J-A30012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    MICHAEL W. SMITH, SR.                        :
                                                 :
                      Appellant                  :   No. 268 WDA 2016

            Appeal from the Judgment of Sentence January 20, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0008831-2015


BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED: February 15, 2018

        Michael W. Smith, Sr. appeals from the January 20, 2016 judgment of

sentence of ninety days imprisonment followed by eighteen months

probation, a $1,500 fine, and completion of drug and alcohol treatment and

Alcohol Highway Safety School.                 Sentence was imposed after he was

convicted at a stipulated non-jury trial of driving under the influence (DUI)

highest rate of alcohol (second offense), DUI general impairment/incapable

of safe driving (second offense), and prohibitions in specified places.1        We

affirm.


____________________________________________


1 75 Pa.C.S. § 3353, Prohibitions in Specified Places, provides in pertinent
part:
      (a) General Rule – Except when necessary to avoid conflict with
           other traffic or to protect the safety of any person or vehicle or
(Footnote Continued Next Page)
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      The trial court succinctly summarized the evidence.

      [O]n May 10, 2015, City of Pittsburgh Police Officers, including
      Officer Dennis Baker, were on duty in the West End of
      Pittsburgh. Baker was on a call for a female down on a sidewalk
      when another call came in for a parking complaint close by.
      Specifically, the complaint was from a resident a 3229 Huxley
      Street that a Chevy vehicle bearing license plate JLZ6141 was
      blocking her driveway and she couldn’t get out. Due to the
      nature of the call for the woman down, Officers remained at that
      scene before a second call came in from the resident at 3229
      Huxley regarding the Chevy blocking her driveway. Officers
      proceeded to the Huxley Street address one hour after the first
      call from the resident. Upon arrival Officer Baker observed the
      Chevy vehicle parked in front of the driveway at 3229 Huxley.
      The defendant was in the driver’s seat with loud music playing in
      the vehicle and when he observed the police he immediately
      drove off. The complainant/homeowner approached the Officer
      and said she believed that the defendant was intoxicated.

      Officer Baker and his partner followed the defendant’s vehicle for
      two blocks and initiated a traffic stop with the intention of citing
      the defendant for blocking the complainant’s driveway and
      investigate possible criminal activity. Officers activated their
      lights and sirens and the defendant pulled over in an area that
      he claimed was his driveway. The defendant immediately exited
      his vehicle with his hands in the air and approached the patrol
      car. Officers told the defendant to stop, yet he continued to
      approach. His clothes were in disarray, his belt was undone and
      his shoes untied. His eyes were bloodshot and watery and he
      had difficulty standing, was holding on to the vehicle to maintain
      balance and admitted to consuming alcohol earlier in the day.
      The defendant performed poorly on standardized field sobriety
      tests and was taken to the station for testing. His blood alcohol
      was determined to be .364%.

(Footnote Continued) _______________________

             in compliance with law or the directions of a police officer or
             traffic-control device, no person shall
                    ...
                    (2) Stand or park a vehicle
                          (i) in front of a public or private driveway.



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Trial Court Opinion, 8/7/17, at 2-3.

      Following his arrest, Appellant filed an omnibus pretrial motion in

which he sought to suppress evidence based on a lack of reasonable

suspicion or probable cause for the traffic stop. Following a hearing, the trial

court denied the motion. Appellant proceeded to a non-jury trial and agreed

to the incorporation of the evidence from the suppression hearing. The trial

court found him guilty of all charges. Following sentencing, Appellant filed a

timely notice of appeal.     After several extensions due to difficulties in

obtaining a transcript of the suppression hearing, Appellant complied with

the trial court’s order to file a concise statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant presents one issue for our review: “Did the police have the

requisite probable cause to perform a traffic stop of Mr. Smith’s vehicle for

violating § 3353(A)(2) of the Motor Vehicle Code where there were no

reasonable grounds to believe that Mr. Smith was driving under the

influence?” Appellant’s brief at 5 (unnecessary capitalization omitted).

      In reviewing the trial court’s denial of a suppression motion,

            We review the denial of a motion to suppress by examining
      whether the trial court's factual findings are supported by the
      record. In doing so, we consider all of the Commonwealth's
      evidence, as the succeeding party, as well as any defense
      evidence that went uncontradicted. We are bound by any factual
      findings that are supported by the record. However, we owe no
      deference to any legal conclusions drawn by the trial court. To
      the contrary, we review those conclusions de novo.




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Commonwealth v. Jacoby, 170 A.3d 1065 (Pa. 2017) (internal citations

omitted).

      At issue is the legality of the vehicle stop herein.       The following

principles inform that determination.      In Commonwealth v. Feczko, 10

A.3d 1285 (Pa.Super. 2010) (en banc), this Court explained that, depending

on the circumstances, a police officer must have either reasonable suspicion

or probable cause before effectuating a traffic stop. A traffic stop based on a

reasonable suspicion of a Motor Vehicle Code violation or criminal activity

must serve a stated investigatory purpose.      Mere suspicion is not enough

where the driver’s detention cannot further an investigatory purpose

associated with the suspected violation.

      The distinction between Motor Vehicle Code offenses that require

probable cause and those that require only reasonable suspicion was

explained in Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.Super.

2015).

      [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 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 travelling upon a highway. On the other hand, if an officer

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       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.

       This test was further deleniated in Commonwealth v. Haines, 166

A.3d 449, 455 (Pa.Super. 2017).                We reasoned that, when vehicle stops

were effectuated for offenses such as speeding, failing to stay in a single

lane, or driving the wrong way on a one way street, it would be unlikely to

find further evidence relevant to the offense in the vehicle.                In such

circumstances, the Terry2 rationale permitting further investigation based

on reasonable suspicion did not justify the stop.

       The Commonwealth does not dispute that probable cause was

necessary to justify the traffic stop based on the Motor Vehicle Code

violation for blocking a driveway.              Appellant argues first that a vehicle

blocking a driveway is a “common” call in that area, and that commission of

that offense “in and of itself” is insufficient to establish probable cause to

stop Appellant’s vehicle. Appellant’s brief at 14. In order for the officer to

lawfully stop the vehicle for a violation of 75 Pa.C.S. § 3353, Appellant

contends that the officer would have had to reasonably believe that

Appellant “was committing another offense.”                  Appellant’s brief at 13

(emphasis added). Appellant then segues into an assertion, without more,
____________________________________________


2   Terry v. Ohio, 392 U.S. 1 (1968).



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that the caller who told police that she believed Appellant was intoxicated

did not testify at the suppression hearing.

      The Commonwealth counters that, in order to lawfully stop Appellant’s

vehicle, Officer Baker had 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 driver was in some violation of some provision of

the Vehicle Code.”     Commonwealth v. Lindblom, 854 A.2d 604, 607

(Pa.Super. 2004). In determining whether the officer had probable cause,

we should “look to the totality of the circumstances as viewed through the

eyes of a reasonable police officer guided by experience and training.”

Commonwealth v. Wells, 916 A.2d 1192 (Pa.Super. 2007).                      The

Commonwealth cites Commonwealth v. Chase, 960 A.2d 108, 113

(Pa.Super. 2008), in support of its contention that where a police officer

observes a traffic code violation, he has probable cause to stop the vehicle

even if the offense is a minor one.

      Officer Baker testified that he initiated the traffic stop in order to

further investigate and cite Appellant for the violation of 75 Pa.C.S. §

3353(a)(2)(i), which prohibits a person from standing or parking a vehicle in

front of a public or private driveway.        The suppression court found that

Officer Baker articulated sufficient facts in support of a violation, i.e., that

Appellant’s vehicle blocked the resident’s driveway for over an hour.




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      The notes of testimony from the suppression hearing confirm that

Appellant’s suppression challenge was limited to the validity of the stop.

N.T., 1/7/16, at 3.   Officer Dennis Baker testified that he and his partner

responded after receiving the second of two dispatches regarding 911 calls

reporting a car blocking the caller’s driveway.   The police were delayed in

responding because they were tending to an injured person while waiting for

medics to arrive. The complainant had provided a description of the vehicle

and its license plate number. Upon arriving, Officer Baker and his partner

noted that a vehicle matching the description they had been given was

blocking the driveway.   Appellant was in the driver’s seat and loud music

was emanating from the vehicle. When Appellant saw the officers, he drove

away. The caller exited her residence and spoke to police.      She informed

them that she believed that Appellant was intoxicated. The officers followed

the vehicle for two blocks and then activated lights and sirens.    Appellant

stopped his vehicle, exited, and approached the officers, disregarding their

direction to stop. Viewing his conduct as threatening, the officers restrained

him for their safety.    Thereafter, the officers observed indications that

Appellant was intoxicated.

      Appellant offers no authorities in support of his contention that an

observed violation of the Motor Vehicle Code for parking in front of another

person’s driveway, standing alone, cannot provide probable cause for police

to stop the vehicle. To the extent that Appellant is arguing that the Motor


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Vehicle Code violation herein is only a secondary offense that alone would

not justify the stop, his position is undeveloped and unsupported. See e.g.

Commonwealth v. Henderson, 663 A.2d 728, 737 (Pa.Super. 1995)

(holding that no violation of the Motor Vehicle Code occurs when a driver or

front-seat passenger over the age of four fails to fasten seat belt until the

driver simultaneously violates another provision of the Code).     Appellant’s

bald assertion, devoid of “reasoned and developed arguments supported

with citations to relevant legal authority,” is not reviewable and waived for

lack of development.   Commonwealth v. Spotz, 18 A.3d 244, 326 (Pa.

2011); see also Pa.R.A.P. 2119.

     We find that the officer articulated specific facts that provided probable

cause to believe Appellant violated 75 Pa.C.S. § 3343(a)(2)(i), see footnote

1, supra, and which justified the stop. The officer also confirmed there was

no construction on the street or road conditions that would provide a

defense to the violation. Hence, the record supports the suppression court’s

finding that there was probable cause for the vehicle stop, and that the

evidence gleaned from the stop was admissible.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




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