J. A27003/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                     v.                 :
                                        :
NATHAN BALBOA ABLE,                     :        No. 1925 WDA 2013
                                        :
                          Appellant     :


         Appeal from the Judgment of Sentence, November 20, 2013,
              in the Court of Common Pleas of Fayette County
              Criminal Division at No. CP-26-CR-0001642-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 03, 2014

      Appellant appeals from the judgment of sentence, challenging the

original ruling of the suppression court which denied suppression.1 We note

that the court below entered an opinion on January 14, 2014 stating that its

original decision was in error and asking this court to reverse its decision.

Finding that suppression should have been granted, we reverse the

suppression ruling and vacate the judgment of sentence.

      We begin our factual history by presenting the findings of fact by the

trial court:

               1.   In the early morning hours of May 12, 2012,
                    Trooper Anthony Demarche was on patrol near


1
  Appellant’s notice of appeal purported to appeal from the April 12, 2013
order denying suppression. The appeal properly lies from the judgment of
sentence.
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                  the Borough of Vanderbilt.          N.T., 2/12/13, at
                  6-7.

            2.    As the Trooper proceeded on State Route 201,
                  he observed a silver Chrysler 300C Sedan
                  proceeding in the same direction and directly
                  in front of his vehicle. Id. at 7-8.

            3.    Following the Chrysler, he observed it drifting
                  within its lane. Id. at 8.

            4.    Additionally, within a distance of two to three
                  miles, the Trooper observed the vehicle drift
                  across the fog line in its lane on five occasions.
                  Id. at 8-9.

            5.    This occurred on a clear night on or about 2:44
                  am. Id. at 8.

            6.    After these observations, the Chrysler being
                  operated by Appellant was stopped. Id. at 9.

            7.    The Petition for Writ of Habeas Corpus was
                  withdrawn by Appellant at the time of the
                  hearing. Id. at 11.

            8.    The Commonwealth did not offer any evidence
                  of other vehicles on the roadway, or any
                  evidence that Appellant's driving was erratic or
                  unsafe.

            9.    The testimony        of   Trooper    Demarche    was
                  credible.

            10.   Trooper Demarche failed to point to specific
                  and articulable facts that would warrant the
                  traffic stop.

Trial court opinion, 1/14/14 at 1-2.

      After appellant was stopped, Trooper Demarche detected a strong odor

of alcohol in appellant’s vehicle.      (Notes of testimony, 11/19/13 at 6.)



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Appellant had bloodshot eyes and slurred his speech. (Id.) Field sobriety

tests were conducted, and upon determining that appellant was under the

influence of alcohol, appellant was arrested.    (Id. at 7-8.)   Appellant was

taken to a hospital, a blood test was performed, and appellant’s blood

alcohol content was determined to be .187. (Id. at 8-9.)

        On November 13, 2012, appellant filed an omnibus pretrial motion

challenging the constitutionality of his vehicle stop and requesting the court

to suppress all evidence arising therefrom. On April 12, 2013, the motion to

suppress was denied.       On November 19, 2013, following a bench trial,

appellant was found guilty of driving under influence of alcohol or controlled

substance (general impairment), driving under influence of alcohol or

controlled substance (highest rate of alcohol), and driving on roadways

laned for traffic.2   On November 20, 2013, the court entered its order

sentencing appellant to 23 months’ intermediate punishment with the first

180 days on house arrest, plus various fines, fees, and costs. This timely

appeal followed. Appellant raises the following issues on appeal:

              I.    Whether the suppression court erred when it
                    held that probable cause and/or reasonable
                    suspicion existed to warrant a traffic stop of
                    the Appellant's vehicle for a violation of
                    75 Pa.C.S. § 3309(1)?

              II.   Whether the testimony offered by Trooper
                    Demarche at the Omnibus Pretrial Motion
                    hearing is supported by the objective evidence


2
    75 Pa.C.S.A. §§ 3802(a)(1); 3802(c); and 3309(1), respectively.


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                   presented on the DVD of the dashboard video
                   that recorded the entire incident in question?

Appellant’s brief at 5.

      We find merit in appellant’s first issue; consequently we need not

address appellant’s second issue. We begin our analysis with our standard

of review:

             The standards governing a review of an order
             denying suppression motion are well settled:

                   We are limited to determining whether
                   the lower court's factual 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 the 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. Landis, 89 A.3d 694, 702 (Pa.Super. 2014), quoting

Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super. 2010)

(en banc) (citation omitted), appeal denied, 25 A.3d 327 (Pa. 2011).

      We must first determine whether the police needed reasonable

suspicion or probable cause to support the vehicle stop that occurred

instantly.   In Feczko, this court examined the interplay of 75 Pa.C.S.A.

§ 6308(b), which provides the authority for a police officer to engage in a

vehicle stop, and which requires only reasonable suspicion of a Vehicle Code


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violation to justify a stop, and constitutional concerns requiring probable

cause. The Feczko court ultimately concluded:

                     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.”

Feczko, 10 A.3d at 1291.

        Thus, where a police officer observes a driver briefly cross into another

traffic lane, if the officer stops the motorist for a violation of 75 Pa.C.S.A.

§ 3309(1), driving on roadways laned for traffic, the officer must have

probable cause because the stop is being effected for the observed offense

and not for the purpose of further investigation.              However, if upon

observance of the same behavior the officer stops the driver on suspicion of

a violation of 75 Pa.C.S.A. § 3802, driving under the influence of alcohol or

controlled substance, the officer needs only reasonable suspicion because

the purpose of the stop is for further investigation.            Under Feczko,

reasonable     suspicion   will   support   only   a   Terry   stop   for   further

investigation;3 but where no further investigation is needed, the stop may be

justified only by probable cause.




3
    Terry v. Ohio, 392 U.S. 1 (1968).


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      At the suppression hearing and at trial, Officer Demarche testified but

did not articulate for which particular violation of the Vehicle Code he

decided to stop appellant. He described appellant as crossing the fog line

along the side of the road five times over a distance of two to three miles.

However, Officer Demarche did not testify that he suspected at that time

that appellant was driving under the influence of alcohol.     Thus, it does

appear Officer Demarche was stopping appellant for a violation of driving on

roadways laned for traffic, which violation required no further investigation

and for which the officer would thus need probable cause under Feczko.4

      Under the facts of this case, we find that Trooper Demarche was

without probable cause to stop appellant’s vehicle.      We are guided by

Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001),5 which exhibited a

similar fact pattern:

                  On July 21, 1998, in the early morning hours,
            Officer Guy Rosato of the Westtown East Goshen
            Police Department was on patrol traveling westbound
            on the West Chester Pike, a/k/a Route 3, in East

4
  We note that the trial court determined that a reasonable suspicion
standard applied here. (Trial court opinion, 1/14/14 at 2-3.) We also note
that even employing that more relaxed standard, the trial court still found
that the police here presented insufficient specific and articulable facts to
justify the stop.
5
  We observe that subsequent case law has noted that the probable cause
standard employed by the Gleason court was subsequently superseded by
75 Pa.C.S.A. § 6308(b), which required only reasonable suspicion.
Commonwealth v. Smith, 917 A.2d 848, 850 (Pa.Super. 2007). As our
prior discussion indicated, however, case law subsequent to Smith, such as
Feczko, re-imposes the probable cause standard under the circumstances
appertaining herein.


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            Goshen Township. The West Chester Pike is a four
            lane divided highway. Officer Rosato noticed a gray
            Mazda approximately eight to ten car lengths in front
            of him. He followed the vehicle and observed it
            cross the solid fog line on two or three occasions
            over a distance of approximately one quarter mile.
            During the period that Officer Rosato was following
            the vehicle, there were no other vehicles on the
            roadway. Nevertheless, Officer Rosato decided to
            investigate as to the reason for this behavior.

                  Upon stopping Appellant, Officer Rosato
            observed signs of intoxication and performed field
            sobriety tests, which Appellant failed. Appellant was
            placed under arrest and refused to submit to blood
            alcohol testing.     Officer Rosato then searched
            Appellant and his vehicle and recovered, among
            other things, a suspended driver's license, an
            uncapped syringe, and a small amount of cocaine.
            Appellant was charged with driving under the
            influence of alcohol, driving with a suspended
            license, careless driving, possession of a controlled
            substance, and possession of drug paraphernalia.

Id. at 985. The supreme court held that the vehicle stop was improper and

quoted the language of the trial court:

            Given the early morning hour, the fact that there
            was no other traffic on the roadway and the rather
            momentary nature of defendant's vehicle crossing
            the fog line on two perhaps three occasions, the
            officer erred in believing he had justification to stop
            defendant's vehicle. The observations of Office [sic]
            Rosato do not warrant a stop on any cognizable legal
            theory.

Id. at 985-986.

      Indeed, if we examine the language of the statute at issue it is difficult

to see a violation here:




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            Whenever any roadway has been divided into two or
            more clearly marked lanes for traffic the following
            rules in addition to all others not inconsistent
            therewith shall apply:

                  (1)     Driving within single lane.--A
                          vehicle shall be driven as nearly as
                          practicable entirely within a single
                          lane and shall not be moved from
                          the lane until the driver has first
                          ascertained that the movement can
                          be made with safety.

75 Pa.C.S.A. § 3309(1). Appellant’s brief crossing of the fog line five times

over a distance of two to three miles in the early morning hours with no

other traffic on the road is certainly within the safety deviation permitted by

the statute.   We see no violation of the statute and no probable cause to

stop appellant’s vehicle.   Consequently, we are constrained to reverse the

ruling of the suppression court and vacate the judgment of sentence.

      Order reversed. Judgment of sentence vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014




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