J-S54045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSEPH LAWRENCE THOMAS

                            Appellant                No. 654 MDA 2014


         Appeal from the Judgment of Sentence entered April 14, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No: CP-67-CR-0006200-2013


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.                       FILED NOVEMBER 10, 2014

       Appellant, Joseph Lawrence Thomas, appeals from the judgment of

sentence the Court of Common Pleas of York County entered on April 14,

2014.1    Appellant argues the trial court erred in not granting his motion to

suppress the evidence seized following an illegal stop. Specifically, Appellant


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1
  Appellant purports to appeal from the January 10, 2014 order denying his
pre-trial motion to suppress/dismiss—the nature of the underlying motion
changes throughout the brief. It would seem that Appellant deems a motion
to suppress and a motion to dismiss to be the same. Elsewhere Appellant
purports to appeal from the “judgment of sentence . . . entered January
10, 2014, and made final when Appellant was sentenced on April 14, 2014.”
Appellant’s Brief, first page (unnumerated). An appeal does not lie from the
denial of a pre-trial motion or from the conviction, but from the judgment of
sentence. See, e.g., Commonwealth v. Pratt, 930 A.2d 561, 562 n.1 (Pa.
Super. 2007). Additionally, there is no indication Appellant filed a post-
sentence motion, which would have made the judgment final. See, e.g.,
Pa.R.A.P. 301(a)(2). We have corrected the caption accordingly.
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alleges the police did not have reasonable suspicion to stop him to

investigate about some criminal activity in which he was allegedly involved.

We disagree. Accordingly, we affirm.

       The trial court adequately summarized the factual background of this

case as follows:

       On March 2, 2013, at approximately 2:00 a.m., Trooper
       Newcomer was traveling northbound on State Route 74 where it
       intersects I-83. He testified that he observed a white Nissan
       sedan attempting to pull out of the Citizen’s [sic] Bank parking
       lot. He stated that upon seeing the marked unit, the Nissan
       backed up into the parking lot of the bank and utilized a nearby
       business parking lot to access State Route 74.            Trooper
       Newcomer testified that this appeared suspicious because he
       was aware of multiple bank incidents where ATMs were being
       broken into throughout the state. He subsequently decided to
       follow the vehicle.    Upon following the vehicle, the trooper
       noticed that the validating sticker on the registration plate was
       not in the correct indentation on the registration plate.
       Therefore, he initiated a traffic stop. Upon making contact with
       Appellant, the trooper detected an odor of alcoholic beverage
       emanating from his breath and observed his eyes to be glassy
       and bloodshot.       Appellant exited the vehicle to perform
       standardized field sobriety tests. Appellant also admitted to
       consuming a shot of Hennessy forty-five minutes prior to these
       events and to smoking marijuana.

       Upon completion of the field sobriety testing, Appellant showed
       clues of impairment and was placed under arrest. Appellant was
       transported to York Hospital for a chemical blood test.

Trial Court Opinion, 5/9/14, at 2-3 (citations to record omitted).2


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2
  We note Appellant failed to append a copy of the Rule 1925 trial court
opinion or the order denying motion to suppress to his brief, despite the
clear language of Pa.R.A.P. 2111(b).



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        On appeal, Appellant argues the police officer did not have reasonable

suspicion to stop him to investigate whether he was engaged in some

criminal activity.    See Appellant’s Brief at 8-9.    This argument is without

merit.

        Appellant fails to appreciate the facts of the case and the legal

consequences resulting from them. The alleged basis for the officer to stop

the vehicle was a violation of the Vehicle Code, not the investigation of

criminal activity. N.T. Motion to Dismiss, 1/10/14, at 6-7. See also Trial

Court Opinion, 5/9/14, at 2; N.T. Trial, 2/25/14, at 11-12, 14, 15.           A

vehicular violation provides a valid ground for stopping a vehicle.         The

quantum of cause to stop a vehicle depends on the violation itself, namely

whether it is an investigatable violation or not.      See Commonwealth v.

Chase, 960 A.2d 108, 115-16 (Pa. 2008). If the violation speaks for itself,

i.e., there is no need for further investigation, then the quantum of cause

needed is probable cause.            If further investigation is necessary, then

reasonable suspicion suffices. Id.

        Appellant does not argue he did not violate the Vehicle Code, nor did

he challenge in any fashion what the trial court eloquently called a “crap

charge.”3     Additionally, Appellant did not address whether the underlying

vehicular violation required reasonable suspicion or probable cause to

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3
    N.T. Trial, 2/25/14, at 15.




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warrant a stop. Finally, Appellant did not challenge the trial court’s finding

that the vehicular violation gave the officer probable cause to stop.

      Appellant focuses his challenge on what he perceives to be the actual

reason for the stop, namely to investigate Appellant’s suspected criminal

activity. Specifically:

      Though Trooper Newcomer cited Appellant with an equipment
      code violation for failure to place his registration sticker in the
      proper indentation on the license plate[, ] this does not change
      the nature of the stop any more than the fact Trooper Newcomer
      charged Appellant with [d]riving [u]nder the [i]nfluence.
      Trooper Newcomer followed and stopped Appellant for the
      express purpose of investigating the possibility that he was
      engaged in criminal activity at or around the ATM machine in the
      bank parking lot.

Appellant’s Brief at 10.

      Appellant ignores well-settled principles of law that directly contradict

this argument. Even if the actual motive was the investigation of suspected

criminal activity, this motive is irrelevant for purposes of determining the

legality of the seizure. “[T]he United States Supreme Court made clear that

case law ‘foreclose[s] any argument that the constitutional reasonableness

of traffic stops depends on the actual motivations of the individual officers

involved.’ In other words, if police can articulate a reasonable suspicion of a

Vehicle Code violation, a constitutional inquiry into the officer’s motive for

stopping the vehicle is unnecessary.”      Chase, 960 A.2d at 120 (citing

Whren v. United States, 517 U.S. 806, 813 (1996)).




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       In sum, Appellant’s argument is flawed on multiple levels.          First, a

violation of the Vehicle Code provides enforcement officers with a valid

ground to conduct a vehicular stop.              The only question pertains to the

quantum of cause to conduct the stop, i.e., reasonable suspicion or probable

cause. By failing to challenge or address the underlying vehicular violation,

or the trial court’s finding of probable cause to stop the vehicle for a

vehicular violation, Appellant de facto admitted the officer had probable

cause to stop the vehicle.4 A challenge to the actual motive for stopping the

vehicle, as opposed to the alleged one, is pointless once the stopping officer

showed and proved (here, not even challenged) he had a legitimate reason

(i.e., vehicular violation) to stop him. Based on what Appellant challenges,

and most importantly what he does not challenge, we are constrained to

conclude the officer had probable cause to warrant a stop of the vehicle.5

       In light of the foregoing, we affirm the judgment of sentence.
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4
 Our conclusion is based on Appellant’s (or lack thereof) argument. We are
not holding the trial court properly concluded the officer needed probable
cause to stop the vehicle.
5
  In his prayer to this Court, Appellant asks us to reverse the decision of the
trial court denying his motion to dismiss criminal information. Appellant’s
Brief at 11. Given Appellant challenged, in essence, the sufficiency of the
evidence offered by the Commonwealth in support of the stop, it is clear that
a motion to dismiss is an improper method to test the sufficiency of the
Commonwealth’s case. See Commonwealth v. Marti, 779 A.2d 1177,
1179 n.1 (Pa. Super. 2001) (“We note that a motion to dismiss is not the
proper means by which to test the sufficiency of the Commonwealth’s
evidence pre-trial. See Pa.R.Crim.P. 306 (now 578), Comment[.]”).




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     Judgment of sentence affirmed.

     Judge Lazarus joins the memorandum.

     Judge Mundy concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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