following questions on appeal:

      1. Did the [trial] [c]ourt err in denying [Appellant’s] [o]mnibus
         [m]otion where members of the Pennsylvania State Police
         stopped [Appellant’s] vehicle simply because, and only
         because, [Appellant] flashed his high beam lights at the
         oncoming Pennsylvania State Police cruiser for approximately
         one second, where [Appellant] had reason to believe that the
         Pennsylvania State Police vehicle was driving with continuous
         high beams on and which was, in fact, blinding [Appellant]; and
         where [Appellant]’s actions were solely for the purposes of
         warning the oncoming vehicle that the driver's behavior was
         causing a dangerous condition?

      2. Was the fact that the State Police Troopers may have been
         unaware of the purpose of [Appellant]’s actions relevant and
         sufficient where [Appellant] was compliant with 75 Pa.C.S. §
         4306?

Appellant’s Brief at 7.   Appellant’s two issues are related, and we address

them jointly.

      Appellant contends that the trial court erred in denying his suppression

motion because the troopers did not have probable cause to stop his vehicle.

Id. at 10. Specifically, he argues that the troopers had no reason to believe

that he violated Section 4306(a) when he “merely flashed his high beams at

the police officers for approximately one second.” Id. In support, Appellant

claims that Section 4306 contains an exception that was applicable to his

conduct. Id. at 13-15 (citing 75 Pa.C.S. § 4306(c)). Appellant suggests that

the trial court focused too heavily on the perceptions of the troopers and the

facts within their knowledge at the time of the stop. Id. at 14-15. Appellant

argues that section 4306 instead required the troopers to consider why

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Appellant was flashing his lights at them, namely, Appellant’s belief that the

troopers’ high beams were activated. Id. at 15.

     Additionally, Appellant suggests:

     To find to the contrary of the above would lead to absurd results,
     and would allow [the police] to simply stop any vehicle that flashes
     its lights within 500 feet of any vehicle, simply because it
     occurred, as long as the Trooper himself is not aware of an
     emergency or other dangerous or hazardous condition ahead. This
     would include situations that occur on a daily basis, including
     altruistic acts such as flashing the headlights to allow someone to
     proceed before another at a stop sign or to enter the roadway
     from a business driveway. The entire purpose of the exception to
     75 [Pa.C.S. §] 4306 would be voided by the lower court’s ruling.

Id. at 16-17.

     It is well settled that our standard of review from an order denying 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.




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      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.


Commonwealth v. Ranson, 103 A.3d 73, 76 (Pa. Super. 2014) (citations

and quotations omitted).

      Section 4306 of the Motor Vehicle Code provides, in pertinent part:

             (a) Approaching an oncoming vehicle—Whenever the
             driver of a vehicle approaches an oncoming vehicle within
             500 feet, the driver shall use the low beam of light.

                                           ***

             (c) Exception—

                                           ***

             (2) Nothing in this section shall limit drivers from flashing
             high beams at oncoming vehicles as a warning of roadway
             emergencies or other dangerous or hazardous conditions
             ahead.

75 Pa.C.S. § 4306(a), (c)(2) (emphases added).

      By way of a brief background to section 4306, the Pennsylvania

Supreme Court has held that a driver did not violate section 4306, when,

during the daytime, the driver flashed his high beams to “warn other drivers

of   the   presence   of   police   that   were   enforcing   the   speed   limit.”

Commonwealth v. Beachey, 728 A.2d 912, 912-13 (Pa. 1999) (reversing

the driver’s conviction for violating section 4306 and reasoning that when read

in pari materia with the rule that headlamps are required at night or in

unfavorable conditions, section 4306 did not apply to daytime uses of high

beams). The Beachey Court emphasized that the policy underlying section



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4306 was “to reduce the obvious safety hazard that exists when a driver

suffers momentary blindness upon being subjected even very briefly to the

intense brightness of high beam lamps.” Id. at 913.

       In Commonwealth v. Bush, 166 A.3d 1278 (Pa. Super. 2017), the

defendant was convicted of various offenses after a state trooper stopped him

for a violation of section 4306. Bush, 166 A.3d at 1280. On appeal, the

defendant asserted that he was not required to dim his lights because a

guardrail and concrete barrier separated his vehicle from the trooper’s vehicle.

Id. at 1284. The Bush Court rejected that argument noting, in part, that the

plain language of section 4306(a) gives rise to a traffic violation “whenever

the driver approaches an oncoming vehicle within 500 feet and does not use

the vehicle’s low beam lights.”5 Id.

       This Court has held that probable cause is required for a traffic stop

based on a violation of Section 4306(a).6 Id. at 1282. Our Supreme Court

has defined probable cause as follows:

____________________________________________


5 We note, however, that the Bush Court did not address the statutory
exception upon which Appellant currently relies. See Bush, 166 A.3d at 1283
n.2.

6 The Vehicle Code provides that “[w]henever a police officer . . . has
reasonable suspicion that a violation of this title is occurring or has occurred,
he may stop a vehicle.” 75 Pa.C.S. § 6308(b). However, the reasonable
suspicion standard applies only to stops that serve an investigatory purpose.
Commonwealth v. Feczko, 10 A.3d 1285, 1290 (Pa. Super. 2010). When
the suspected violation of the Vehicle Code does not require investigation,
probable cause is required. Id. ((quoting Commonwealth v. Chase, 960



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       Probable cause is made out when the facts and circumstances
       which are within the knowledge of the officer at the time of the
       stop, and of which he has reasonably trustworthy information, are
       sufficient to warrant a man of reasonable caution in the belief that
       the suspect has committed or is committing a crime. The question
       we ask is not whether the officer’s belief was correct or more likely
       true than false. Rather, we require only a probability, and not a
       prima facie showing, of criminal activity. In determining whether
       probable cause exists, we apply a totality of the circumstances
       test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation omitted).

We further note that

       [p]robable cause does not require certainty, but rather exists
       when criminality is one reasonable inference, not necessarily even
       the most likely inference. . . . [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.

Commonwealth v. Spieler, 887 A.2d 1271, 1275 (Pa. Super. 2005)

(citations and quotation marks omitted).

       In the instant case, Trooper Hull testified that Appellant flashed his high

beams while approaching the troopers’ vehicle. See N.T., 4/17/17 at 18. He

further testified that based on his knowledge and experience, he estimated

that Appellant’s vehicle was within 500 feet of the troopers’ vehicle at the time

the high beams were used. Id. Based on those observations, Trooper Hull


____________________________________________


A.2d 108, 115–16 (Pa. 2008) (“[A] vehicle stop based solely on offenses not
investigable cannot be justified by a mere reasonable suspicion. . . . An officer
must have probable cause to make a constitutional vehicle stop for such
offenses”)).

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concluded that Appellant was in violation of section 4306, and he executed a

traffic stop on that basis. Id.

      Thus, our review reveals that Trooper Hull articulated specific facts that

provided probable cause to believe Appellant violated section 4306 of the

Motor Vehicle Code and which justified the traffic stop. See Martin, 101 A.3d

at 721. We also note that although an actual violation of the Motor Vehicle

Code need not be ultimately established to constitute probable cause, Trooper

Hull confirmed that there were no observable hazards at the time of the stop

that justified Appellant’s use of his high beams.     Additionally, the trooper

confirmed that his headlights, while bright, were on the low setting when

Appellant flashed his high beams. Thus, Appellant’s specific argument—i.e.,

that he was justified in “flashing” his high beams at the troopers’ vehicle under

a mistaken belief that the troopers were using their high beams—merits no

relief. See Spieler, 887 A.2d 1275.

      For all of the aforementioned reasons, we agree with the trial court’s

conclusion that based on Trooper Hull’s observations at the time of the stop,

probable cause existed to justify the traffic stop of Appellant’s vehicle.

Accordingly, we affirm.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/20/2018




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