J-S66037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellant              :
                                         :
           v.                            :
                                         :
FRANCESCO GAMBINO,                       :
                                         :
                  Appellee               :           No. 698 MDA 2014

               Appeal from the Order entered on March 27, 2014
              in the Court of Common Pleas of Lancaster County,
                Criminal Division, No. CP-36-CR-0005044-2012

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED NOVEMBER 21, 2014

     The Commonwealth of Pennsylvania appeals from the Order granting

Francesco Gambino’s (“Gambino”) Motion to Suppress.1       We reverse and

remand for further proceedings.

     In the early morning hours of July 22, 2012, at approximately 3:00

a.m., Officer Andrew Dobish (“Officer Dobish”) of the Manheim Police

Department was parked near the intersection of Lititz Pike and Keller Avenue

in Lancaster, Pennsylvania.    Officer Dobish observed a dark convertible

vehicle, operated by Gambino, approach the intersection and then slow and

stop appropriately for a red light. N.T., 3/27/14, at 36. Gambino’s vehicle

1
  The Commonwealth has certified that the ruling substantially handicaps its
prosecution. See Commonwealth v. Johnson, 86 A.3d 182, 185 (Pa.
2014) (stating that in criminal cases, the Commonwealth, pursuant to
Pa.R.A.P. 311(d), may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies that the order will
terminate or substantially handicap its prosecution of the case).
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was in the designated left turn lane and, other than Officer Dobish’s police

car, no other vehicles were in the intersection or in the area.      Id. at 37.

When the light turned green, Gambino’s vehicle turned left from Keller

Avenue onto Lititz Pike in an appropriate fashion, and then accelerated

quickly on Lititz Pike without loss of control or squealing of tires. Id. at 38.

Officer Dobish testified that Gambino had failed to use his left turn signal,

but conceded that there were no other vehicles for Gambino to signal to, and

that it is not uncommon for people to make that left turn and fail to use their

turn signals.   Id.   Additionally, Officer Dobish testified that he observes

drivers failing to signal when making a left turn at that intersection almost

every day, and that he does not pull over everybody who fails to signal. Id.

at 38-39.

      Nevertheless,   Officer   Dobish   followed   Gambino’s   vehicle   as   it

proceeded down Lititz Pike, whereupon it moved from the right lane to a

newly created right lane without signaling, and thereafter made a right turn

at the intersection of Oregon Pike without any unusual driving. Id. at 12,

41-42. Officer Dobish noticed no unusual driving as Gambino proceeded on

Oregon Pike and then slowed and stopped at a red light at the intersection

with Butler Avenue.     Id. at 43.   After the light turned green, Gambino

continued on Oregon Pike before turning right onto State Route 30. Id. at

45-46.   Officer Dobish testified that he was “probably” going 95 miles per

hour to keep up with Gambino’s vehicle on Oregon Pike before turning right



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onto Route 30. Id. at 46. While following Gambino’s vehicle on Route 30,

Officer Dobish used a VASCAR Plus speed tacking device to clock Gambino’s

speed at 78.4 miles per hour.        Id. at 19-21.     Thereafter, in a location

slightly outside of his primary jurisdiction, Officer Dobish stopped Gambino’s

vehicle. Id. at 22.

        As he approached Gambino’s vehicle, Officer Dobish observed that

Gambino had watery and bloodshot eyes, and detected an odor of alcohol

coming from Gambino.       Id. at 24.      Officer Dobish testified that Gambino

admitted that he had a couple of drinks earlier in the evening. Id. at 25.

Officer Dobish administered a field sobriety test, which Gambino failed. Id.

at 26-29. Thereafter, Officer Dobish arrested Gambino, and he was charged

with driving under the influence (“DUI”)2 and speeding.3 Id at 29.

        Gambino filed a Motion to Suppress, contending that the vehicle stop

was made without probable cause or a reasonable suspicion that Gambino

was either engaged in criminal conduct or had violated the Vehicle Code.

Motion to Suppress, 2/28/13, at ¶ 3. Following a suppression hearing, the

suppression court granted Gambino’s Motion to Suppress, stating as follows:

              Well it is my assessment that I believe that Officer
        Dobish’s intent when he left the Sunoco parking lot was to
        investigate [Gambino] for drunk driving.

             I honestly don’t see how there’s any plausible explanation
        beyond that. I’ve heard testimony about these failure to signal

2
    See 75 Pa.C.S.A. § 3802(a)(1).
3
    See 75 Pa.C.S.A. § 3362(a)(2).


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      indications. However, [] [O]fficer [Dobish] himself has indicated
      that he has rarely cited anyone for such violations.

            So that[,] coupled with the fact that he was travelling, by
      his admission, 95 miles per hour up Oregon Pike [] when
      [Gambino], at least my recollection of the testimony is that there
      is no indication of excessive speed in that area. [] Officer
      [Dobish] testified that [Gambino] stopped at a red light at Butler
      Avenue before he ever got on Route 30.

            In my opinion, the lane signaling and the speeding are
      nothing more that pretexts for what [Officer Dobish] intended to
      do all along[,] which is to pull this vehicle over for suspicion of
      drunk driving.

            That has to be based on reasonable suspicion. I do not
      believe that [] Officer [Dobish] had a reasonable suspicion at the
      time the vehicle was pulled over to suspect that, and I am
      therefore granting [Gambino’s] [M]otion to [S]uppress for that
      reason.

N.T., 3/27/14, at 87-88; see also Suppression Court Opinion, 6/23/14, at 4

(wherein the suppression court stated that “[i]t is sensible to conclude that

at 3:00 [a.m.], with no traffic in the immediate vicinity, a reasonable police

officer would not have pursued [Gambino’s] vehicle for such a minor traffic

violation in the absence of an invalid purpose.”).

      The Commonwealth filed a timely Notice of Appeal and a court-ordered

Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.

1925(b).

      On appeal, the Commonwealth raises the following issue for our

review:    “[w]hether the suppression court erred in granting [Gambino’s]

Motion to Suppress where the officer possessed the requisite probable cause

to stop [Gambino’s] vehicle for a violation of the Pennsylvania Motor Vehicle


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Code[, 75 Pa.C.S.A. § 101, et seq. (“Vehicle Code”)]?” Commonwealth Brief

at 4 (capitalization omitted).

            When the Commonwealth appeals from a suppression
      order, we . . . consider only the evidence from the defendant’s
      witnesses together with the evidence of the prosecution that,
      when read in the context of the entire record, remains
      uncontradicted. The suppression court’s findings of fact bind an
      appellate court if the record supports those findings.       The
      suppression court’s conclusions of law, however, are not binding
      on an appellate court, whose duty is to determine if the
      suppression court properly applied the law to the facts.

Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013) (citation

omitted).

      The Commonwealth contends that the suppression court erroneously

applied a reasonable suspicion standard in determining whether Officer

Dobish possessed the quantum of suspicion required to validate the stop of

Gambino’s vehicle. Commonwealth Brief at 10. The Commonwealth further

contends that regardless of whether Officer Dobish possessed reasonable

suspicion of DUI, he possessed probable cause to stop Gambino for violating




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sections 3334 (relating to turning movements and required signals)4 and

3362     (relating   to   speed   limits)5   of   the   Vehicle   Code.   Id.   The

Commonwealth points to Officer Dobish’s testimony that that he observed


4
    Section 3334 provides, in relevant part, as follows:

        Turning movements and required signals.

               (a) General rule. --Upon a roadway no person shall turn
        a vehicle or move from one traffic lane to another or enter the
        traffic stream from a parked position unless and until the
        movement can be made with reasonable safety nor without
        giving an appropriate signal in the manner provided in this
        section.

              ***

75 Pa.C.S.A. § 3334(a).
5
    Section 3362 provides, in relevant part, as follows:

        Maximum speed limits.

        (a) General rule. --Except when a special hazard exists that
        requires lower speed for compliance with section 3361 (relating
        to driving vehicle at safe speed), the limits specified in this
        section or established under this subchapter shall be maximum
        lawful speeds and no person shall drive a vehicle at a speed in
        excess of the following maximum limits:

              ***

              (2) 55 miles per hour in other locations.
              (3) Any other maximum speed limit established under this
              subchapter.

              ***

75 Pa.C.S.A. § 3362(a)(2), (3).



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Gambino failing to signal while making a left turn and speeding at

approximately 78 miles per hour in a posted 55 mile per hour zone (using an

approved VASCAR Plus speed-timing device), and asserts that further

investigation would not help to establish these violations. Id. at 11, 13-14.

The Commonwealth contends that the suppression court erred by ruling that

Officer Dobish used the Vehicle Code violations as a “pretext” for stopping

Gambino for DUI, and by analyzing the stop under a “reasonable suspicion”

standard.   Id. at 15-16.   The Commonwealth argues that, by applying a

“reasonable suspicion” standard, the suppression court ignored evidence

that Officer Dobish had probable cause to stop Gambino due to his failure to

signal and speeding violations.   Id. at 16.    The Commonwealth contends

that, because Gambino violated the Vehicle Code in Officer Dobish’s

presence, Officer Dobish was permitted to execute a traffic stop of

Gambino’s vehicle, regardless of the nature of his investigation. Id. at 18.6

      Any violation of the Vehicle Code legitimizes a stop, even if the stop is

merely a pretext for an investigation of some other crime. Whren v. U.S.,

6
 The Commonwealth further contends that, because Officer Dobish obtained
probable cause to stop Gambino within his primary jurisdiction, he was
authorized to stop Gambino outside of his jurisdiction pursuant to 42
Pa.C.S.A. § 8953(a)(2) of the Municipal Police Jurisdiction Act.
Commonwealth Brief at 14. The Commonwealth also claims that Gambino
waived any claim regarding the absence of an agreement between the
Manheim Police Department and the Pennsylvania State Police, pursuant to
75 Pa.C.S.A. § 6109(a)(11), permitting Manheim officers to enforce the
speed limit on Route 30, because he failed to raise this issue as an
affirmative defense. Commonwealth Brief at 15. Because neither of these
arguments formed the basis for the suppression court’s decision, we need
not address them on appeal.


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517 U.S. 806, 812-13 (1996); see also Arkansas v. Sullivan, 532 U.S.

769, 772 (2001) (holding that a traffic violation arrest will not be rendered

invalid by the fact that it was a mere pretext for a narcotics search); U.S. v.

Robinson, 414 U.S. 218, 221 n.1 (1973).        This is true even if, as in the

instant case, the Vehicle Code violation witnessed is a minor offense. See

Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008) (stating that

“[t]he Fourth Amendment does not prevent police from stopping and

questioning motorists when they witness or suspect a violation of traffic

laws, even if it is a minor offense.”). Moreover, the Whren Court explained

that the “[s]ubjective intentions [of the officer] play no role in ordinary,

probable-cause Fourth Amendment analysis.” Whren, 517 U.S. at 813; see

also Chase, 960 A.2d at 120 (stating that, “[i]f 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.”).

      Here, although the suppression court challenged the pretextual nature

of the stop, it accepted the uncontradicted evidence that Gambino had

violated section 3334(a) of the Vehicle Code by changing lanes of travel

without using his vehicle’s turn signal.    See Suppression Court Opinion,

6/23/14,                                                                     at




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2-3.7

        We   conclude   that   the   stop   of   Gambino’s   vehicle   was   lawful.

Accordingly, the suppression court improperly granted Gambino’s Motion to

Suppress.

        Order reversed case remanded for further proceedings; Superior Court

jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2014




7
 The suppression court found Officer Dobish’s testimony that he had to
travel 95 miles per hour to catch up with Gambino’s vehicle to be incredible.
See Trial Court Opinion, 6/23/14, at 2-3. The trial court did not address or
discuss Officer Dobish’s testimony regarding his use of the VASCAR Plus
speed timing device to clock Gambino speeding at 78.4 miles per hour, in
violation of section 3362(a) of the Vehicle Code.


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