J-S50014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellant

                      v.

VITALIJ KUPRIJ
                                                      No. 2100 MDA 2015


               Appeal from the Order Entered November 2, 2015
        in the Court of Common Pleas of Berks County Criminal Division
                       at No(s): CP-06-CR-0003110-2015

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2016

        The Commonwealth appeals from the order entered in the Berks

County Court of Common Pleas granting Appellee Vitalij Kuprij’s motion for

suppression of evidence and motion for writ of habeas corpus.             The

Commonwealth contends that Appellee’s erratic driving created reasonable

suspicion and/or probable cause to believe that he might be driving while

under the influence. We affirm.

        We glean the facts from the omnibus pretrial hearing.        Trooper

Thomas Moran testified for the Commonwealth. R.R. at 27a.1 On March 22,




*
    Former Justice specially assigned to the Superior Court.
1
  For the parties’ convenience, we refer to the reproduced record where
applicable.
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2015, at approximately 2:28 a.m., he was patrolling State Route 12 in Berks

County. Id.

        [The Commonwealth]: And did you notice anything that
        brings you to court today?

         A: I observed a silver-colored Celica traveling westbound
        in front of me weaving in the lane of travel.

        Q: When you say weaving - - -

        A: It was traveling in the right lane. It was moving from
        right to left. It caught my eye. As I continued to follow
        the vehicle, the driver’s side tires crossed over to the left
        over the broken center line. And as we continued to travel
        further west past the exit for 183, the passenger side tires
        crossed over and touched the white fog line. And as we
        continued onto 222 South and it’s 422 west, he was in the
        center lane, and the vehicle moved from the─drifted to the
        left. The driver’s side tires crossed over into the left lane.
        And as it crossed over, it straddled the line. That is when
        he activated his turn signal. That is when I decided I
        had enough probable cause from the turn signal
        violation to initiate a traffic stop.

        Q: Now, the vehicle you were driving in that evening, is it
        equipped with a camera?[2]

        A: Yes, ma’am.

        Q: And was the camera on and operable on that evening?

2
  A video recording from the camera was attached to Appellant’s brief. See
Commonwealth’s Brief at App. C. We note that it was not in the certified
record on appeal.    “While this Court generally may only consider facts that
have been duly certified in the record, where the accuracy of a document is
undisputed and contained in the reproduced record, we may consider it.”
Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super.) (citation
omitted), appeal denied, 128 A.3d 1204 (Pa. 2015). Appellee does not
dispute its accuracy. See Appellee’s Brief at 10. Therefore, we viewed the
recording. See Barnett, 121 A.3d at 545 n.3.




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        A: Yes, ma’am. There was an issue in the beginning of the
        video. You will see where the camera came off the mount
        off the windshield, and you will see in the beginning I’m
        putting it back on the window, back up on the windshield.
        Q: Does it remain on your windshield the entire time?

        A: When I put it in park for the traffic stop, it came off
        again. And at that point, because of officer’s safety, there
        were two people in the vehicle that I could see, I just left it
        hanging where it was.

        Q: But does the camera capture the driver, which you had
        observed?

        A: Yes, ma’am.

        Q: And did you provide a copy of that camera─footage to
        the Commonwealth?

        A: Yes, ma’am.

                                 *    *    *

        Q: Do you have any experience with the detection of
        impaired drivers?

        A: Yes, ma’am.

        Q: And when you observed the driving, you said
        there was also a turn signal violation?

        A: Yes, ma’am. When he moved from the center lane to
        the left lane, he already started his movement.  He
        already started a lane change when he tuned his left
        turn signal on for a brief moment, but he was
        already changing lanes, which is a violation of the
        Pennsylvania Vehicle Code.

Id. at 27a-28a (emphases added).

     Counsel for Appellant cross-examined Trooper Moran. Id. at 28a.




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       [Defense Counsel]: Trooper Moran, would you agree with
       me that the video that’s been presented to the Judge
       is the entirety of what you’re relying on your
       justification to stop this vehicle?

       A: Yes.
                                *        *       *

       Q: . . . The turn that you’re talking about the─this is a
       lane change you’re talking about?

       A: Yes.

       Q: The vehicle never turned off Route 12 when you were
       following it?

       A: No.

       Q: So we’re talking about a lane change?

       A: Route 12 goes straight into 222.           It turns into 222
       southbound, 422 westbound.

       Q: The vehicle you were following never exited the
       roadway when you were following it?

       A: No.

                                *       *        *

       Q: You would agree with me, would you not, that the video
       segment you’re talking about when you are saying a bad
       lane turn takes place over two─approximately two seconds
       where the vehicle moves briefly in the direction it’s
       changing and puts their turn signal on?

       A: Yes.

                            *       *        *

       Q: Trooper, you indicated you were on some kind of
       routine patrol that night. Isn’t it a fact that you were on a
       special detail looking for DUI’s, a DUI detail, weren’t you?



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           A: Yes.

           Q: And you would agree with me once the video falls off
           the mount shortly before the traffic stop that you did not
           observe any conduct that brings us here as the basis for
           your traffic stop, is that true?

           A: After?

           Q: After the video fell down?

           A: No.

           Q: So we can’t─we can’t assume there is anything else
           that you saw?

           A: As far as why I made the traffic stop?

           Q: Yes.

           A: No.

Id. at 28a-29a.

        Appellee was charged with driving under the influence (“DUI”), general

impairment incapable of driving safely,3 DUI, highest rate of alcohol,4

disregard    traffic   lane,5   turning    movements     and   required   signals,6

and careless driving.7 Appellee filed an omnibus pretrial motion to suppress.

Following a hearing, the motion was granted.           The Commonwealth filed a

3
    75 Pa.C.S. § 3802(a)(1).
4
    75 Pa.C.S. § 3802(c).
5
    75 Pa.C.S. § 3309(1).
6
    75 Pa.C.S. § 3334(a).
7
    75 Pa.C.S. § 3714(a).




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notice of appeal to this Court, certifying that the ruling terminated or

substantially handicapped the prosecution of this case.8 The Commonwealth

filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal and

the trial court filed a responsive opinion.9

      The Commonwealth raises the following issues for our review:

         A. Did Trooper Moran have reasonable suspicion and/or
         probable cause to believe that [Appellee] violated two
         separate provisions of the motor vehicle code?

         B. Did the trial court err in granting the request for a writ
         of habeas corpus without permitting the Commonwealth to
         appeal from the adverse suppression ruling?

Commonwealth’s Brief at 4.

      The Commonwealth contends that




8
 In Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002), this
Court noted

         that the Commonwealth has an absolute right of appeal to
         the Superior Court to test the validity of a pre-trial
         suppression order. Such an appeal is proper as an appeal
         from a final order when the Commonwealth certifies in
         good faith that the suppression order terminates or
         substantially handicaps its prosecution.

Id. at 1018 (quotation marks and citations omitted). Instantly, the
Commonwealth has complied with this procedural requirement, and
therefore the appeal is properly before us. See id.
9
  We note that Appellee sent this Court a post submission communication
containing a copy of Commonwealth v. Slattery, ___ A.3d ___, 2016 WL
2848689 (Pa. Super. May 13, 2016). The Commonwealth objected, in a
post submission communication, contending that the copy of the opinion
constituted additional argument. We find no merit to this claim.



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           [b]ased upon this record, Trooper Moran had the requisite
           reasonable suspicion and/or probable cause to conduct the
           traffic stop. Primarily, Trooper Moran was on a roving DUI
           patrol when he noticed the Celica that [Appellee] was [sic]
           weaving within its lane. The vehicle then traveled over the
           center line, over the fog line, and again over the center
           line before the traffic stop was initiated. While this might
           not rise to the level of probable cause to believe that
           [Appellee] violated 75 Pa.C.S.A. § 3309(1),[10] . . . this
           erratic driving does create sufficient reasonable suspicion
           to believe that [Appellee] might be driving while under the
           influence. Thus[,] Trooper Moran possessed the requisite
           reasonable suspicion to conduct a further investigation for
           driving while under the influence of alcohol or a controlled
           substance.

               In addition, Trooper Moran had the requisite probable
           cause to stop the Celica for the lane change violation. By
           its plain language, 75 Pa.C.S.A. §3334(a) and (b) require a
           vehicle to signal its intention to change lanes at least 100
           feet before actually changing lanes. However, Trooper
           Moran clearly saw [Appellee] in the Celica activate its turn
           signal after it started changing lanes by moving to the left
           and straddling the dashed white line, contrary to the
           requirements of the statute.

Commonwealth’s Brief at 11-12 (footnote and some citations omitted).



10
     Section 3309(1) provides:

           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. § 3309(1).




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      Our review is governed by the following principles:

           When reviewing an Order granting a motion to suppress
           we are required to determine whether the record supports
           the suppression court’s factual findings and whether the
           legal conclusions drawn by the suppression court from
           those findings are accurate. In conducting our review, we
           may only examine the evidence introduced by appellee
           along with any evidence introduced by the Commonwealth
           which remains uncontradicted. Our scope of review over
           the suppression court’s factual findings is limited in that if
           these findings are supported by the record we are bound
           by them. Our scope of review over the suppression court’s
           legal conclusions, however, is plenary.

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(citation omitted).

      The Motor Vehicle Code provides:

           (b) Authority of police officer.─Whenever a police
           officer is engaged in a systematic program of checking
           vehicles or drivers or has reasonable suspicion that a
           violation of this title is occurring or has occurred, he may
           stop a vehicle, upon request or signal, for the purpose of
           checking the vehicle’s registration, proof of financial
           responsibility, vehicle identification number or engine
           number or the driver’'s license, or to secure such other
           information as the officer may reasonably believe to be
           necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b). Sections 3334(a) and (b) of the motor vehicle code

provide:

           (a) General rule.─Upon a roadway no person shall turn a
           vehicle or move from one traffic lane to another or enter
           the traffic stream from a parked position unless and until
           the movement can be made with reasonable safety nor
           without giving an appropriate signal in the manner
           provided in this section.




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        (b) Signals on turning and starting.─At speeds of less
        than 35 miles per hour, an appropriate signal of intention
        to turn right or left shall be given continuously during not
        less than the last 100 feet traveled by the vehicle before
        turning. The signal shall be given during not less than the
        last 300 feet at speeds in excess of 35 miles per hour.

75 Pa.C.S. § 3334(a), (b).

     In Slattery, this Court opined:

            Instantly, we agree with both [the defendant] and the
        trial judge that [the trooper] did not have probable cause
        to stop the Durango on the basis that he believed [the
        defendant] had violated section 3334 of the vehicle code.
        Here, the trooper testified that he stopped [the
        defendant’s] Durango because he did not signal at least
        100 feet prior to changing lanes. . . . While section
        3334(a) provides that a person shall not move from a
        traffic lane to another or turn a vehicle without
        appropriately signaling of his or her attention to turn, if the
        given vehicle is travelling less than 35 m.p.h., the driver
        shall appropriately signal “continuously during not less
        than the last 100 feet traveled by the vehicle before
        turning.” 75 Pa.C.S. § 3334(b). Accordingly, the words
        of the statute are clear that the 100–foot rule
        applies to a vehicle turning, it is silent regarding the
        length that a signal must be activated prior to
        changing lanes.          Moreover, the language found
        throughout the remaining subsections of 3334 is consistent
        with the interpretation that the term “before turning”
        means before a vehicle makes a turn onto another
        roadway, not before a person changes lanes. See id.
        at § 3334(a) (“Upon a roadway no person shall turn a
        vehicle or move from one traffic lane to another . . .
        unless and until the movement can be made with
        reasonable safety nor without giving an appropriate signal
        in the manner provided in this section.”); id. at § 3334(d)
        (“Turn signals shall be discontinued immediately after
        completing the turn or movement from one traffic lane to
        another traffic lane.”). See 1 Pa.C.S.A. § 1921(b) (when
        terms of statute are clear and unambiguous, they are
        given effect consistent with plain and common meaning).



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Slattery, ___ A.3d at ___, 2016 WL 2848689 at *2 (some emphases

added).

      Instantly, the trial court opined:

             In review of the video evidence, [Appellee] did not do
          anything to give Trooper Moran probable cause for a
          vehicle stop. [Appellee] was not speeding, weaving, or
          braking erratically. [Appellee] actually used his turn signal
          indicators every time he changed lanes. . . . [Appellee]
          posed no safety hazard when his vehicle simply touched
          the white fog line. Therefore, at the time of the stop,
          Trooper Moran lacked specific articulable facts which would
          have provided reasonable suspicion to believe that
          [Appellee] was in violation of § 3309(1). Based on the
          totality of the circumstances, the [c]ourt finds that the
          Commonwealth has not met its burden in establishing
          sufficient reasonable suspicion for the vehicle stop.

Trial Ct. Op., 12/2/15, at 6.11 We agree no relief is due.

      In the case sub judice, Trooper Moran did not have reasonable

suspicion and/or probable cause from the turn signal violation to initiate a

traffic stop. See Slattery, ___ A.3d at ___, 2016 WL 2848689 at *2. The

statute is silent as to the length of time that a signal must be activated prior

to changing lanes. See id. We find no abuse of discretion or error of law by

the trial court. See Gutierrez, 36 A.3d at 1107. Accordingly, we affirm the

order of the trial court granting Appellee’s motion to suppress.12


11
   We note that our review of the video corroborates the facts set forth by
the trial court.
12
   Given our resolution of this issue, we need not address the second issue
raised on appeal.




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     Order affirmed.

     Judge Stabile joins the Memorandum.

     Judge Mundy notes her dissent.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2016




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