J-S39038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   Appellee                :
                                           :
                      v.                   :
                                           :
GREGORY J. GRANT,                          :
                                           :
                   Appellant               :     No. 1584 MDA 2015

            Appeal from the Judgment of Sentence August 14, 2015
               in the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002662-2014

BEFORE:       STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 29, 2016

        Gregory J. Grant (Appellant) appeals from the judgment of sentence

entered August 14, 2015 after he was found guilty of two counts of driving

under the influence of alcohol or a controlled substance (DUI). We affirm.

        On May 18, 2014 at approximately 2:15 a.m Officer Charles

Rauschkolb (Officer Rauschkolb) was dispatched to the area of the

McDonald’s restaurant in Shavertown, following a 911 call that reported a

vehicle driving erratically.    N.T., 4/16/2015, at 4-5.      The 911 caller

described the vehicle as a white Dodge Durango, and provided the

dispatcher with “the registration of the vehicle.”1     Id. at 4.   As Officer

Rauschkolb approached the McDonald’s he saw a white Dodge Durango in



1
    Presumably, Officer Rauschkolb was referring to the license plate number.


*Retired Senior Judge assigned to the Superior Court.
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the drive-thru.      Id. at 6.   Upon locating the vehicle, Officer Rauschkolb

“went up the road and parked in a parking lot[,] … activated [his] camera in

the car and [] waited a few moments.” Id. He then observed the following:

       [Appellant] pulls out of McDonald’s. As [Appellant] pulled out,
       he made a very wide sweeping turn and pulled into the center
       turn lane travelling south on the highway. The vehicle remained
       in that lane for probably, I would say, 200 feet, then pulled back
       into the southbound lane of travel. I then proceeded out after
       the vehicle with the camera still activated. I pulled behind the
       vehicle, and at that time I did see the vehicle drift or travel into
       – or over the slashed dotted line for both southbound lanes of
       travel. A vehicle did come up on me at one point in time, was
       about to pass [Appellant], and he hit the [brakes]. It appeared
       at that time the [Appellant] was going to drift over into his lane.
       After seeing [Appellant] drift over into the southbound passing
       lane, [] I think it was four or five times and along with the fact of
       him driving southbound in the center turn lane of State Route
       309, I activated my visual signals and stopped [Appellant].

Id. at 6-7.

       Once Officer Rauschkolb encountered Appellant he noticed “a strong

odor of intoxicating beverage on his breath along with glassy and bloodshot

eyes.” Id. at 7. Officer Rauschkolb also observed an open can of beer in

the vehicle.   Id.     Officer Rauschkolb, who is certified in sobriety testing,

administered two field sobriety tests, both of which Appellant failed. Id. at

8.    While conducting one of the tests, Appellant stumbled, and Officer

Rauschkolb “considered [Appellant] a possible threat to himself for injury.”

Id.   At that point, Officer Rauschkolb informed Appellant he was under

arrest for DUI.




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          Appellant was subsequently charged with DUI, general impairment,

incapable of driving safely, 2nd offense and DUI, highest rate of alcohol, 2nd

offense.

          On January 7, 2015, Appellant filed a motion to suppress evidence

seized as a result of the traffic stop, arguing the stop was illegal. On April

16, 2015, a suppression hearing was held. On May 4, 2015, the trial court

entered an order denying Appellant’s motion to suppress and scheduled

trial.2

          On June 16th, 2015, Appellant waived his right to a jury trial, and the

parties agreed to the entry of the April 16, 2015 suppression hearing

transcript, which was being “introduced for purposes of trial testimony in lieu

of calling a live witness.” N.T., 6/16/2015, at 4.3 Both the Commonwealth

and Appellant rested upon the entry of the suppression hearing transcript,

the stipulation regarding the breath test results, and the findings of fact and

conclusions of law entered by the trial court.

          Based upon the foregoing, the trial court found Appellant guilty on

both counts.        On August 14, 2015, Appellant was sentenced to the

intermediate      punishment    program,   which   utilizes   house   arrest   with


2
  Following the denial of Appellant’s motion to suppress but prior to trial,
Appellant moved the trial court to file its findings of facts and conclusions of
law. Following a hearing, the trial court provided its findings of facts and
conclusions of law on the record and set a new trial date.
3
  Officer Rauschkolb was the only witness to testify at the April 16, 2015
suppression hearing.

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electronic monitoring.    Appellant was also ordered to pay a fine of

$1,500.00, plus costs.

      Appellant presents one issue for this Court’s review: “Whether the trial

court erred in denying [Appellant’s] motion to suppress[,] finding that the

traffic stop of [Appellant’s] vehicle and subsequent arrest were not illegal

under the U.S. and Pa. Constitutions?” Appellant’s Brief at 3.

      We consider Appellant’s issue mindful of the following.

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct. [W]e may consider only the evidence of the prosecution
      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 record supports the findings of the suppression
      court, we are bound by those facts and may reverse only if the
      court erred in reaching its legal conclusions based upon the
      facts.

Commonwealth       v. Prisk, 13 A.3d 526, 530 (Pa. Super. 2011) (quoting

Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en

banc)).

      Appellant argues the record does not support the trial court’s finding

that Officer Rauschkolb initiated the traffic stop based upon probable cause

for careless driving. Appellant’s Brief at 8. Specifically, Appellant contends

that the evidence presented does not show that he drove his vehicle in a

careless manner or that Appellant’s driving posed a “high probability that a




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motor vehicle accident would occur which is a necessary element of the

traffic offense of careless driving.”4 Id. at 9.

      We begin by setting forth the relevant principles of law regarding

traffic stops. The authority of a police officer to stop a vehicle is governed

by 75 Pa.C.S. § 6308(b), and provides the following:

      Whenever a police officer is engaged in a systematic program of
      checking vehicles or drivers or has reasonable suspicion that a
      violation of this title is occurring or has occurred, he may stop a
      vehicle, upon request or signal, for the purpose of checking the
      vehicle’s registration, proof of financial responsibility, vehicle
      identification number or engine number or the driver’s license, or
      to secure such other information as the officer may reasonably
      believe to be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). In Commonwealth v. Feczko, 10 A.3d 1285 (Pa.

Super. 2010) (en banc), this Court explained that, based upon our Supreme

Court’s interpretation of the language of subsection 6308(b), a traffic stop

based upon reasonable suspicion must serve an investigatory purpose.

Otherwise, probable cause is necessary to initiate the stop.

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered.        If it is not
      necessary to stop the vehicle to establish that a violation of the
      Vehicle Code has occurred, an officer must possess probable


4
  Appellant also argues that the trial court erred in holding that Officer
Rauschkolb had reasonable suspicion to stop Appellant’s vehicle for DUI
because the officer “never expressed an intention that he stopped
[Appellant’s] vehicle for a DUI or other investigative purposes.” Id. at 12.
Because we agree with the trial court that Officer Rauschkolb had probable
cause to stop Appellant for careless driving, we need not determine whether
reasonable suspicion for DUI was articulated. Commonwealth v. Brown,
64 A.3d 1101, 1106 n.5 (Pa. Super. 2013).

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      cause to stop the vehicle. Where a violation is suspected, but a
      stop is necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop.

Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa. Super. 2015).

      The statute governing careless driving provides the following: “Any

person who drives a vehicle in careless disregard for the safety of persons or

property is guilty of careless driving, a summary offense.” 75 Pa.C.S.

§ 3714(a).    Because an investigation following the traffic stop would have

provided Officer Rauschkolb with no additional information as to whether

Appellant was guilty of careless driving, probable cause was necessary to

initiate the stop.

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

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal

quotation marks and citations omitted).5



5
   Because courts apply an objective standard in determining whether
probable cause existed, it is of no importance that Officer Rauschkolb
articulated the wrong standard (reasonable suspicion rather than probable
cause). As correctly noted by the Commonwealth: “Officer Rauschkolb’s
incorrect articulation of standard is not relevant since the facts he presented
were sufficient for probable cause.” Commonwealth’s Brief at 8-9.

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        Here, Officer Rauschkolb testified that he initiated a stop of Appellant’s

vehicle after he observed several episodes of Appellant driving erratically.

He saw Appellant make a wide sweeping turn onto State Route 309 and

proceed to drive south for 200 feet in the turning lane before returning to

the southbound travelling lane. Appellant also drifted over the dotted line

separating the two southbound lanes of travel approximately four or five

times.      Further, Officer Rauschkolb witnessed another vehicle brake

suddenly because it appeared as if Appellant was going to enter that driver’s

lane.

        The trial court found Officer Rauschkolb’s testimony credible and

concluded that the officer possessed probable cause to stop Appellant for

careless driving. Trial Court Opinion, 10/16/2015, at 3. We find no error in

the trial court’s ruling.   See, e.g., Commonwealth v. Wilson, 111 A.3d

747, 754-55 (Pa. Super. 2015) (holding officer had probable cause to stop

vehicle for careless driving where he “observed it completely stopped in the

middle of the road, and then, when the officer approached, the vehicle

began to move but swerved multiple times across the yellow lines and fog

line”).

        Therefore, Appellant’s suppression motion was properly denied and he

is entitled to no relief from this Court.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2016




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