J-A15027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                          Appellee

                     v.

ZACHARY COMFORT

                          Appellant               No. 3185 EDA 2013


         Appeal from the Judgment of Sentence November 15, 2013
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001757-2013


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                          FILED JULY 29, 2014

      Zachary Comfort appeals from the judgment of sentence entered in

the Court of Common Pleas of Chester County following his conviction for

driving under the influence of a controlled substance, 75 Pa.C.S. §



motion to suppress. We affirm.

      State Troopers Zachary Fronk and Anthony Lewis were conducting

routine patrol in an unmarked vehicle when they observed Comfort driving.



approximately one mile, the troopers used the speedometer in the patrol car

to determine that Comfort was traveling eighty (80) miles per hour in an

area where the posted speed limit was fifty-five (55) miles per hour. The

troopers initiated a traffic stop.
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were dilated and his eyes were glassy and bloodshot. Comfort admitted to

smoking marijuana earlier in the day and consented to a blood draw, which



blood tested positive for the presence of marijuana.

        Comfort was arrested and charged with driving under the influence of

a controlled substance,1 failure to obey traffic control devices,2 and careless

driving.3 On August 16, 2013, Comfort filed a motion to suppress, arguing

the troopers lacked probable cause to stop his vehicle because the

Commonwealth did not prove the accuracy of the speedometer testing

equipment



stipulated fact hearing on



        On November 15, 2013, the trial court held a stipulated fact trial, after

which it found Comfort guilty of DUI             controlled substance. Comfort was




____________________________________________


1
    75 Pa.C.S. § 3802(d).
2
    75 Pa.C.S. § 3111(a).
3
    75 Pa.C.S. § 3714(a).



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                                                                      4
sentenced to seventy-                                                     On appeal,

Comfort, raises one issue for our review:

          Whether      the    suppression      court   erred   by   denying




        Our standard of review for an order denying a motion to suppress is

well established.


        findings are supported by the record and whether the legal
        conclusions drawn therefrom are correct. We may consider the
        evidence of the witnesses offered by the Commonwealth, as
        verdict winner, and only so much of the evidence presented by
        [the] defense that is not contradicted when examined in context
        of the record as a whole. We are bound by facts supported by
        the record and may reverse only if the legal conclusions reached
        by the court were erroneous.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa. Super. 2006).

        Comfort argues the suppression court erred in finding the troopers had

reasonable suspicion to stop Comfort because no facts suggest this was an

investigable offense (i.e., the troopers could not have discovered anything



the troopers needed probable cause in order to lawfully perform a traffic

stop.    Comfort further argues probable cause did not exist at the time of the

stop because the Commonwealth failed to prove that the speedometer used

____________________________________________


4
                                                                    esolution of this
appeal.



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in the patrol vehicle was accurate because it did not prove the accuracy of

the equipment used to test the speedometer.

        We note first that Comfort is correct that the applicable standard is the

more stringent one of probable cause. The troopers stopped Comfort for a

speeding violation, not for suspected DUI.       The Commonwealth concedes

that probable cause is the applicable standard. See

        In Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)



potential of a vehicle stop based on a reasonable suspicion of DUI as

                                                                          Id. at

1289 (citing Commonwealth v. Sands, 887 A.2d 261, 270 (Pa. Super.

2005)).     Whereas a vehicle stop for suspected DUI may lead to further

incriminating evidence such as an odor of alcohol or slurred speech, a stop

for suspected speeding is unlikely to lead to further evidence relevant to that

offense. Id. Therefore,


        cannot be justified by a mere reasonable suspicion, because the
        purposes of a Terry [5] stop do not exist maintaining the status
        quo while investigating is inapplicable where there is nothing
        further to investigate. An officer must have probable cause
        to make a constitutional vehicle stop for such offenses.

Id. at 1290 (quoting Commonwealth v. Chase, 960 A.2d 108, 116 (Pa.

2008) (emphasis added)). See also Commonwealth v. Landis, 89 A.3d
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5
    Terry v. Ohio, 392 U.S. 1 (1968).



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694 (Pa. Super. 2014) (showing of probable cause necessary to justify police



obey roadway laned for traffic, where there was no express indication that

officer stopped defendant in order to conduct additional investigations into

driving under influence (DUI) or other impairments of ability to drive safely);

Chase, supra (reaffirming     probable cause standard for non-investigative

detentions of suspected Vehicle Code violations).

      In Feczko



§ 3309. We held, therefore, that the vehicle stop could be constitutionally

valid only

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

                        Feczko, 10 A.3d at 1291.       We also held that the



median line and the fog line created probable cause to suspect a violation of

section 3309. Id.

      The analysis in Feczko is applicable here. After obser

vehicle at a consistent distance for approximately one mile, the troopers

determined that Comfort was traveling at a speed of 80 miles per hour in an




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area where the posted speed limit was 55 miles per hour.6             When the

troopers stopped Comfor

regarding the speeding violation. Pursuant to Feczko, therefore, the

troopers needed probable cause to believe that Comfort violated the Vehicle

Code.    75 Pa.C.S. §§ 3111(a), 3714(a).         Since the troopers were able to

articulate facts that established an unequivocal violation, we conclude that

probable cause existed in this case for a lawful traffic stop.              See

Commonwealth v. Gleason, 785 A.2d 983, 986 (Pa. 2001) (in deciding

whether police officer has probable cause to conduct traffic stop for violation

of Vehicle Code, court need only rely on specific facts articulated by officer

to establish that vehicle or driver was in violation of some provision of

Vehicle Code); Commonwealth v. Enick, 70 A.3d 843 (Pa. Super. 2013)

(holding officer had probable cause to stop vehicle after observing vehicle

briefly cross double yellow line into oncoming traffic).

        Comfort also argues that because the Commonwealth failed to produce

documentation verifying the accuracy of the speedometer testing equipment,

the troopers lacked probable cause to perform the initial traffic stop.     We
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6
    For a police officer to ascertain the speed of a motor vehicle using a

distance no less than three-tenths (3/10) of a mile. See 75 Pa.C.S. §
                                   --The rate of speed of any vehicle may
be timed on any highway by a police officer using a motor vehicle equipped
with a speedometer. In ascertaining the speed of a vehicle by the use of a
speedometer, the speed shall be timed for a distance of not less than three-




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find this argument unpersuasive.           We agree with the Commonwealth that

the appellant is conflating whether the troopers had probable cause at the

time of the stop with whether the Commonwealth had sufficient evidence at

trial to sustain a conviction against Comfort for speeding. The officer is not

required to prove the violation in order to make a lawful traffic stop; the

sufficiency of the evidence required to sustain a speeding conviction is

irrelevant to the quantum of cause an officer needs to conduct a lawful

vehicle stop.7

       Additionally, we point out that the parties stipulated that Comfort was

timed for a distance of one mile and was clocke

speedometer going 80 miles per hour in a 55 mile per hour zone.           See

Stipulation in Lieu of Testimony and Other Evidence, 9/5/2013, at ¶2 (E)-



tested and found accurate on November 28, 2012, id. at ¶2 (I)-(J), and a

copy of the certificate of accuracy was attached to the Stipulation as Exhibit



because the Commonwealth did not present a certificate of accuracy for the

actual testing equipment, though an interesting argument, is of no moment



____________________________________________


7
 We note that at trial the Commonwealth withdrew the summary charges of
careless driving and obedience to traffic control device, and proceeded only
on the DUI charge, 75 Pa.C.S. § 3805(d)(1). See N.T. Trial, 11/15/2013, at
11.



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here.    As we noted above, the Commonwealth withdrew the summary

charges of careless driving and obedience to traffic control device.

        In light of the foregoing, we agree with the Commonwealth that the



motion to suppress evidence. Hughes, supra.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2014




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