J-S57043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHEN STRAWN, JR.,                       :
                                               :
                       Appellant               :       No. 702 MDA 2019

      Appeal from the Judgment of Sentence Entered November 27, 2018
               in the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0001996-2017

BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 13, 2020

        Stephen Strawn, Jr. (“Strawn”), pro se,1 appeals from the judgment of

sentence entered following his conviction of driving under the influence—

general impairment (“DUI”), and the summary offenses of driving while

license is suspended or revoked (DUI related), and driving vehicle at safe

speed.2 We affirm.

        On August 18, 2017, at about 2:19 a.m., Londonderry Township Police

Officer Scott Firestone (“Officer Firestone”) observed a silver Ford Focus

automobile traveling westbound on Horseshoe Pike, at an unreasonable

speed. After stopping the vehicle, Officer Firestone detected that the driver,


____________________________________________


1The trial court conducted a hearing pursuant to Commonwealth v. Grazier,
713 A.2d 81 (Pa. 1998), and appointed standby counsel to assist Strawn.

2   See 75 Pa.C.S.A. §§ 3802(a)(1), 1543, 3361.
J-S57043-19


Strawn, had an odor of alcohol on his breath.     Strawn admitted to Officer

Firestone that he had consumed two shots and one beer prior to driving.

       During the vehicle stop, Strawn was unable to produce identification,

but provided Officer Firestone with his name and date of birth. Upon checking

Strawn’s information, Officer Firestone discovered that Strawn’s operating

privileges were suspended/expired.3 Strawn consented to a breathalyzer test,

but declined to perform a field sobriety test. Later, Strawn refused to take a

blood alcohol content test.

       In its April 2, 2019, Opinion, the trial court summarized the extensive

procedural history underlying the instant appeal, which we adopt for the

purpose of this appeal, with the following addendum. See Trial Court Opinion,

4/2/19, at 2-7. On April 2, 2019, the trial court denied Strawn’s post-sentence

Motion.    Thereafter, Strawn filed the instant timely appeal, followed by a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal.

       Strawn does not include a statement of questions involved in his

appellate brief, as is required by Pa.R.A.P. 2116.    Rule 2116 provides, in

relevant part, as follows:

       General rule. The statement of the questions involved must
       state concisely the issues to be resolved, expressed in the terms
       and circumstances of the case but without unnecessary detail. The
____________________________________________


3 It was subsequently determined that Strawn’s operating privileges had
expired on June 30, 2001.


                                           -2-
J-S57043-19


      statement will be deemed to include every subsidiary question
      fairly comprised therein. No question will be considered
      unless it is stated in the statement of questions involved or
      is fairly suggested thereby. Each question shall be followed by
      an answer stating simply whether the court or government unit
      agreed, disagreed, did not answer, or did not address the
      question. If a qualified answer was given to the question,
      appellant shall indicate the nature of the qualification, or if the
      question was not answered or addressed and the record shows
      the reason for such failure, the reason shall be stated briefly in
      each instance without quoting the court or government unit below.

Pa.R.A.P. 2116 (emphasis added). Thus, we could deem all of Strawn’s issues

waived, as they are not included in a statement of questions involved. See

id. We recognize that Strawn has chosen to proceed pro se. However, pro

se status confers no special benefit upon a litigant, and any person choosing

to represent himself in a legal proceeding, must assume, to a reasonable

extent, his lack of expertise and legal training will be his undoing.

Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005).

Nevertheless, to the extent that we are able to discern Strawn’s claims, we

decline to find waiver in this instance.

      Strawn first challenges the denial of his pretrial suppression Motion.

See Brief for Appellant at 5 (unnumbered).      Strawn appears to challenge

whether probable cause existed to justify the vehicle stop effectuated by

Officer Firestone. Id. Strawn states that Officer Firestone stopped Strawn’s

vehicle for driving at an unsafe speed. Id. However, Strawn takes issue with

the Commonwealth’s evidence, particularly Officer Firestone’s testimony that

Strawn “was going faster than what I believe was the posted speed.” Id.


                                      -3-
J-S57043-19


(citation omitted). According to Strawn, Officer Firestone testified that Strawn

was traveling at over 50 miles per hour, five miles per hour over the posted

speed limit. Id. at 6 (unnumbered). Strawn contends that Officer Firestone

did not use a testing device to determine his speed, nor did a second officer

testify regarding Strawn’s speed. Id. at 6-7 (unnumbered). Strawn claims

that a second officer’s testimony is necessary to establish that he exceeded

the speed limit. Id. (unnumbered).

      Our standard of review of an order denying a motion to suppress is 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. Kemp, 195 A.3d 269, 275 (Pa. Super. 2018) (citations

and internal quotation marks omitted).

      In its Opinion filed on June 19, 2018, the suppression court set forth an

extensive analysis of the law, evaluated the totality of the circumstances


                                     -4-
J-S57043-19


establishing probable cause to effectuate a vehicle stop, and concluded that

Strawn’s claim lacks merit. See Suppression Court Opinion, 6/19/18, at 4-

17. We agree with the sound reasoning of the suppression court, as set forth

in its Opinion, and affirm on this basis with regard to Strawn’s first claim. See

id.

      In his second claim, Strawn challenges the sufficiency of the evidence

underlying the verdict, and the verdict as against the weight of the evidence.

See Brief for Appellant at 27 (unnumbered). Strawn first directs our attention

to the Criminal Information, which did not state the speed at which Strawn

was traveling. Id. Strawn argues that Officer Firestone failed to produce a

certificate of accuracy regarding his speedometer, and directs our attention to

contradictions between Officer Firestone’s testimony at the preliminary

hearing and his trial testimony. Id. at 28-29 (unnumbered). Strawn further

sets forth other, purportedly contradictory testimony, and challenges Officer

Firestone’s credibility.   Id. at 30 (unnumbered).     Strawn also directs our

attention to statutes and regulations regarding the testing of breathalyzer

devices for accuracy.      Id. at 31-33 (unnumbered).     According to Strawn,

“Officer Firestone has offered false testimony to all aspects of a pre-arrest

breath test[.]” Id. at 34 (unnumbered).

      In its Opinion filed on April 2, 2019, the trial court set forth the

appropriate standard of review and applicable law, addressed Strawn’s claim,

and concluded that it lacks merit. See Trial Court Opinion, 4/2/19, at 9-13


                                      -5-
J-S57043-19


(addressing the sufficiency and weight claims), 14-18 (addressing Strawn’s

assertions regarding the breathalyzer testing device).       We agree with the

sound reasoning of the trial court, and affirm on the basis of its Opinion with

regard to these claims. See id.

      Strawn next presents a series of claims under the general heading,

“Abuse of Discretion.” Brief for Appellant at 38 (unnumbered). As best as we

are able to discern, Strawn first challenges the trial court’s refusal to consider

certain pro se pre-trial Motions, which he filed while he was represented by

counsel. See id. at 40-41.

      Our review of the record discloses that the charges were lodged against

Strawn on September 25, 2017. The trial court appointed counsel for Strawn

on November 11, 2017. On December 7, 2017, Strawn filed pro se pre-trial

Motions for dismissal of the charges. On December 22, 2017, Strawn’s court-

appointed attorney filed counseled Omnibus Pre-Trial Motions seeking the

dismissal of the charges based upon improprieties at the preliminary hearing

and a violation of Pa.R.Crim.P. 571.      Strawn, pro se, also sought habeas

corpus and other relief.     The trial court denied Strawn’s pro se Motions,

without prejudice to pursue his right to relief through a counseled motion.

      A defendant has no right to hybrid representation. Commonwealth v.

Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also Commonwealth v. Ali, 10

A.3d 282, 293 (Pa. 2010) (characterizing as a “legal nullity” a pro se Pa.R.A.P.

1925(b) statement filed by an appellant who was represented by counsel);


                                      -6-
J-S57043-19


Commonwealth v. Colson, 490 A.2d 811, 822 (Pa. 1985) (holding that there

is no constitutional right for a represented defendant to act as co-counsel).

Because Strawn was represented by counsel at the time the trial court denied

his pro se Motions, he is not entitled to relief.

      Strawn again appears to contest the Commonwealth’s failure to provide

analysis and data regarding the accuracy of the portable breathalyzer device

used by Officer Firestone. Brief for Appellant at 44 (unnumbered). As set

forth above, this claim lacks merit, for the reasons set forth in the trial court’s

April 2, 2019, Opinion. See Trial Court Opinion, 4/2/19, at 14-18.

      Strawn next asserts that he was denied his right to counsel during his

preliminary hearing. See Brief for Appellant at 41. The Sixth Amendment

right to the assistance of counsel attaches at the initiation of formal judicial

proceedings against an individual by way of formal charge, preliminary

hearing, indictment, information, or arraignment. Commonwealth v.

Briggs, 12 A.3d 291, 324 (Pa. 2011). Once the Sixth Amendment right to

counsel attaches, “the prosecutor and police have an affirmative obligation

not to act in a manner that circumvents and thereby dilutes the protection

afforded by the right to counsel.”     Maine v. Moulton, 474 U.S. 159, 171

(1985).

      The determination whether particular action by state agents
      violates the accused’s right to the assistance of counsel must be
      made in light of this obligation. Thus, the Sixth Amendment is not
      violated whenever—by luck or happenstance—the State obtains
      incriminating statements from the accused after the right to
      counsel has attached. However, knowing exploitation by the State

                                       -7-
J-S57043-19


     of an opportunity to confront the accused without counsel being
     present is as much a breach of the State’s obligation not to
     circumvent the right to the assistance of counsel as is the
     intentional creation of such an opportunity. Accordingly, the Sixth
     Amendment is violated when the State obtains incriminating
     statements by knowingly circumventing the accused’s right to
     have counsel present in a confrontation between the accused and
     a state agent.

Id. at 176. Although a defendant is entitled to counsel at the preliminary

hearing, a defendant is not entitled to relief where no prejudice results from

counsel’s absence. See Commonwealth v. Melnyczenko, 358 A.2d 98, 99

(Pa. Super. 1976) (citing Commonwealth v. Geiger, 316 A.2d 881, 883 (Pa.

1974), and determining that an arraignment was not fatally defective

where the defendant appeared pro se and entered a plea of not guilty, where

counsel was appointed shortly after arraignment, and defendant’s ability to

present a defense suffered no prejudice).

     Here, the preliminary hearing took place on October 26, 2017. Counsel

for Strawn entered his appearance on November 11, 2017. The record reflects

that counsel represented Strawn from that date until Strawn chose to proceed

pro se.    There is nothing of record demonstrating that Strawn suffered

prejudice resulting from the lack of counsel at the preliminary hearing.

Consequently, we cannot grant him relief on this claim. See Melnyczenko,

358 A.2d at 99; Commonwealth v. Jones, 308 A.2d 598, 602-03 (Pa. 1973)

(finding that an arraignment was not fatally defective where the defendant

appeared pro se, signed a pauper’s oath, and entered a plea of not guilty




                                    -8-
J-S57043-19


where counsel was appointed shortly after arraignment and defendant’s ability

to present a defense suffered no prejudice).

       To the extent that Strawn raises additional claims that are unsupported

by citation to the record and applicable legal authorities, we deem such claims

waived. See Pa.R.A.P. 2119(a) (stating that each point in the argument must

be “followed by such discussion and citation of authorities as are deemed

pertinent”); Commonwealth v. Johnson, 985 A.2d 915, 924-25 (Pa. 2009)

(stating that claims are waived “where an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review” and holding

appellant’s single-sentence arguments constituted “the type of cursory legal

discussion which is wholly inadequate to preserve an issue for appellate

review.”).

       In the final section of his brief, entitled “Constitutional Issues,” Strawn

sets forth bald allegations of constitutional violations, without citation to

pertinent authorities or to the places in the record where these violations

purportedly occurred.4 Accordingly, these claims are waived. See Pa.R.A.P.

2119(a); Johnson, 985 A.2d at 924-25.

       Judgment of sentence affirmed.


____________________________________________


4 We note that Strawn cites 75 Pa.C.S.A. § 1547(b), and cases filed by the
Pennsylvania Commonwealth Court, which address the civil penalties for
refusing a blood alcohol test. Strawn fails to argue how these authorities are
pertinent or relevant in this criminal proceeding.

                                           -9-
J-S57043-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothono

Date: 1/13/2020




                          - 10 -
                                                                    Circulated 12/09/2019 01:42 PM
                                                   ��NTE.-,::-           ·
                                                        t:     i\,_l.J       I   ,_EJ
                                                        CLERK OF COURTS
                                                             LEBANON.PA
                                                  2u18 JUN 19 PM 2 51

        IN THE COURT OF COMMON PLEAS LEBANON COUNTY
                         PENNSYLVANIA

                           CRIMINAL DIVISION



COMMONWEALTH OF PENNSYLVANIA                   : NO. CP-38-CR-1996-2017

            vs
STEPHEN STRAWN

                            ORDER OF COURT

      AND NOW, this 19th day of June, 2018, in accordance with the

attached Opinion, the DEFENDANT'S Motion to Dismiss based upon his

challenge to Officer Firestone's traffic stop is DENIED. The DEFENDANT

is to appear at the Criminal Call of the List scheduled for July 10, 2018 at

8: 30a.m. in the designated Court Room. His trial is scheduled to commence

at 8:30 a. m. on July 23, 2018 in Court Room #3. Any trial or sentencing in

the above case is to be conducted before this jurist.


                                   BY THE COURT:



                                   BL/I�
                                   BRADFORD H. CHARLES
                                                               J.

BHC/pmd

cc:   Matthew Mellon, Esquire// District Attorney's Office-�+
      Stephen Strawn// c/o LCCF, 730 E. Walnut St., Lebanon PA 17042 � I
      Jason J. Schibinger, Esquire// PO Box 49 Lebanon PA 17042-fhrii-/eq
      Court Administration (order only) --�



                                     1
                                                                     ENTEF,ED & FILE'.J
                                                                     CLERK OF c OURTS
                                                                       LEBANON, PA
                                                                2C1B 1..1l!N 19 pr, 2 5z

      IN THE COURT OF COMMON PLEAS LEBANON COUNTY
                        PENNSYLVANIA

                               CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                           : NO. CP-38-CR-1996-2017

            vs
STEPHEN STRAWN



APPEARANCES

Matthew Mellon, Esquire                    For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE

Stephen Strawn                             pro se
Jason J. Schibinger, Esquire               Stand-by counsel for Stephen Strawn


OPINION BY CHARLES, J., June 19, 2018

      Can   a    pol ice   officer   initiate   a   traffic   stop   based    upon    an

unsubstantiated estimate of speed? The Commonwealth argues that when

a police officer observed the DEFENDANT driving past his parked cruiser

at a speed estimated to significantly exceed the posted I im it, the officer

was justified in effectuating a traffic stop.       The DEFENDANT responds by

stating that he was doing nothing other than "driving while black". We issue

this opinion to address the viability of the traffic stop that led to

DEFENDANT's arrest.




                                           1
    I.   FACTS

         The DEFENDANT is a self-represented litigant who has filed almost

weekly motions to challenge the legitimacy of the charges lodged against

him.       For a multitude of reasons, this Court has rejected all of the

    DEFENDANT's numerous arguments except one before us today. We issue

this opinion to address the DEFENDANT's challenge to the legitimacy of

the traffic stop that led to his arrest. On that issue, we conducted a Factual

Hearing on May 10, 2018. At that hearing, we learned the following facts.1

         In the early morning of August 18, 2017, Officer Scott Firestone of

the South Londonderry Township Police Department was sitting in a marked

police cruiser observing traffic proceeding on US Route 322, otherwise

known as the Horseshoe Pike.                        Shortly after two o'clock in the morning,

Officer Firestone observed a silver Ford Focus travelling at a high rate of

speed past his location. Officer Firestone pulled onto Route 322 and began

to follow the Ford Focus vehicle.

         Officer Firestone testified that when he pulled onto Horseshoe Pike,

he was located approximately one-quarter of a mile to the east of the

intersection of Route 117 and Horseshoe Pike. 2 He also testified that he

accelerated his own police cruiser to sixty (60) miles per hour and was

barely able to get closer to the Ford Focus.                              Officer Firestone therefore

engaged his lights and siren. After he did so, the Ford Focus proceeded to



I
 We prepared this Opinion without a transcript. The facts set forth herein are based upon our notes and recollection.
2
 We are familiar with this intersection. To the west, route 322 enters the village ofCampbelltown where houses and
businesses are located on both sides of the roadway. To the north, Rt. 117 enters a residential area.


                                                          2
turn right onto Route 117 at a speed far greater than was appropriate for

such a turn.        During the turn, the Focus proceeded into the oncoming lane

of traffic on Route 117 before returning to the correct lane of travel. After

Officer Firestone turned his police cruiser onto Route 117, the Ford Focus

did eventually pull to the side of the road.

      In   the      ensuing      encounter,   Officer   Firestone    learned   that   the

DEFENDANT was the driver of the Focus vehicle. Officer Firestone learned

that the DEFENDANT did not possess a valid Pennsylvania Driver's

License.       In    addition,    Officer   Firestone detected      evidence that the

DEFENDANT had been consuming alcohol.                      He therefore asked the

DEFENDANT to perform field sobriety tests. The DEFENDANT refused. He

also transported the DEFENDANT to a hospital for a blood test.                        The

DEFENDANT refused to provide a sample of his blood.

      Officer Firestone filed charges for Driving Under the Influence of

Alcohol, Driving while Operating Privileges are Suspended or Revoked-DUI

related and several other Summary Offenses.                  The DEFENDANT was

appointed counsel. He subsequently "fired" his attorney. We conducted a

Grazier Hearing on February 7, 2018.               As a result of that hearing, we

permitted the DEFENDANT to represent himself and we appointed Attorney

Elliott R. Katz to serve as stand-by counsel.                Following the Pre-Trial

Hearing that occurred on May 8, 2018, we solicited legal briefs from both

parties.   We have now received those briefs and we issue this opinion to




                                              3
address the DE FEN DAN T's challenge of the traffic stop conducted by

Officer Firestone.



II.   DISCUSSION

A.    General Precepts

      In order to stop a motorist, a police officer must have "a rticu I able and

reasonable   grounds"    or "probable       cause" to   suspect a violation    of

Pennsylvania's Motor Vehicle Code.           This precise standard to analyze

traffic stops has been in a state of flux since the decision of Pennsylvania's

Supreme Court in Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995).

In Whitmyer, Pennsylvania's Supreme Court had declared that probable

cause was necessary for a police officer to conduct a traffic stop. Following

Whitmyer, Pennsylvania's Legislature enacted a statute 75 Pa. C.S.A.

§6308, that authorized traffic stops whenever police possess "articulable

and reasonable grounds" to suspect a violation of the Vehicle Code. Since

the enactment of § 6308, Courts have employed both the "probable cause"

standard and the "reasonable ground" standard often interchangeably.

      In Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008), the Supreme

Court affirmed the constitutionality of 75 Pa. C.S.A. § 6308. However, the

Court in Chase declared that § 6308 applies only to "investigatory stops"

where there is a need for the motorist to stop so that police can secure

additional information necessary to enforce the Vehicle Code. Chase made

it clear that § 6308 "does not allow all stops to be based on the lower




                                        4
quantum - it merely allows this for investigatory stops, consistent with the

requirements of both the Federal and State constitutions." Id at page 116.

     Where a vehicle stop is effectuated due to a violation of the Motor

Vehicle Code that does not require additional investigation, it must be

supported by probable cause.     Commonwealth v. Feczko, 10 A.3d 1285

(Pa. Super. 2010). In the case of a traffic stop for speeding, Pennsylvania's

Superior Court has declared that "probable cause" is the proper standard.

Commonwealth v. Salter, 121 a. 3d 987 (Pa. Super. 2015). This is because

"When a vehicle is stopped, nothing more can be determined as to the

speed of the vehicle when it was observed while traveling on a highway."

Id at page 993.

            In determining whether probable cause exists, "there is no

requirement that an actual violation be established".    Commonwealth v.

Vincett, 806 A.2d 31 (Pa. Super. 2002). Probable cause has been defined

as existing "where the facts and circumstances within the knowledge of the

officer are based upon reasonably trustworthy information and are sufficient

to warrant a man of reasonable caution in the belief that the suspect has

committed or is committing a crime." Commonwealth v. Joseph, 34 A.3d

855, 863 (Pa. Super. 2011 ); Commonwealth v. Thompson, 985 A.2d 928,

931 (Pa. 2009). "It is the facts and circumstances within the personal

knowledge of the police officer that frames the determination of the

existence of probable cause." Commonwealth v. Galendez, 23 A.3d 1042,

1046 (Pa. Su per. 2011). Ascertaining probable cause requires an analysis




                                     5
of the totality of circumstances known to the police officer.    Galendez,

supra.

      In this case, Officer Firestone engaged his lights and siren because

he believed the DEFENDANT was driving too fast for existing conditions.

After Officer Firestone engaged his lights and siren, the DEFENDANT was

seen making an improper and dangerous right-hand turn.         The question

before this Court today is whether either of the observations by Officer

Firestone provided him with probable cause to effectuate a traffic stop.   In

deciding this issue, we will address both the speeding and the improper

rig ht-hand turn.

(a) Speeding

      The DEFENDANT claims that a traffic stop cannot be predicated

solely upon a police officer's opinion of a vehicle's speed.   In support of

this position, the DEFENDANT relies primarily upon the Pennsylvania

Supreme Court decision of Commonwealth v. Whitmyer, 668 A.2d 1113

(Pa. 1995). In Whitmyer, a Pennsylvania State Police Trooper opined that

the Defendant was traveling roughly 15 miles per hour in excess of the

posted speed lfmit. He based his opinion upon his years of experience as

a State Police Trooper and his own police cruiser's speedometer. However,

the trooper followed the Defendant for only two-tenths of a mile.       The

Supreme Court held that the trooper's traffic stop was not supported by

probable cause.     Emphasizing that a Pennsylvania statute authorizes use




                                      6
of a speedometer as a speed-timing device only when the speed is

measured for three-tenths of a mile or more, the Supreme Court stated:

                "If the trooper was unable to clock Appellee for three-
            tenths of a mile or observe the conditions that would
            warrant a citation for driving at an unsafe speed, there is
            no further evidence that could be obtained from a
            subsequent stop and investigation. Thus, we conclude
            that the fruits of the u n lawfu I      stop were         correctly
            suppressed." Id at page 1118.

     As can be imagined, Whitmyer spawned a multitude of different

challenges to traffic stops across the Commonwealth of Pennsylvania. As

noted above, Whitmyer also prompted the Pennsylvania Legislature to

enact a statute to ameliorate the practical problems for pol ice that

Whitmyer engendered.         Ultimately, more recent Appellate Court decisions

have tended to interpret Whitmyer narrowly.

      According to the Westlaw search engine, eighty-four (84) Appellate

cases have cited Whitmyer since 1995.        Not all of these cases involved a

traffic stop for speeding.     However, several did.      Without promising to be

comprehensive, we will endeavor to highlight the key cases decided since

Whitmyer where a Defendant challenged a traffic stop based upon an

officer's opinion regarding the speed of a motor vehicle:

       ( 1) Commonwealth v. Butler, 856 A.2d 131 (Pa. Super. 2004)

                  In   Butler,    Philadelphia   police    officers   observed    the

            Defendant's vehicle traveling at 50 to 60 miles per hour in a

            posted 25 mile per hour zone.        The Defendant also weaved in

            and out of traffic and even traversed onto the concrete median.




                                         7
                  Citing the fact that the Defendant was driving down a populated

                  street in a city, the Superior Court stated that police had "more

                  than sufficient probable ca use that Butler had violated the

                  Vehicle Code.            The initial stop was therefore justified."                         Id at

                  page 135.3


           (2) Commonwealth v. Fredericks, 2015 WL 7722041 (Pa. Su per.

                2015)4

                           In this case, a police trooper utilized a radar gun to

                  measure the speed of Defendant's vehicle at 82 miles per hour

                  in a 65 mile per hour zone.                    The officer decided to afford the

                  Defendant with "a break" by not citing him for speeding.

                  Because the Defendant was not charged with speeding, the

                  trooper did not verify the certificate of accuracy for his radar

                  gun. Because of this, the Defendant argued that his traffic stop

                  should be suppressed.                       The Superior Court disagreed and

                  stated:


                           "We hold Trooper Zaykowski had probable cause to stop
                           Appellant for speeding, even though the Commonwealth
                           could not produce at trial documentation showing that the
                           radar gun used was an approved, properly calibrated
                           speed-testing device. Trooper Zaykowski did not need to
                           have sufficient evidence to convict Appellant of speeding
                           when he stopped him. Rather, he needed only probable
                           cause. He met that standard here. His radar gun timed
                           Appellant's speed at 82 mph in a 65 mph zone - almost

3
  Interestingly, some of the evidence used by the police to determine probable cause occurred after the police officer
had activated her lights and sirens. Thus, post-activation driving was deemed to be relevant to the issue of probable
cause.
4
  Fredericks is a Memorandum Opinion. It is therefore not binding precedent. We cite it only as persuasive authority.


                                                          8
           20 mph over the speed limit.      True, the Commonwealth
           lacked documentation showing the radar gun's accuracy,
           because Trooper Zaykowski did not record which unit he
           used. Such documentation, however, is not necessary to
           establish probable cause.' ... Importantly, the actual
           accuracy of the radar gun is the wrong inquiry in
           determining probable cause. Rather, the proper inquiry is
           whether Trooper Zaykowski reasonably believed it was
           accurate.' The suppression inquiry is analyzed from the
           perspective of the officer, and there is no requirement that
           an actual Vehicle Code Violation be established, only that
           there be a reason ab le basis for the officer's action in
           stopping the vehicle." Commonwealth v. Vincett, 806
           A.2d 31, 33 (Pa. Super. 2002)."


(3) Commonwealth v. Heberling, 6787 A.2d 794 (Pa. Super. 1996)

           Police observed a vehicle traveling "at an extreme rate of

   speed" in a 45 mile per hour zone while he was one-tenth of a

   mile from an intersection and two- to three-tenths of a mile in

   front of the crest of a hill.   The Defendant was stopped before

   reaching either of these points. Weather conditions were clear.

   No other traffic was affected, nor were any pedestrians put at

   risk.   Under these circumstances - which are very close to the

   ones at bar - the Superior Court affirmed the traffic stop and

   stated:

           "There is no question that speeding alone does not
           constitute a violation of this statute (driving at an unsafe
           speed).      There must be proof of speed that is
            unreasonable or imprudent under the circumstances (of
           which the re must also be proof), which are the
           "conditions" and "actual and potential hazards then
           existing" of the roadway.       These circumstances may
           include not only the amount of traffic, pedestrian travel
           and weather conditions, but also the nature of the roadway
           itself (e.g., whether 4-lane interstate, or rural; flat and


                               9
                          wide, or narrow and winding over hilly terrains; smooth
                          surface or full of potholes; clear or under construction with
                          abrupt lane shifts.) It is circumstances under which one's
                          speed may be found sufficiently unreasonable and
                          imprudent to constitute a violation of§ 3361, even if the
                          driver has adhered to the posted speed limit.. ..

                          Approaching a hillcrest and approaching an intersection
                          are "conditions" specifically enumerated in the statute that
                          require a driver to proceed at a safe and appropriate
                          speed. When Appellant drove at an excessive speed
                          under these conditions, she violated § 3361." Id at pages
                          795-796; 797.


           (4) Commonwealth v. Judy, 2016 WL 6820539 (Pa. Super. 2016)5

                           In this case, a Pennsylvania State Police Trooper followed

                 the Defendant's vehicle on US Route 30 for a quarter of a mile.

                 Using a calibrated speedometer in his police cruiser, the trooper

                 indicated that the Defendant was traveling 60 miles per hour in

                 a 40 mile per hour zone.                  There were no other vehicles on the

                 roadway.        At no time did the vehicle leave its proper lane of

                 travel.     The Suppression Court held that the officer's estimate

                 of speed over one-quarter of a mile, did not rise to the level of

                 probable cause necessary to support a traffic stop. Based upon

                 Whitmyer, a panel of the Superior Court affirmed the Trial

                 Court's       decision       and      declared        the     officer's      use         of   a

                 speedometer to measure the Defendant's speed over a distance




5
 Like Fredericks, Judy was a Memorandum Opinion and is being cited a persuasive, as opposed to binding,
precedent.


                                                      10
    of less than three-tenths of a mile to be insufficient to create

    probable cause.


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

          In Little, the pol ice observed a Defendant approaching

    the crest of a hill which obscured vision of an intersection on

    the   other side   of the    crest.    The    officer described the

    Defendant's vehicle as accelerating "to its fullest capability."

    The officer estimated that the Defendant's vehicle was traveling

    40-45 miles per hour in a 35 mile per hour zone. Relying upon

    Whitmyer, the Defendant challenged the traffic stop.                The

    Superior Court rejected the Defendant's challenge and stated

   that   the   officer's   testimony     was    sufficient   to   establish

    reasonable grounds for the belief that the Defendant violated

   the Motor Vehicle Code.



(6) Commonwealth v. Minnich, 874 A.2d 1244 (Pa. Super. 2005)

          The police officer in Minnich observed the Defendant

   drive around a curve and over a hill "at a very high rate of

   speed" on an icy roadway. Emphasizing that the Defendant was

   not only speeding, but was also proceeding around a blind

   curve, the Superior Court concluded:


          "The question remains, then, whether the act of speeding,
          at the approach to an intersection, when the speed is


                                11
                             estimated by the observing officer, with no other traffic in
                             the area, when the officer observes "a lot of dust and
                             cinders" blowing up from the icy roadway as the vehicle
                             comes around a sharp curve as it crests a hill, establishes
                             a violation of the Driving-Vehicle-at-Safe-Speed statute.
                             We have carefully reviewed the record and conclude that
                             the Suppression         Court's factual findings of the
                             surrounding circumstances are sufficient for the trier of
                             fact to have concluded beyond a reasonable doubt that
                             Appellant was operating his vehicle at an unsafe speed.
                             Accordingly, we conclude that the stop of Appellant's
                             vehicle was lawful. .. " Id at page 1238.


             (7) Commonwealth                 v.    Parrish,       2016 WL4849251                 (Pa.     Super.

                  2016)6

                             In Parrish, a police officer was parked along a roadway

                    with a 35 mile per hour speed limit.                         The officer observed a

                    vehicle traveling "at a high rate of speed".                            Based upon his

                    experience, the officer estimated that the vehicle was traveling

                    about 65 miles per hour.                 In affirming the validity of the traffic

                    stop, the Superior court chastised the Defendant for conflating

                    probable cause with proof beyond a reasonable doubt.                                         The

                    Court stated:

                             "Establishing approved speed timing methods, § 3368 only
                             speaks to the evidence necessary for a conviction.
                             Appellant would have us replace the current probabilistic
                             standard required for traffic stops with one hitherto
                             confined to formal adjudicatory proceedings. Adopting
                             such a position wou Id graft an impossible burden into the
                             law: The need to have enough evidence before a
                             conviction before pulling a vehicle over .... In this case,

6
    Parrish is also a Memorandum Opinion. It is not therefore binding precedent. We cite it only as persuasive
authority.


                                                          12
          Officer Carpenter was patrolling a stretch of highway with
          which he was well familiar. Carpenter knew the posted
          speed limit and the usual pace of traffic along Hellam
          Street. After observing Appel I ant's vehicle, Carpenter's
          experience with traffic enforcement enabled his to
          estimate Appellant's speed as being nearly doubled the
          posted speed I im it."
  Based   upon this    reasoning, the Court determined that the

  officer's estimate of the Defendant's speed was sufficient to

  create probable cause.


(8) Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009)

          Perry was a case emanating from Lebanon County where

   this jurist denied a Defendant's Suppression Motion. In Perry,

   an Annville Township Police Officer observed a vehicle stopped

   at the intersection of US Route 422 and Route 934. When the

    light turned to green, the vehicle "took off at a high rate of

   speed". To investigate, the officer had to speed his cruiser to

   40 miles per hour in a 25 mile per hour zone.         The Defendant

   challenged    the   subsequent    traffic   stopped    based   upon

    Whitmyer.    The Superior Court rejected this challenge and

   stated:


          "Instantly, Appellant drove 15 miles per hour faster than
          the posted speed limit of 25 miles per hour on a road that
          was wet and slushy. Because Minnich established that
          potential danger is sufficient to satisfy the probable cause
          standard, we discern no legal error in concluding that the
          instant facts are sufficient to meet the lower standard of
          reasonable suspicion ... In conclusion, we hold that
          Minnich, which established that speeding may create
          sufficient potential for causing an accident under certain


                              13
         circumstances to warrant a finding of probable cause, also
         applies to the current standard of reasonable suspicion.
         Accordingly, the Suppression Court did not err in
         concluding Officer Robinson had reasonable suspicion to
         stop Appellant." Id at page 1012-1013.

(9)Commonwealth v. Ulman, 902 A.2d 514 (Pa. Super. 2006)

        Police officers were stopped along Route 30 in York at

    approximately 2am when they observed a Defendant traveling

    at a "high rate of speed". The officers estimated that the speed

    was approximately 60-65 miles per hour in a 35 mile per hour

    zone. The Superior Court rejected the Defendant's Suppression

    Motion, stating that the officer "was entitled to draw reasonable

    inferences from the facts in            light of his twelve years of

    experience.     Based on this experience and the facts as he

    perceived     them,   [the   officer]    reasonable   concluded   that

   violations of the Motor Vehicle Code were being committed." Id

    at page 518.

(10) Commonwealth v. Wilbert, 858 A.2d 124 7 (Pa. Super. 2004)

         In this case, a police officer witnessed the Defendant

   traveling from the opposite direction and traveling toward her

   cruiser at a speed of roughly 60 miles per hour in a 45 mile per

    hour zone. The officer also noticed a nauseating odor coming

   from the vehicle.       She therefore turned around and began

   following the vehicle. During this period of time, the Defendant

   crossed the center line and the fog line of the roadway on


                                 14
                 numerous     occasions.         Citing   Whitmyer,   the   Defend ant

                 challenged the viability of the traffic stop. The Superior Court

                 rejected the challenge.     Based upon a totality of information

                 presented, the Court held that the traffic stop was appropriate.



           As is evident from the decisional precedent outlined above, every

     case involving an officer's estimate of speed is different.       Each must be

     evaluated based upon the unique factual circumstances apparent to the

     police officer when he effectuated the traffic stop.       In this case, Officer

     Firestone was aware of the following:

       •   That it was 2 a.m. and that traffic on US Route 322 was light;

       •   That US Route 322 is one of the most heavily traveled roadways in

           Lebanon County. Even at 2 a.m., vehicles could be expected to travel

           on Route 322.

       •   That the posted speed limit at Route 322 where Officer Firestone was

           parked was 45 miles per hour;

       •   That Officer Firestone perceived that the DEFENDANT'S vehicle was

           traveling significantly in excess of the posted speed limit as it passed

           the officer's location;

       •   That the intersection       of Route 322 and       Route   117   is located

           approximately one-quarter of a mile to the west of where Officer

           Firestone was located.       The DEFENDANT's vehicle was traveling

           toward this intersection.



                                            15


\.
    •    That the town of Campbelltown is located immediately on the other

         side of the intersection of Route 322 and Route 117.                                        Th is town is

         comprised of closely-spaced residences, churches and businesses.

         The speed limit in Campbelltown is lower than the speed limit where

         the officer first observed the DEFENDANT's vehicle.7

    •    That a residentia I housing development is situated to the north of the

         intersection of Route 117 and Route 322 on Route 117. 7

    •    That       any      motorist        traveling          at    the     speed         observed          of    the

         DEFENDANT'S                vehicle        would        create        a    traffic      hazard        at    the

         intersection of Route 322 and Route 117, or traveling along either

         Route 322 or Route 117 on the other side of the intersection.

    •    When Officer Firestone pulled onto Route 322 in order to follow the

         DEFENDANT's vehicle, he had to accelerate quickly to reach 60 miles

         per hour and did not appreciably catch up to the DEFENDANT.

    •    Based         upon       his     experience,           Officer        Firestone         estimated          the

         DEFENDANT was speeding at least 15 miles per hour in excess of

         the posted speed limit.

         It is the opinion of this Court that Officer Firestone had probable

cause to effectuate a traffic stop of the DEFENDANT's vehicle. While only

one or two factors outlined above may not establish probable cause, the




7
  We do not recall specific testimony at the Suppression Hearing regarding the existence of Campbelltown and the
layout of the roadways at or near the intersection of Route 322 and Route 117. However, we know that the intersection
is located in Officer Firestone's jurisdiction and he is familiar with the area. This Court is also familiar with the area
and we have taken judicial notice of the configuration of the roadways and surrounding buildings.


                                                           16
totality of all of the above clearly establishes that Officer Firestone was

justified in stopping the DEFENDANT.



(b) I mp roper Rig ht-Hand Turn

      We accept as self-evident that Officer Firestone could conduct a

traffic stop of any motorist who performed a right-hand turn similar to the

one the DEFENDANT attempted from US Route 322 onto Route 117.

Whenever a motorist tries to accomplish a turn at an excessive rate of

speed and drifts into the oncoming lane of travel as a result, that motorist

has violated Pennsylvania's Motor Vehicle Code. Section 3331 of the Code

states that "The driver of a vehicle intending to turn right shall approach

the turn and make the turn as close as practicable to the right-hand curb or

edge of the roadway." 75 Pa.C.S.A. § 3331.          Clearly, the DEFENDANT's

turn from Route 322 onto Route 117 did not comport with this standard.

      The prob I em in this case is that Officer Firestone had already

engaged his lights and siren when he observed the DEFENDANT's improper

turn. The DEFENDANT now claims that his improper turn is immaterial to

the question of whether police cou Id effectuate a lawfu I traffic stop.      The

DEFENDANT argues that anything he did after Officer Firestone engaged

his lights and siren is irrelevant to the lawfulness of the ultimate traffic stop.

      It is true that a traffic stop officially "occurs" when a police officer

activates lights and siren.   Commonwealth v. Livingstone, 174 A.3d 609

(Pa. 2017).    However, this precept does not automatically lead to the




                                        17
conclusion that everything that occurs thereafter should be deemed

irrelevant.   To the contrary, police cannot and should not ignore the

Defendant's driving violations after lights and siren are activated.      In the

opinion of this Court, unsafe driving is unsafe, regardless of whether it

occurs before or after a police officer engages his lights and siren.

      In Commonwealth v. Scattone, 672 A.2d 345 (Pa. Super. 1996), a

police officer engaged his lights and siren to stop a vehicle based upon

information he received from a witness.          After the lights and siren were

activated, the Defendant led police on a three (3) mile chase and committed

numerous traffic violations in the process. The Defendant defended against

his violations by claiming that police did not have probable cause to

effectuate an initial stop. He attempted to characterize probable cause as

a "condition precedent to validating police pursuit and a citizen's violating

of § 3733(a) for fleeing and attempting to allude police." Id at page 346.

Pennsylvania's Superior Court rejected the Defendant's position.            The

Superior Court noted that citizens are not permitted to raise unlawfulness

of the arrest as a defense to a resisting arrest charge. In part because of

this, the Court concluded "A citizen is not permitted to avoid a via lation of

§3733(a) under the cloak of a no probable cause or articulable suspicion to

believe criminal activity is afoot by police."

      In the opinion of this Court, the DEF EN DAN T's improper right turn

onto Route 117 provided separate and independent justification for Officer

Firestone's traffic stop. The mere fact that the improper right turn occurred




                                       18
after Officer Firestone had engaged his lights and siren does not afford the

DEFENDANT with a defense to a charge of violating the Motor Vehicle

Code, nor does it erase the existence of probable cause based upon Officer

Firestone's observation of the improper turn.                               For this reason also, we

believe that Officer Firestone's traffic stop of the DEFENDANT was proper.



Ill.      CONCLUSION

         There is absolutely no evidence whatsoever that race played a role in

Officer Firestone's traffic stop of the DEFENDANT.8                                     However, Officer

Firestone did immediately perceive that the DEFENDANT'S vehicle was

traveling too fast and his perception was confirmed when he could not catch

the DEFENDANT's vehicle despite accelerating in own to 60 miles per hour.

If the DEFENDANT's speeding were not enough, Officer Firestone then

observed the DEFENDANT make a dangerous right-hand turn that would

have caused an accident had another vehicle been located on Route 117.

All of the above justified Officer Firestone's traffic stop.                                Therefore, the

events that occurred thereafter should not be suppressed.                                       An Order to

effectuate these decisions will be entered today's date.




8
  Indeed, given that the DEFENDANT's vehicle traveled past Officer Firestone's position in the middle of the night
at an area of the highway that was unlit and at a high rate of speed, we conclude that it was unlikely that Officer
Firestone even realized the race of the driver of the speeding vehicle.


                                                        19
                                                                     Circulated 12/09/2019 01:42 PM

                                                                    ENTE,1 D & Ff LE'.J
                                                                    CLERK OF COURT0
                                                                      LEBANDN,PA
                                                               2C1B �'UN 19 PP1 2 52
      IN THE COURT OF COMMON PLEAS LEBANON COUNTY
                        PENNSYLVANIA

                              CRIMINAL DIVISION

COMMONWEAL TH OF PENNSYLVANIA                         : NO. CP-38-CR-1996·2017

            vs
STEPHEN STRAWN



APPEARANCES

Matthew Mellon, Esquire                   For Commonwealth of Pennsylvania
DISTRICT ATTORNEY'S OFFICE

Stephen Strawn                            pro se
Jason J. Schibinger, Esquire              Stand-by counsel for Stephen Strawn


OPINION BY CHARLES. J., June 19, 2018

      Can   a    police   officer   initiate   a   traffic   stop   based      upon      an

unsubstantiated estimate of speed? The Commonwealth argues that when

a police officer observed the DEFENDANT driving past his parked cruiser

at a speed estimated to significantly exceed the posted limit, the officer

was justified in effectuating a traffic stop.      The DEFENDANT responds by

stating that he was doing nothing other than "driving while black". We issue

this opinion to address the viability of the traffic stop that led to

DEFENDANT's arrest.




                                           1
I.     FACTS

        The DEFENDANT is a self-represented litigant who has filed almost

weekly motions to challenge the legitimacy of the charges lodged against

him.      For a multitude of reasons, this Court has rejected all of the

DEFENDANT's numerous arguments except one before us today. We issue

this opinion to address the DEFENDANT's challenge to the legitimacy of

the traffic stop that led to his arrest. On that issue, we conducted a Factual

Hearing on May 10, 2018. At that hearing, we learned the following facts.1

         I n the ea rl y morn in g of Aug us t 1 8 , 2 0 1 7 , Officer Scott F i rest one of

the South Londonderry Township Police Department was sitting in a marked

police cruiser observing traffic proceeding on US Route 322, otherwise

known as the Horseshoe Pike.                        Shortly after two o'clock in the morning,

Officer Firestone observed a silver Ford Focus travelling at a high rate of

speed past his location. Officer Firestone pulled onto Route 322 and began

to follow the Ford Focus vehicle.

         Officer Firestone testified that when he pulled onto Horseshoe Pike,

he was Io cat e d a pp r ox i mate I y on e-q u a rte r of a m ii e to the east of the

intersection of Route 117 and Horseshoe Pike. 2 He also testified that he

accelerated his own police cruiser to sixty (60) miles per hour and was

barely able to get closer to the Ford Focus.                              Officer Firestone therefore

engaged his lights and siren. After he did so, the Ford Focus proceeded to



lWe prepared this Opinion without a transcript. The facts set forth herein are based upon our notes and recollection.
2
 We are familiar with this intersection. To the west, route 322 enters the village of Campbelltown where houses and
businesses are located on both sides of the roadway. To the north, Rt. 117 enters a residential area.


                                                          2
turn right onto Route 117 at a speed far greater than was appropriate for

such a turn.        During the turn, the Focus proceeded into the oncoming lane

of traffic on Route 117 before returning to the correct lane of travel. After

Office r Firestone tu rn e d his po Ii c e c r u is e r onto Route 11 7 , the Ford Focus

did eventually pull to the side of the road.

      In   the      ensuing      encounter,   Officer   Firestone    learned   that   the

DEFENDANT was the driver of the Focus vehicle. Officer Firestone learned

that the DEFENDANT did not possess a valid Pennsylvania Driver's

License.       In    addition,    Officer   Firestone   detected    evidence that the

DEFENDANT had been consuming alcohol.                       He therefore asked the

DEFENDANT to perform field sobriety tests. The DEFENDANT refused. He

also transported the DEFENDANT to a hospital for a blood test.                        The

DEFENDANT refused to provide a sample of his blood.

      Officer Firestone filed charges for Driving Under the Influence of

Alcohol, Driving while Operating Privileges are Suspended or Revoked-DUI

related and several other Summary Offenses.                  The DEFENDANT was

appointed counsel. He subsequently "fired" his attorney. We conducted a

Grazier Hearing on February 7, 2018.               As a result of that hearing, we

permitted the DEFENDANT to represent himself and we appointed Attorney

Elliott R. Katz to serve as stand-by counsel.                Following the Pre-Trial

Hearing that occurred on May 8, 2018, we solicited legal briefs from both

parties.   We have now received those briefs and we issue this opinion to




                                              3
address the DEFENDANT's challenge of the traffic stop conducted by

Officer Firestone.



II.   DISCUSSION

A.    General Precepts

      In order to stop a motorist, a police officer must have "articulable and

reasonable   grounds"   or "probable       cause" to   suspect   a   violation   of

Pennsylvania s Motor Vehicle Code.          This precise standard to analyze
             1




traffic stops has been in a state of flux since the decision of Pennsylvania's

Supreme Court in Commonwealth v. Whitmyer, 668 A.2d 1113 (Pa. 1995).

In Whitmyer, Pennsylvania s Supreme Court had declared that probable
                             1




cause was necessary for a police officer to conduct a traffic stop. Following

Whitmyer, Pennsylvania's Legislature enacted a statute 75 Pa. C.S.A.

§6308, that authorized traffic stops whenever police possess "articulable

and reasonable qrounds" to suspect a violation of the Vehicle Code. Since

the enactment of§ 6308, Courts have employed both the "probable cause"

standard and the "reasonable ground" standard often interchangeably.

      In Commonwealth v. Chase, 960 A.2d 108 (Pa. 2008), the Supreme

Court affirmed the constitutionality of 75 Pa. C.S.A. § 6308. However, the

Court in Chase declared that § 6308 applies only to "investigatory stops"

where there is a need for the motorist to stop so that police can secure

additional information necessary to enforce the Vehicle Code. Chase made

it clear that § 6308 "does not allow all stops to be based on the lower




                                       4
quantum - it merely allows this for investigatory stops, consistent with the

requirements of both the Federal and State constitutions." Id at page 116.

     Where a vehicle stop is effectuated due to a violation of the Motor

Vehicle Code that does not require additional investigation, it must be

supported by probable cause.     Commonwealth v. Feczko, 10 A.3d 1285

(Pa. Super. 2010). In the case of a traffic stop for speeding, Pennsylvania's

Superior Court has declared that "probable cause" is the proper standard.

Commonwealth v. Salter, 121 a.3d 987 (Pa. Super. 2015). This is because

"When a vehicle is stopped, nothing more can be determined as to the

speed of the vehicle when it was observed while traveling on a highway."

Id at page 993.

            In determining whether probable cause exists, "there is no

requirement that an actual violation be established".    Commonwealth v.

Vincett, 806 A.2d 31 (Pa. Super. 2002).    Probable cause has been defined

as existing "where the facts and circumstances within the knowledge of the

officer are based upon reasonably trustworthy information and are sufficient

to warrant a man of reasonable caution in the belief that the suspect has

committed or is committing a crime." Commonwealth v. Joseph, 34 A.3d

855, 863 (Pa. Super. 2011 ); Commonwealth v. Thompson, 985 A.2d 928,

931 (Pa. 2009). "It is the facts and circumstances within the personal

knowledge of the police officer that frames the determination of the

existence of probable cause." Commonwealth v. Galendez, 23 A.3d 1042,

1046 (Pa. Super. 2011 ). Ascertaining probable cause requires an analysis




                                      5
of the totality of circumstances known to the police officer.     Galendez,

supra.

      In this case, Officer Firestone engaged his lights and siren because

he believed the DEFENDANT was driving too fast for existing conditions.

After Officer Firestone engaged his lights and siren, the DEFENDANT was

seen making an improper and dangerous right-hand turn.         The question

before this Court today is whether either of the observations by Officer

Firestone provided him with probable cause to effectuate a traffic stop.    In

deciding this issue, we will address both the speeding and the improper

right-hand turn.

(a) Speeding

      The DEFENDANT claims that a traffic stop cannot be predicated

solely upon a police officer's opinion of a vehicle's speed.    In support of

this position, the DEFENDANT relies primarily upon the Pennsylvania

Supreme Court decision of Commonwealth v. Whitmyer, 668 A.2d 1113

(Pa. 1995). In Whitmyer,   a Pennsylvania State Police Trooper opined that
the Defendant was traveling roughly 15 miles per hour in excess of the

posted speed limit. He based his opinion upon his years of experience as

a State Police Trooper and his own police cruiser's speedometer. However,

the trooper followed the Defendant for only two-tenths of a mile.          The

Supreme Court held that the trooper's traffic stop was not supported by

probable cause.    Emphasizing that a Pennsylvania statute authorizes use




                                     6
of a speedometer as a speed-timing device only when the speed is

measured for three-tenths of a mile or more, the Supreme Court stated:

                "If the trooper was unable to clock Appellee for three-
            tenths of a mile or observe the conditions that would
            warrant a citation for driving at an unsafe speed, there is
            no further evidence that could be obtained from a
            subsequent stop and investigation. Thus, we conclude
            that the fruits of the unlawful stop were correctly
            suppressed." Id at page 1118.

     As can be imagined, Whitmyer spawned a multitude of different

challenges to traffic stops across the Commonwealth of Pennsylvania. As

noted above, Whitmyer also prompted the Pennsylvania Legislature to

enact a statute to ameliorate the            practical   problems for police that

Whitmyer engendered.         Ultimately, more recent Appellate Court decisions

have tended to interpret Whitmyer narrowly.

      According to the Westlaw search engine, eighty-four (84) Appellate

cases have cited Whitmyer since 1995.           Not all of these cases involved a

traffic stop for speeding.     However, several did.        Without promising to be

comprehensive, we will endeavor to highlight the key cases decided since

Whitmyer where a Defendant challenged a traffic stop based upon an

officer's opinion regarding the speed of a motor vehicle:

       (1) Commonwealth v. Butler, 856 A.2d 131 (Pa. Super. 2004)

                  In   Butler,    Philadelphia     police    officers   observed   the

            Defendant's vehicle traveling at 50 to 60 miles per hour in a

            posted 25 mile per hour zone.          The Defendant also weaved in

            and out of traffic and even traversed onto the concrete median.




                                         7
                 Citing the fact that the Defendant was driving down a populated

                 street in a city, the Superior Court stated that police had "more

                 than sufficient probable cause that Butler had violated the

                 Vehicle Code.            The initial stop was therefore justified."                         Id at

                 page 135.3


           (2) Commonwealth v. Fredericks, 2015 WL 7722041 (Pa. Super.

               2015)4

                           In this case, a police trooper utilized a radar gun to

                  measure the speed of Defendant's vehicle at 82 miles per hour

                  in a 65 mile per hour zone.                    The officer decided to afford the

                  Defendant with "a break" by not citing him for speeding.

                  Because the Defendant was not charged with speeding, the

                  trooper did not verify the certificate of accuracy for his radar

                  gun. Because of this, the Defendant argued that his traffic stop

                  should be suppressed.                       The Superior Court disagreed and

                  stated:

                           "We hold Trooper Zaykowski had probable cause to stop
                           Appellant for speeding, even though the Commonwealth
                           could not produce at trial documentation showing that the
                           radar gun used was an approved, properly calibrated
                           speed-testing device. Trooper Zaykowski did not need to
                           have sufficient evidence to convict Appellant of speeding
                           when he stopped him. Rather, he needed only probable
                           cause. He met that standard here. His radar gun timed
                           Appellant's speed at 82 mph in a 65 mph zone - almost

3
  Interestingly, some of the evidence used by the police to determine probable cause occurred after the police officer
had activated her lights and sirens. Thus, post-activation driving was deemed to be relevant to the issue of probable
cause.
4
  Fredericks is a Memorandum Opinion. It i therefore not binding precedent. We cite it only as persuasive authority.


                                                          8
            20 mph over the speed limit.      True, the Commonwealth
            lacked documentation showing the radar gun's accuracy,
            because Trooper Zaykowski did not record which unit he
            used. Such documentation, however, is not necessary to
            establish probable cause.' ... Importantly, the actual
            accuracy of the radar gun is the wrong inquiry in
            determining probable cause. Rather, the proper inquiry is
            whether Trooper Zaykowski reasonably believed it was
            accurate.' The suppression inquiry is analyzed from the
            perspective of the officer, and there is no requirement that
            an actual Vehicle Code Violation be established, only that
            there be a reasonable basis for the officer's action in
            stopping the vehicle." Commonwealth v. Vincett, 806
            A.2d 31, 33 (Pa. Super. 2002)."


(3) Commonwealth v. Heberling, 6787 A.2d 794 (Pa. Super. 1996)

            Police observed a vehicle traveling "at an extreme rate of

   speed" in a 45 mile per hour zone while he was one-tenth of a

    mile from an intersection and two- to three-tenths of a mile in

   front of the crest of a hill.    The Defendant was stopped before

    reaching either of these points. Weather conditions were clear.

    No other traffic was affected, nor were any pedestrians put at

    risk.   Under these circumstances - which are very close to the

    ones at bar - the Superior Court affirmed the traffic stop and

    stated:

            "There is no question that speeding alone does not
            constitute a violation of this statute (driving at an unsafe
            speed).      There must be proof of speed that is
            unreasonable or imprudent under the circumstances (of
            which the re must also be proof), which are the
            "conditions" and "actual and potential hazards then
            existing" of the roadway.       These circumstances may
            include not only the amount of traffic, pedestrian travel
            and weather conditions, but also the nature of the roadway
            itself (e.g., whether 4-lane interstate, or rural; flat and


                                9
                         wide, or narrow and winding over hilly terrains; smooth
                         surface or full of potholes; clear or under construction with
                         abrupt lane shifts.) It is circumstances under which ones
                         speed may be found sufficiently unreasonable and
                         imprudent to constitute a violation of § 3361, even if the
                         driver has adhered to the posted speed limit.. ..

                         Approaching a hillcrest and approaching an intersection
                         are "conditions" specifically enumerated in the statute that
                         require a driver to proceed at a safe and appropriate
                         speed. When Appellant drove at an excessive speed
                         under these conditions, she violated § 3361." Id at pages
                         795-796; 797.


          (4) Commonwealth v. Judy, 2016 WL 6820539 (Pa. Super. 2016)5

                         In this case, a Pennsylvania State Police Trooper followed

                 the Defendant's vehicle on US Route 30 for a quarter of a mile.

                 Using a calibrated speedometer in his police cruiser, the trooper

                 indicated that the Defendant was traveling 60 miles per hour in

                 a 40 mile per hour zone.               There were no other vehicles on the

                 roadway.        At no time did the vehicle leave its proper lane of

                 travel.    The Suppression Court held that the officer's estimate

                 of speed over one-quarter of a mile, did not rise to the level of

                 probable cause necessary to support a traffic stop. Based upon

                 Whitmyer, a panel of the Superior Court affirmed the Trial

                 Court's       decision       and      declared        the     officer's      use         of   a

                 speedometer to measure the Defendant's speed over a distance




5
 Like Fredericks, Judy was a Memorandum Opinion and is being cited a persuasive, as opposed to binding,
precedent.


                                                      10
   of less than three-tenths of a mile to be insufficient to create

    probable cause.


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

           In Little, the police observed a Defendant approaching

    the crest of a hill which obscured vision of an intersection on

    the    other side    of the    crest.    The    officer     described   the

    Defendant's vehicle as accelerating "to its fullest capability."

    The officer estimated that the Defendant's vehicle was traveling

    40-45 miles per hour in a 35 mile per hour zone.             Relying upon

    Whitmyer, the Defendant challenged the traffic stop.                    The

    Superior Court rejected the Defendant's challenge and stated

    that    the   officer's   testimony     was    sufficient    to   establish

    reasonable grounds for the belief that the Defendant violated

    the Motor Vehicle Code.



(6) Commonwealth v. Minnich, 874 A.2d 1244 (Pa. Super. 2005)

           The police officer in Minnich observed the Defendant

    drive around a curve and over a hill "at a very high rate of

    speed" on an icy roadway. Emphasizing that the Defendant was

    not only speeding, but was also proceeding around a blind

    curve, the Superior Court concluded:


            "The question remains, then, whether the act of speeding,
            at the approach to an intersection, when the speed is


                                  11
                         estimated by the observing officer, with no other traffic in
                         the area, when the officer observes "a lot of dust and
                         cinders" blowing up from the icy roadway as the vehicle
                         comes around a sharp curve as it crests a hill, establishes
                         a violation of the Driving-Vehicle-at-Safe-Speed statute.
                         We have carefully reviewed the record and conclude that
                         the   Suppression       Court's factual findings of the
                         surrounding circumstances a re sufficient for the trier of
                         fact to have concluded beyond a reasonable doubt that
                         Appellant was operating his vehicle at an unsafe speed.
                         Accordingly, we conclude that the stop of Appellant's
                         vehicle was lawful. .. " Id at page 1238.


          (7) Commonwealth                 v.   Parrish,        2016      WL4849251            (Pa.    Super.

               2016)6

                          In Parrish, a police officer was parked along a roadway

                 with a 35 mile per hour speed limit.                         The officer observed a

                 vehicle traveling "at a high rate of speed                              Based upon his
                                                                                   11•




                 experience, the officer estimated that the vehicle was traveling

                 about 65 miles per hour.                 In affirming the validity of the traffic

                 stop, the Superior court chastised the Defendant for conflating

                 probable cause with proof beyond a reasonable doubt.                                         The

                 Court stated:


                          "Establishing approved speed timing methods, § 3368 only
                          speaks to the evidence necessary for a conviction.
                          Appellant would have us replace the current probabilistic
                          standard required for traffic stops with one hitherto
                          confined to formal adjudicatory proceedings. Adopting
                          such a position would graft an impossible burden into the
                          law: The need to have enough evidence before a
                          conviction before pulling a vehicle over .... In this case,

6
 Parrish is also a Memorandum Opinion. It is not therefore binding precedent. We cite it only as persuasive
authority.


                                                        12
          Officer Carpenter was patrolling a stretch of highway with
          which he was well familiar. Carpenter knew the posted
          speed limit and the usual pace of traffic along Hellam
          Street. After observing Appellant's vehicle, Carpenter's
          experience with traffic enforcement enabled his to
          estimate Appellant's speed as being nearly doubled the
          posted speed limit."
  Based   upon this     reasoning,   the   Court determined that the

  officer's estimate of the Defendant's speed was sufficient to

  create probable cause.


(8) Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009)


          Perry was a case emanating from Lebanon County where

   this jurist denied a Defendant's Suppression Motion.         In Perry,

    an Annville Township Police Officer observed a vehicle stopped

    at the intersection of US Route 422 and Route 934. When the

    light turned to green, the vehicle "took off at a high rate of

    speed".   To investigate, the officer had to speed his cruiser to

    40 miles per hour in a 25 mile per hour zone.          The Defendant

    challenged    the   subsequent     traffic   stopped    based   upon

    Whitmyer.     The Superior Court rejected this challenge and

    stated:


          "Instantly, Appellant drove 15 miles per hour faster than
          the posted speed limit of 25 miles per hour on a road that
          was wet and slushy. Because Minnich established that
          potential danger is sufficient to satisfy the probable cause
          standard, we discern no legal error in concluding that the
          instant facts are sufficient to meet the lower standard of
          reasonable suspicion ... In conclusion, we hold that
          Minnich, which established that speeding may create
          sufficient potential for causing an accident under certain


                               13
         circumstances to warrant a finding of probable cause, also
         applies to the current standard of reasonable suspicion.
         Accordingly, the Suppression Court did not err in
         concluding Officer Robinson had reasonable suspicion to
         stop Appellant." Id at page 1012-1013.


(9)Commonwealth v. Ulman, 902 A.2d 514 (Pa. Super. 2006)

        Police officers were stopped along Route 30 in York at

   approximately 2am when they observed a Defendant traveling

   at a "high rate of speed". The officers estimated that the speed

   was approximately 60-65 miles per hour in a 35 mile per hour

   zone. The Superior Court rejected the Defendanfs Suppression

    Motion, stating that the officer "was entitled to draw reasonable

    inferences from the facts          in    light of his twelve years   of

   experience.     Based on this experience and the facts as he

    perceived    them,     [the   officer]    reasonable   concluded   that

   violations of the Motor Vehicle Code were being committed." Id

   at page 518.


(10) Commonwealth        v, Wilbert, 858 A.2d 124 7 (Pa. Super. 2004)
          In this case, a police officer witnessed the Defendant

   traveling from the opposite direction and traveling toward her

   cruiser at a speed of roughly 60 miles per hour in a 45 mile per

    hour zone.    The officer also noticed a nauseating odor coming

   from the vehicle.        She therefore turned around and began

   following the vehicle. During this period of time, the Defendant

    crossed the center line and the fog line of the roadway on


                                  14
             numerous     occasions.     Citing   Whitmyer,    the   Defendant

             challenged the viability of the traffic stop. The Superior Court

             rejected the challenge.    Based upon a totality of information

             presented, the Court held that the traffic stop was appropriate.



       As is evident from the decisional precedent outlined above, every

case involving an officer's estimate of speed is different.     Each must be

evaluated based upon the unique factual circumstances apparent to the

police officer when he effectuated the traffic stop.     In this case, Officer

Firestone was aware of the following:

   •   That it was 2 a.m. and that traffic on US Route 322 was light;

   •   That US Route 322 is one of the most heavily traveled roadways in

       Lebanon County. Even at 2 a.rn., vehicles could be expected to travel

       on Route 322.

   •   That the posted speed limit at Route 322 where Officer Firestone was

       parked was 45 miles per hour;

   •   That Officer Firestone perceived that the DEFENDANT'S vehicle was

       traveling significantly in excess of the posted speed limit as it passed

       the officer's location;

   •   That the intersection       of Route 322 and    Route   117   is   located

       approximately one-quarter of a mile to the west of where Officer

       Firestone was located.       The DEFENDANT's vehicle was traveling

       toward this intersection.



                                        15
    •    That the town of Campbelltown is located immediately on the other

         side of the intersection of Route 322 and Route 117.                                        This town is

         comprised of closely-spaced residences, churches and businesses.

         The speed limit in Campbelltown is lower than the speed limit where

         the officer first observed the DEFENDANT's vehicle.7

    •    That a residential housing development is situated to the north of the

         intersection of Route 117 and Route 322 on Route 117. 7

    •    That       any      motorist        traveling          at   the      speed        observed           of    the

         DEFENDANT's                vehicle        would        create        a    traffic      hazard        at    the

         intersection of Route 322 and Route 117, or traveling along either

         Route 322 or Route 117 on the other side of the intersection.

    •    When Officer Firestone pulled onto Route 322 in order to follow the

         DEFENDANT'S vehicle, he had to accelerate quickly to reach 60 miles

         per hour and did not appreciably catch up to the DEFENDANT.

    •    Based         upon       his     experience,           Officer        Firestone         estimated          the

         DEFENDANT was speeding at least 15 miles per hour in excess of

         the posted speed limit.

         It is the opinion of this Court that Officer Firestone had probable

cause to effectuate a traffic stop of the DEFENDANT's vehicle. While only

one or two factors outlined above may not establish probable cause, the




7
  We do not recall specific testimony at the Suppression Hearing regarding the existence of Campbelltown and the
layout of the roadways at or near the intersection of Route 322 and Route 117. However, we know that the intersection
is located in Officer Firestone s jurisdiction and he is familiar with the area. This Court is also familiar with the area
and we have taken judicial notice of the configuration of the roadways and surrounding buildings.


                                                           16
totality of all of the above clearly establishes that Officer Firestone was

justified in stopping the DEFENDANT.



(b) Improper Right-Hand Turn

      We accept as self-evident that Officer Firestone could conduct a

traffic stop of any motorist who performed a right-hand turn similar to the

one the DEFENDANT attempted from US Route 322 onto Route 117.

Whenever a motorist tries to accomplish a turn at an excessive rate of

speed and drifts into the oncoming lane of travel as a result, that motorist

has violated Pennsylvania's Motor Vehicle Code. Section 3331 of the Code

states that "The driver of a vehicle intending to turn right shall approach

the turn and make the turn as close as practicable to the right-hand curb or

edge of the roadway." 75 Pa.C.S.A. § 3331.          Clearly, the DEFENDANT's

turn from Route 322 onto Route 117 did not comport with this standard.

      The problem in this case is that Officer Firestone had already

engaged his lights and siren when he observed the DEFENDANT's improper

turn. The DEFENDANT now claims that his improper turn is immaterial to

the question of whether police could effectuate a lawful traffic stop.        The

DEFENDANT argues that anything he did after Officer Firestone engaged

his lights and siren is irrelevant to the lawfulness of the ultimate traffic stop.

      It is true that a traffic stop officially "occurs" when a police officer

activates lights and siren.   Commonwealth v. Livingstone, 174 A.3d 609

(Pa. 2017).    However, this precept does not automatically lead to the




                                        17
conclusion that everything that occurs thereafter should            be deemed

irrelevant.   To the contrary, police cannot and should not ignore the

Defendant's driving violations after lights and siren are activated.      In the

opinion of this Court, unsafe driving is unsafe, regardless of whether it

occurs before or after a police officer engages his lights and siren.

      In Commonwealth v. Scattone, 672 A.2d 345 (Pa. Super. 1996), a

police officer engaged his lights and siren to stop a vehicle based upon

information he received from a witness.          After the lights and siren were

activated, the Defendant led police on a three (3) mile chase and committed

numerous traffic violations in the process. The Defendant defended against

his violations by claiming that police did not have probable cause to

effectuate an initial stop. He attempted to characterize probable cause as

a "condition precedent to validating police pursuit and a citizen's violating

of§ 3733(a) for fleeing and attempting to allude police." Id at page 346.

Pennsylvania's Superior Court rejected the Defendant's position.            The

Superior Court noted that citizens are not permitted to raise unlawfulness

of the arrest as a defense to a resisting arrest charge.      In part because of

this, the Court concluded "A citizen is not permitted to avoid a violation of

§3733(a) under the cloak of a no probable cause or articulable suspicion to

believe criminal activity is afoot by police."

      In the opinion of this Court, the DEFENDANT's improper right turn

onto Route 117 provided separate and independent justification for Officer

Firestone's traffic stop. The mere fact that the improper right turn occurred




                                       18
after Officer Firestone had engaged his lights and siren does not afford the

DEFENDANT with a defense to a charge of violating the Motor Vehicle

Code, nor does it erase the existence of probable cause based upon Officer

Firestone's observation of the improper turn.                              For this reason also, we

believe that Officer Firestone's traffic stop of the DEFENDANT was proper.



Ill.     CONCLUSION

        There is absolutely no evidence whatsoever that race played a role in

Officer Firestone's traffic stop of the DEFENDANT. 8                                    However, Officer

Firestone did immediately perceive that the DEFENDANT's vehicle was

traveling too fast and his perception was confirmed when he could not catch

the DEFENDANT's vehicle despite accelerating in own to 60 miles per hour.

If the DEFENDANT's speeding were not enough, Officer Firestone then

observed the DEFENDANT make a dangerous right-hand turn that would

have caused an accident had another vehicle been located on Route 117.

All of the above justified Officer Firestone's traffic stop.                                Therefore, the

events that occurred thereafter should not be suppressed.                                       An Order to

effectuate these decisions will be entered today's date.




8
  Indeed, given that the DEFENDANT's vehicle traveled past Officer Firestone's position in the middle of the night
at an area of the highway that was unlit and at a high rate of speed, we conclude that it was unlikely that Officer
Firestone even realized the race of the driver of the speeding vehicle.


                                                        19
