J-S47037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CLAIR EDWIN BARRY, III                     :      No. 1948 MDA 2018

                Appeal from the Order Entered October 30, 2018
                 in the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0000637-2018

BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 29, 2019

       The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to Suppress filed by Clair Edwin Barry, III (“Barry”), in this driving

under the influence of alcohol (“DUI”) case.1 We affirm.

       In its Opinion and Order, the suppression court set forth the relevant

factual and procedural history as follows:

       On December 30, 2017[,] at approximately 10:50 p.m., … Barry
       and Trooper [Christopher] Pifer [(“Trooper Pifer”)] of the
       Pennsylvania State Police were both traveling on [State Route]
       144 in Bellefonte, Pennsylvania. There was snow on the ground
       from a recent snowfall. [Barry] was driving a pick-up truck. As
       the vehicles approached one another[,] headed in opposite
____________________________________________


1 The Commonwealth complied with Pa.R.A.P. 311(d), which provides that
“[i]n a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”
Pa.R.A.P. 311(d); Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa.
Super. 2017).
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     directions of travel, Trooper Pifer observed [Barry’s] truck cross
     the white fog line [by] approximately half [of] the truck[’s] width.
     Observing this transgression, Trooper Pifer turned around to
     follow [Barry’s] vehicle. As he followed [Barry], Trooper Pifer
     observed [Barry] make a sharp turn onto North Allegheny Street
     from [State Route] 144, taking the turn wide and crossing the
     double yellow center line with his left tire as he did so. Trooper
     Pifer testified that the turn onto Allegheny Street is a very sharp
     turn, and one he does not often see drivers take. Nevertheless,
     he believed it is possible to stay fully within the appropriate lane
     of travel while making the turn. Trooper Pifer acknowledged that
     he also took the turn wide, crossing the center line, as he followed
     [Barry] on the evening of December 30, indicating that his
     attention was focused on following [Barry’s] vehicle. There were
     no other vehicles in or around the intersection at that time.

           Shortly after turning onto North Allegheny Street, Trooper
     Pifer observed [Barry’s] vehicle again cross the double yellow
     center line. Trooper Pifer testified that, on this occasion, [Barry’s]
     vehicle crossed over the line by a few inches. He estimated that
     this occurred 50 to 100 feet from the curve up ahead in the road.
     There was no other traffic on the roadway at the time, nor were
     there pedestrians in the vicinity. The roadway shoulder in that
     area is relatively narrow.

           After seeing [Barry] cross the center line a second time,
     Trooper Pifer conducted a traffic stop. Further investigation based
     on the events unfolding during the stop lead [sic] to [Barry’s]
     arrest for [DUI].

Opinion and Order, 10/30/18, at 1-2.

     On June 19, 2018, Barry filed a Motion to Suppress, asserting that

Trooper Pifer lacked probable cause to perform a vehicle stop.                The

suppression court conducted a suppression hearing on August 31, 2018,

wherein Trooper Pifer testified. By an Opinion and Order entered on October

30, 2018, the suppression court granted Barry’s Motion to Suppress.           The

suppression court concluded that Trooper Pifer lacked probable cause to stop


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Barry’s vehicle based on Barry’s momentary breaches of the center and fog

lines on the road. See id. at 3-5.

        The Commonwealth filed a Motion for Reconsideration on November 2,

2018,     arguing   that   the   suppression   court   relied   on   an   inaccurate

representation of the law. On November 28, 2018, before the suppression

court ruled on the Motion for Reconsideration, the Commonwealth filed a

timely Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of errors complained of on appeal.

        The Commonwealth now presents the following claim for our review:

“Whether the suppression court erred in concluding [that] Trooper Pifer did

not have probable cause to stop [Barry’s] vehicle for a violation of 75 Pa.C.S.A.

§ 3309(1)?” Commonwealth’s Brief at 7.

        We are mindful of the following standard of review:

        When the Commonwealth appeals from a suppression order, we
        follow a clearly defined standard of review and consider only the
        evidence from the defendant’s witnesses together with the
        evidence of the prosecution that, when read in the context of the
        entire record, remains uncontradicted. The suppression court’s
        findings of fact bind an appellate court if the record supports those
        findings. The suppression court’s conclusions of law, however, are
        not binding on an appellate court, whose duty is to determine if
        the suppression court properly applied the law to the facts.

Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016) (citation

omitted).

        Trooper Pifer conducted a traffic stop based on a suspected violation of

75 Pa.C.S.A. § 3309(1), which provides as follows:


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      § 3309. Driving on roadways laned for traffic

      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).

      In order to conduct a traffic stop based on an observed violation of

section 3309(1), a police offer must have probable cause. Commonwealth

v.   Cephus,    208   A.3d   1096,   1099    (Pa.   Super.   2019);    see     also

Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa. Super. 2015)

(explaining that “[i]f 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.” (citation 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.

Id. at 824 (citation and quotation marks omitted). But see Cephus, 208

A.3d at 1097 (acknowledging confusion and inconsistency in this Court’s

decisions analyzing the validity of stops based on violations of section

3309(1)).




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      The suppression court concluded that Trooper Pifer lacked probable

cause to stop Barry’s vehicle for a violation of section 3309(1), stating as

follows:

      [T]he Commonwealth asserts Trooper Pifer had probable cause to
      believe [Barry] violated section 3309(1) based on three separate
      incidents. The first incident involved [Barry] crossing the fog line
      while approaching Trooper Pifer on State Route 144.              The
      testimony established that [Barry] straddled the fog line for a brief
      period, and that there were no other vehicles on the road at the
      time. Furthermore, there was no indication that the movement of
      [Barry’s] vehicle was erratic. In this instance, probable cause to
      believe [Barry] violated section 3309(1) did not exist because
      there was no evidence that [Barry] created a safety hazard in
      briefly crossing over the fog line. In the second incident, Trooper
      Pifer observed [Barry’s] vehicle cross over the center line, out of
      its lane of travel, as [Barry] made a very sharp[,] right-hand turn
      onto North Allegheny Street. Trooper Pifer testified that he, too,
      was outside the lane of travel as he made the same turn while
      following [Barry]. Again, the evidence reflected there was no
      traffic in the opposing lane of travel, and there was no indication
      of any sudden or erratic movement by [Barry’s] vehicle. As with
      the first transgression, the [c]ourt finds probable cause to believe
      a violation of 3309(1) is lacking[,] because there was no evidence
      that [Barry’s] conduct created a safety hazard.

             With regard to the third alleged violation, Trooper Pifer
      testified that [Barry] very briefly crossed the double yellow lines
      by a few inches[,] with the left-side tires with traveling on North
      Allegheny Street. There was no vehicular or pedestrian traffic in
      the vicinity, and [Barry’s] vehicle did not obstruct the opposing
      lane of travel. Although the Commonwealth points to the fact that
      [Barry] was approaching a hill and a blind curve in the roadway
      ahead, it does not appear from the evidence, including the video
      camera evidence presented at the hearing, that these features
      were so close to the spot [Barry] momentarily breached the center
      line so as to create a safety hazard in doing so. Accordingly, as
      with the first two incidents, the [c]ourt determines probable cause
      was not present based on this third incident.

            In sum, looking to each of the incidents allegedly giving rise
      to probable cause for the stop, … the [c]ourt concludes [that]

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       Trooper Pifer lacked probable cause to stop [Barry’s] vehicle for a
       violation of section 3309(1).

Opinion and Order, 10/30/18, at 4-5 (internal citations omitted).

       We have reviewed the transcripts of the suppression hearing, as well as

the dash camera recording, which was admitted into evidence during the

hearing.2    Initially, the dash camera recording does not include footage of

Barry’s first alleged violation, which prompted Trooper Pifer to make a U-turn

and follow Barry’s vehicle. See N.T., 8/31/18, at 13. Trooper Pifer testified

that as he passed Barry’s vehicle on State Route 144, he observed the vehicle

straddle the white fog line. See id. at 7. According to Trooper Pifer, Barry’s

vehicle remained over the fog line for “a short period of time,” before returning

to the lane of travel. Id. at 17-18; see also id. at 18 (agreeing that the

duration of the violation was less than a couple of seconds).

       Regarding the second alleged violation, our review confirms that

although Barry crossed the center line while making a sharp right turn onto

North Allegheny Street, he returned to his lane of travel after completing the

turn. See id. at 8-9 (wherein Trooper Pifer testified that Barry made a wide

right turn, crossing the double yellow line into the other lane of traffic).

However, nothing in the record indicates that his movement created a safety

risk for himself or others, and Trooper Pifer himself left his lane of travel while

making the turn. See id. at 9, 22 (wherein Trooper Pifer acknowledged that
____________________________________________


2Trooper Pifer testified that the dash camera automatically starts recording
when the patrol car’s emergency lights are activated, and includes
approximately 40-45 seconds of footage prior to activation. See N.T.,
8/31/18, at 12.

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he left his lane of travel while making the turn behind Barry’s vehicle), 23

(wherein Trooper Pifer agreed that the turn would be difficult to navigate in a

larger vehicle); see also id. at 23 (wherein Trooper Pifer testified that there

were no vehicles, pedestrians or cyclists in the opposing lane of travel when

Barry made the turn); Commonwealth v. Cook, 865 A.2d 869, 874 (Pa.

Super. 2004) (stating that “[w]hether an officer possesses probable cause to

stop a vehicle for a violation of [] section [3309(1)] depends largely upon []

whether a driver’s movement from his lane is done safely.”).

        Additionally, regarding the third alleged violation, our review confirms

that Barry’s left tires crossed the center line on North Allegheny Street prior

to reaching a turn in the road. See N.T. 8/31/18, at 8-9 (wherein Trooper

Pifer testified that Barry’s tires crossed the center line “in close proximity to

the turn”), 25 (stating that Barry was approximately 50 to 100 feet away from

the curve when he crossed the center line). However, like the other alleged

violations, there is no indication in the record that Barry created a safety risk.

See id. at 25 (wherein Trooper Pifer acknowledged that there were no

vehicles, pedestrians or cyclists in the opposing lane of travel); see also

Cook, supra.

        Based upon the foregoing, we conclude that the trial court’s findings are

supported by the record, and its conclusions are sound. See Korn, supra.

Here,    Barry   crossed   the   fog   and    center   lines   only   briefly.   See

Commonwealth v. Enick, 70 A.3d 843, 847 (Pa. Super. 2013) (stating that

the statutory language of section 3309(1), which requires motorists to

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maintain a single lane “as nearly as practicable,” “does not foreclose minor

deviations.”). Additionally, the record confirms that Barry’s actions did not

pose a safety risk to other motorists, and nothing in the record suggests that

he was otherwise driving erratically.   See Cook, supra; cf. id. at 374-75

(concluding that officer had probable cause to stop defendant for a violation

of section 3309(1), where an officer observed defendant “drive over the right

fog line to the extent of half the vehicle width, three times, and then rapidly

jerk back into his lane of travel[,]” over the distance of one mile, and another

officer had previously observed defendant driving erratically); Cephus, 208

A.3d at 1099-1100 (concluding that, where officer observed defendant’s

vehicle at least once before activating his dash camera, and the camera

showed defendant’s vehicle “drift over the center line three times in a twenty-

five second period” and remain consistently over the line, probable cause

existed to stop defendant for a section 3309(1) violation).

      Based upon the foregoing, we conclude that the suppression court

properly concluded that Trooper Pifer lacked probable cause to stop Barry’s

vehicle for a violation of section 3309(1).    We therefore affirm the Order

granting Barry’s Motion to Suppress.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




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