J-A08025-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ANDREW DAVID SIKORA, JR.

                         Appellant                   No. 1532 EDA 2015


            Appeal from the Judgment of Sentence April 24, 2015
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0003780-2014


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                 FILED AUGUST 22, 2016

      I agree with my distinguished colleagues that the trial court incorrectly

applied the reasonable suspicion standard to assess the validity of the traffic

stop. However, I believe that the officer possessed probable cause to stop

Appellant for driving at an unsafe speed. Since all issues on appeal relate to

the validity of the traffic stop, I would therefore affirm judgment of

sentence.

      I respectfully disagree with my colleague’s recitation of the facts. The

trial court’s opinion states, “Officer Fusco heard the car’s engine rev. Officer

Fusco looked in his side view mirror and saw the car’s taillights travelling

away from him at a high rate of speed.” Trial Court Opinion, 7/23/15, at 6.

Compare these findings to the majority’s memorandum, which states:


* Retired Senior Judge assigned to the Superior Court.
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      Officer Fusco did not testify as to what effect Appellant’s surging
      of the engine had on the speed of the vehicle he was driving.
      At the suppression hearing Officer Fusco only testified to hearing
      the engine surge and seeing Appellant’s taillights pulling away,
      and without any support, he made the conclusory statement that
      Appellant was traveling away from him at a high rate of speed.
      N.T., 3/10/15, at 9. Officer Fusco saw Appellant’s taillights in his
      side mirror. Officer Fusco merely caught a brief glimpse of the
      taillights proceeding in the opposite direction. Thus, Appellant’s
      surging of the engine was insufficient to give Officer Fusco
      probable cause.

Majority’s memorandum at 8 (emphasis in original, footnote omitted). This

factual recitation is contradicted by the record. Officer Fusco stated he saw

the vehicle “go in the opposite direction at a high rate of speed.”          N.T.

Suppression, 3/20/15, at 9.     Therefore, the officer did in fact know what

happened when Appellant revved the engine:              the vehicle suddenly

accelerated and reached a high rate of speed. The trial court credited the

officer’s testimony in its opinion, and, since that finding is clearly supported

by the record, we are bound by it.

      The majority disagrees with this finding by stating Officer Fusco’s

testimony is conclusory and lacks support.      By way of contradiction, the

majority notes that the only evidence of record to establish the vehicle’s

speed came from Appellant’s expert. The trial court found that the Corvette

accelerated to fourteen mph, but only up to the point “when it went out of

view on the MVR video just prior to the acceleration (rev’ing) being heard.”

Trial Court Opinion, 7/23/15, at 7 (citing N.T. Suppression, 3/20/15, at 62).

This finding was based on the expert’s opinion that Appellant accelerated

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from six mph to fourteen mph as he passed the officer’s vehicle.            N.T.

Suppression, 3/20/15, at 62.           That finding obviously says nothing about

what speed Appellant reached after passing the officer’s vehicle, which is

when the engine surge occurred. Indeed, the expert conceded that he did

not know how fast Appellant went as a result of that acceleration. Id. at 61-

62.    Moreover, the expert based his conclusions on normal, not rapid,

acceleration.1 Id. at 64.

       Thus, the expert’s finding says nothing about what speed Appellant

reached upon revving the engine and suddenly accelerating. Therefore, the

testimony of the police officer, which the trial court credited, establishes that

Appellant proceeded at a high rate of speed.

       “Where the record supports the factual findings of the trial court, the

appellate court is bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error.” Commonwealth v. Tam Thanh

Nguyen, 116 A.3d 657, 663-64 (Pa.Super. 2015) (citations omitted).

Clearly, the majority cannot discredit the officer’s testimony. Therefore, this

finding must be accepted.          I take the majority’s position to be that the

officer’s observation of the high rate of speed cannot establish probable

____________________________________________


1
   The vehicle in question was a Corvette; the record does not indicate year
or model, and the report makes no mention of examining the actual engine
in question. I do not think it is controversial to state that a Corvette, as a
sports car, is generally capable of rapid acceleration.



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cause. The majority’s criticism is more properly directed to whether Officer

Fusco’s observation would be sufficient for purposes of proving the violation

beyond a reasonable doubt. However, we are not answering that question.

“[Probable cause] is not the same ‘beyond-a-reasonable-doubt’ standard

which we apply in determining guilt or innocence at trial.” Commonwealth

v. Evans, 661 A.2d 881, 885 (Pa.Super. 1995) (quoting Commonwealth v.

Simmons, 440 A.2d 1228, 1234 (Pa.Super. 1982)).                Officer Fusco’s

testimony, as credited by the fact-finder, is sufficient to establish Appellant

accelerated to a high rate of speed for purposes of probable cause. 2

       Analyzing the legal inquiry in light of the facts as found by the trial

court, I would hold that probable cause existed to warrant a traffic stop for

driving at an unsafe speed. The statute reads:

       No person shall drive a vehicle at a speed greater than is
       reasonable and prudent under the conditions and having regard
       to the actual and potential hazards then existing, nor at a speed
       greater than will permit the driver to bring his vehicle to a stop
       within the assured clear distance ahead. Consistent with the
       foregoing, every person shall drive at a safe and appropriate
       speed when approaching and crossing an intersection or railroad
____________________________________________


2
   I believe the majority places too much emphasis on the officer’s inability
to accurately estimate the speed Appellant reached after the engine surge.
In my view, the officer had probable cause, at minimum, to stop the vehicle
and issue a written warning based on the observed conduct. “And, as noted
by the trial court, an officer need not stop a vehicle only where he or she
intends to issue a citation, but can effectuate a stop solely for purposes of
issuing the driver a warning.” Commonwealth v. Benton, 655 A.2d 1030,
1033 (Pa.Super. 1995) (citing Commonwealth v. Fisher, 440 A.2d 570,
572 (Pa.Super. 1982)).



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      grade crossing, when approaching and going around curve, when
      approaching a hill crest, when traveling upon any narrow or
      winding roadway and when special hazards exist with respect to
      pedestrians or other traffic or by reason of weather or highway
      conditions.

75 Pa.C.S. § 3361.

      “Probable cause exists where the facts and circumstances within the

officers’ knowledge are sufficient to warrant a person of reasonable caution

in   the   belief   that   an   offense   has   been   or   is   being   committed.”

Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (citation omitted).

Whether the facts and circumstances amount to probable cause is a question

of law.    Commonwealth v. Newman, 84 A.3d 1072, 1080 (Pa.Super.

2014). In making this determination, we consider

      all the factors and their total effect, and do not concentrate on
      each individual element.        . . . We also focus on the
      circumstances as seen through the eyes of the trained officer,
      and do not view the situation as an average citizen might. . . .
      Finally, we must remember that in dealing with questions of
      probable cause, we are not dealing with certainties. We are
      dealing with the factual and practical considerations of everyday
      life on which reasonable and prudent men act. l.

Evans, supra at 884-85 (Pa.Super. 1995) (citations omitted).

      We set forth in Commonwealth v. Heberling, 678 A.2d 794

(Pa.Super. 1996), that the statute in question embodies two general and

alternate types of conduct that constitute a violation: (1) driving at a speed

greater than is reasonable and prudent under the conditions and having

regard to the actual and potential hazards then existing; or (2) driving at a



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speed greater than will permit the driver to bring the vehicle to a stop within

the assured clear distance ahead.      Id. at 795. The second category does

not apply to these facts. It is also clear that Appellant was not approaching

an intersection or railroad grade crossing, a curve, hill crest, nor was he on a

narrow or winding roadway. However, the language “when special hazards

exist with respect to pedestrians” is part of a catchall category. Id.

      Herein, I would find Appellant’s high rate of speed was neither

reasonable nor prudent due to a special hazard existing with respect to

pedestrians.     Officer   Fusco   testified   that   this   incident   occurred   at

approximately 2:00 a.m. when businesses in the area were closing and

patrons were exiting.      Officer Fusco observed several pedestrians in the

immediate area.      N.T. Suppression, 3/20/15, at 39-40.               Officer Fusco

testified it was not uncommon for pedestrians to be visibly intoxicated and

walking in this area at this time of night. Id. at 8.

      In my view, that Appellant was traveling at a slow pace when he

passed Officer Fusco’s vehicle supports the conclusion that Appellant’s

driving was unsafe for the conditions.         Jaywalking pedestrians seeking to

cross a street rely on an assumption that approaching vehicles will not

suddenly accelerate. Rapid acceleration, as opposed to a gradual build-up of

speed, presents far more danger to a pedestrian seeking to cross the street,

especially when many of those pedestrians are likely to be impaired and not

in full control of their movements.             In this regard, Appellant cites

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Commonwealth v. Perry, 982 A.2d 1009, 1012 (Pa.Super. 2009), for the

proposition that a driver has no duty to yield to a pedestrian on a sidewalk.

Therein, the trial court specifically found that a driver failed to yield to a

pedestrian.     Perry simply stated that this particular finding was not

supported since the record indicated the pedestrian was on the sidewalk, not

the crosswalk. Id. This does not mean that a court, in assessing whether a

hazard existed, cannot consider the presence of pedestrians. Such a reading

is flatly contradicted by the plain text of the statute.

      Bearing in mind that we are reviewing only whether probable cause

justified the stop, I would hold that, under these facts, the officer possessed

probable cause to believe that Appellant’s sudden acceleration to a high rate

of speed in the presence of the pedestrians constituted a violation of the

Vehicle Code.     While the trial court applied the incorrect standard of

reasonable suspicion, we may affirm on any basis.          Commonwealth v.

Moser, 999 A.2d 602, 606, n.5 (Pa.Super. 2010). I would therefore affirm

the judgment of sentence.




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