J.S07037/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                           Appellee           :
                                              :
                    v.                        :
                                              :
STEVEN JOSEPH ANDERSON,                       :
                                              :
                           Appellant          :     No. 698 MDA 2015

               Appeal from the Judgment of Sentence March 25, 2015
          in the Court of Common Pleas of Berks County Criminal Division
                         at No(s): CP-06-CR-0002167-2014

BEFORE: BOWES, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED FEBRUARY 11, 2016

          Appellant, Steven Joseph Anderson, appeals from the judgment of

sentence following a bench trial and convictions for driving under the

influence of alcohol (“DUI”)1 and driving a vehicle at an unsafe speed.2

Appellant contends the police lacked probable cause to stop his vehicle. We

affirm.

        We set forth the findings of fact in the trial court’s opinion:

            1. On April 15, 2014, at approximately 1:59 a.m., Officer
            Peter P. O’Brien was on duty in a marked patrol vehicle
            and was merging onto the southbound SR222 from SR
            183. As Officer O’Brien merged into the right lane, he was

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802.
2
    75 Pa.C.S. § 3361.
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          passed by a Nissan Altima travelling in the passing lane
          travelling at a high rate of “speed.”

          2. Officer O’Brien was following the vehicle for about 1
          mile traveling 80mph. The vehicle slowed down to 50mph
          for .4 miles then accelerated to approximately 75mph.
          Officer O’Brien initiated a vehicle stop. [The driver] was
          identified as [Appellant].

          3. Upon making contact with the [Appellant], Officer
          O’Brien detected an odor of alcoholic beverage coming
          from inside the vehicle.        Officer O’Brien informed
          [Appellant] of the violations committed and noticed
          [Appellant’s] eyes to be bloodshot and glassy with dark
          puffy eyelids. Officer O’Brien asked [Appellant] if he had
          anything to drink. The Defendant responded and said “one
          drink”.

          4. Officer O’Brien asked [Appellant] to step out of the
          vehicle. [Appellant] was asked to submit to a series of
          standardized field sobriety tests (SFST). Officer O’Brien
          testified that he was certified to administer the SFST’s on
          the date in question. He further testified that [Appellant]
          failed all three tests given.        Officer O’Brien asked
          [Appellant] if he would submit to an Alco-Sensor test.
          [Appellant] agreed and the result was positive for alcohol
          consumption.

          5. At the conclusion of said SFST’s, [Appellant] was placed
          under arrest for suspicion of [DUI].

          6. [Appellant] was transported to St. Joe’s Medical Center.
          [Appellant] signed and consented for a sample of his blood
          to be tested. The BAC results were .125%[.]

Trial Ct.’s Findings of Fact, 10/7/14,3 at 1.

        Appellant was charged with the above crimes; the Commonwealth did

not charge Appellant with violating 75 Pa.C.S. § 3362, driving in excess of

3
    The document was served on this date.




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the maximum speed limit.        Appellant filed a pretrial motion to suppress

challenging, inter alia, whether the officer had probable cause to stop his

vehicle.

      At the suppression hearing, Officer O’Brien testified that the speed

limit for that portion of Route 222 was fifty-five miles per hour.       N.T.

Suppression Hr’g, 9/5/14, at 5. With respect to the conditions of the road,

the following testimony was heard:

           [Commonwealth]        I would like to briefly discuss Route
           222 in detail in the area specifically.

           [Officer O’Brien]    Okay.

           Q Can you describe the shape of the road there?

           A Ah, that section is straight but downhill.

           Q Any curves?

           A Not immediately where I noticed [Appellant].     Further
           down the road there is.

           Q Are there any street lights in that area?

           A No.

           Q You said this was a two-lane road; is that correct?

           A Yes.[4]

           Q Specifically that night what were the road conditions
           like?


4
  Specifically, this was a four-lane highway with two southbound and two
northbound lanes. N.T. Supression Hr’g at 10.




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         A There were no weather conditions.

         Q So the road was dry?

         A Right.

                                  *    *    *

         Q And why did you decide to activate your emergency
         equipment?

         A Because of the excessive speed I had observed.

Id. at 5-9.

      On cross-examination, the following exchange transpired:

         [Appellant’s counsel] Officer, you are familiar with the
         speeding -- to clock a car or to clock someone for
         speeding, give them a speeding ticket, you need to have
         either an approved device in your car or certified
         speedometer, correct?

         A Yes.

         Q You did not have a device in your car to clock this
         vehicle’s speed, did you?

         A No, I did not.

         Q You did not have a certified speedometer to clock this
         vehicle’s speed, correct?

         A The speedometer in the vehicle is certified on the dash.
         They are not regularly calibrated.

         Q You do not have any, you do not have any
         documentation with you showing that this was a certified
         speedometer and that someone had tested it within the --

         A No, I do not have that.

                                  *    *    *



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         Q I know you have a form in your police report that gives
         you like boxes that you can check for your observations as
         to how the vehicle was driving in motion. And you got a
         whole bunch of options about weaving or straddling lane
         lines, swerving, and drifting. You got all those boxes on
         that preprinted form you could use, correct?

         A Yes

         Q You didn’t check any of the boxes about swerving or
         drifting or crossing the line or straddling the line, correct?

         A Correct.

         Q Because you were following [Appellant].          He was
         maintaining his lane and driving his car, you know, where
         it was supposed to be, correct?

         A Yes.

         Q Dry roadway, correct?

         A Yes.

         Q No other cars on the road, correct?

         A Yes.

Id. at 10, 13-14.

      On redirect examination, the Commonwealth again asked the officer

the basis for stopping Appellant:

         [District attorney] You were asked about weaving or
         erratic driving. Was it your testimony you stopped this
         vehicle based only on speed; is that correct?

         A Yes.

Id. at 14.   Following the hearing, the court denied Appellant’s motion on

October 7, 2014.



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          After a February 25, 2015 bench trial, the court found Appellant guilty

of the above charges.5 On March 25, 2015, the court sentenced Appellant to

forty-eight hours to six months’ imprisonment. Appellant did not file a post-

sentence motion but filed a timely appeal.         Appellant timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.

          Appellant raises the following issues:

             Did the trial court err by denying . . . Appellant’s motion to
             suppress evidence obtained following a traffic stop without
             probable cause?

             Did the trial court err in denying the motion to suppress
             evidence where it applied an incorrect standard in
             determining the validity of the traffic stop?

Appellant’s Brief at 4.

          We summarize Appellant’s arguments in support of both of his issues.

Appellant contends that the record failed to establish he was driving at an

unsafe speed. He notes the Commonwealth did not present any testimony

regarding the condition of the road, his car was equipped with a headlight,

and he could slow down prior to the highway’s exit lane.                  Appellant

maintains the Commonwealth failed to present any evidence of an adverse

condition.      In sum, he posits the Commonwealth failed to establish the

officer had probable cause for the vehicle stop. We hold Appellant is due no

relief.

5
 We add that Appellant’s bail paperwork reflects a pending DUI charge in
Chester County. Affidavit of Rights, 5/13/14, at 2.




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            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. Where the prosecution prevailed in
        the suppression court, we may consider only the
        Commonwealth’s evidence 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 factual findings of the trial court, we are
        bound by those facts and may reverse only if the legal
        conclusions drawn therefrom are in error.

In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted).

           In Pennsylvania, the authority that addresses the
        requisite cause for a traffic stop is statutory and is found at
        75 Pa.C.S.A. § 6308(b), which provides:

           (b) Authority of police officer.—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,
        consistent with our Supreme Court’s clarification of
        constitutional principles under the Fourth Amendment and
        Article I, Section 8 of the Pennsylvania Constitution, stated
        with respect to § 6308(b):

              In light of our Supreme Court’s interpretation of
           the current language of Section 6308(b), we are
           compelled to conclude that the standards concerning
           the quantum of cause necessary for an officer to
           stop a vehicle in this Commonwealth are settled;
           notwithstanding any prior diversity on the issue


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          among panels of this Court. Traffic stops based on a
          reasonable suspicion: either of criminal activity or a
          violation of the Motor Vehicle Code under the
          authority of Section 6308(b) must serve a stated
          investigatory purpose.

                              *    *     *

             Mere reasonable suspicion will not justify a vehicle
          stop when the driver’s detention cannot serve an
          investigatory purpose relevant to the suspected
          violation. In such an instance, “it is encumbent [sic]
          upon the officer to articulate specific facts possessed
          by him, at the time of the questioned stop, which
          would provide probable cause to believe that
          the vehicle or the driver was in violation of
          some provision of the Code.”

       Id. at 1290–1291. Accordingly, when 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 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. Illustrative of these two
       standards are stops for speeding and DUI. If a vehicle is
       stopped for speeding, the officer must possess
       probable cause to stop the vehicle. This is so because
       when a vehicle is stopped, nothing more can be
       determined as to the speed of the vehicle when it was
       observed while traveling upon a highway. On the other
       hand, if an officer possesses sufficient knowledge based
       upon behavior suggestive of DUI, the officer may stop the
       vehicle upon reasonable suspicion of a Vehicle Code
       violation, since a stop would provide the officer the needed
       opportunity to investigate further if the driver was
       operating under the influence of alcohol or a controlled
       substance. With these guiding principles and examples in
       mind, we now turn to the examination of the Vehicle Code
       violation subject of this appeal.



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

(second emphasis added and parentheticals and some citations omitted).

            To determine whether probable cause exists, we must
            consider whether 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.

Commonwealth v. Ibrahim, ___ A.3d ___, 2015 WL 6777602 at *4 (Pa.

Super. Nov. 6, 2015).

            We are mindful that probable cause does not require
            certainty, but rather exists when criminality is one
            reasonable inference, not necessarily even the most likely
            inference. . . . [W]hile an actual violation of the [Vehicle
            Code] need not ultimately be established to validate a
            vehicle stop, a police officer must have a reasonable and
            articulable belief that a vehicle or driver is in violation of
            the [Vehicle Code] in order to lawfully stop the vehicle.

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

(internal    quotation   marks    and   citations   omitted);   see Michigan v.

DeFillippo, 443 U.S. 31, 36 (1979) (holding validity of detention is not

dependent on whether defendant actually committed or was later acquitted

of crime). “We have made clear that the kinds and degree of proof and the

procedural requirements necessary for a conviction are not prerequisites to a

valid” detention.     DeFillippo, 443 U.S. at 36.       Indeed, the United States

Supreme Court held that an officer’s reasonable mistake of law can give rise

to reasonable suspicion justifying a vehicle stop. Heien v. North Carolina,

135 S. Ct. 530, 534 (2014); id. at 539 (“the mistake of law relates to the


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antecedent question of whether it was reasonable for an officer to suspect

that the defendant’s conduct was illegal. If so, there was no violation of the

Fourth Amendment in the first place.”).

      Instantly, the record reflects Officer O’Brien followed Appellant’s

vehicle for almost a mile at approximately eighty miles per hour according to

the officer’s uncertified speedometer. Trial Ct.’s Findings of Fact at 1; N.T.

Suppression Hr’g at 10. The speed limit was fifty-five miles per hour. N.T.

Suppression Hr’g at 5. The officer repeatedly testified he stopped Appellant

because of speeding.6    Id. at 9, 14.    The record reflects that the officer,

based on firsthand knowledge, articulated specific facts tending to establish,

at the very least, a reasonable inference that Appellant was violating the

Vehicle Code. See Salter, 121 A.3d at 992-93; see also Ibrahim, 2015

WL 6777602 at *4; Spieler, 887 A.2d at 1275.            As the Spieler Court

observed, whether Appellant actually violated the Vehicle Code is not a

prerequisite for a legitimate vehicle stop. See Spieler, 887 A.2d at 1275.

That the record may be insufficient to convict Appellant of violating Section

3361 (or Section 3362) of the Vehicle Code does not necessarily invalidate

the vehicle stop.7 See Spieler, 887 A.2d at 1275; accord DeFillippo, 443



6
  Presumably, the officer was relying on 75 Pa.C.S. § 3362, driving in excess
of the maximum speed limit.
7
  Indeed, an officer’s reasonable, mistaken belief that a defendant violated
the law may justify the vehicle stop. See Heien, 135 S. Ct. at 534.



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U.S. at 36.   Thus, after careful consideration, we affirm the court below.

See In re J.E., 937 A.2d at 425.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2016




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