J-S07006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

KEVIN MICHAEL MOTTER,

                         Appellant                    No. 1101 MDA 2014


       Appeal from the Judgment of Sentence Entered June 25, 2014
            In the Court of Common Pleas of Lebanon County
           Criminal Division at No(s): CP-38-CR-0000780-2013


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 20, 2015

      Appellant, Kevin Michael Motter, appeals from the judgment of

sentence of 30 days’ incarceration, followed by 60 days’ house arrest,

imposed after he was convicted of driving under the influence of alcohol

(DUI) and the summary offense of careless driving. Appellant challenges the

trial court’s denial of his pretrial motion to suppress. We affirm.

      On March 1, 2013, Pennsylvania State Trooper John Huffstutler

stopped Appellant’s vehicle for the summary offense of following too closely,

75 Pa.C.S. § 3310(a). When the trooper approached Appellant’s vehicle, he

smelled a strong odor of alcohol on Appellant’s breath, and observed that

Appellant’s eyes were bloodshot and glassy. See Trial Court Opinion (TCO),

8/15/14, at 4. After having Appellant perform several field sobriety tests,

Trooper Huffstutler placed him under arrest for suspicion of DUI.     Id.   A
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sample of Appellant’s blood was subsequently taken, confirming that he had

a blood alcohol content of .169 percent. Id.

       Based on these facts, Appellant was charged with DUI, as well as the

summary offenses of following too closely and careless driving. Prior to trial,

he filed a motion to suppress, arguing that Trooper Huffstutler did not

possess probable cause to stop Appellant’s vehicle for following too closely, a

violation of the Motor Vehicle Code (MVC).        A suppression hearing was

conducted on November 6, 2013, after which the trial court denied

Appellant’s motion to suppress. Appellant proceeded to a jury trial on April

7, 2014, and was convicted of DUI and careless driving. The jury acquitted

him of the charge of following too closely.      Appellant was subsequently

sentenced to a term of 30 days’ incarceration, followed by 60 days’ house

arrest.1

       Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.        Herein, he

raises two issues for our review:

       I. Did the suppression court err in denying Appellant’s motion to
       suppress evidence when the police officer failed to articulate
       specific facts that would provide that he had probable cause to
       believe Appellant was in violation of section 3310 of the [MVC]?



____________________________________________


1
  The trial court notes in its opinion that Appellant received a sentence of
incarceration because this was Appellant’s second DUI conviction. See TCO
at 5.



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      II. Did the police officer fail to articulate specific facts that would
      provide that he had probable cause to believe Appellant was in
      violation of section 3310 of the [MVC]?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      Initially, we note that Appellant’s two issues differ in only one regard.

In Appellant’s first claim, he alleges that Trooper Huffstatler’s suppression

hearing testimony was insufficient to demonstrate that the trooper had

probable cause to stop his vehicle. In Appellant’s second issue, he argues

that the trooper’s trial testimony was also insufficient to prove probable

cause. However, in reviewing the denial of a motion to suppress, we only

assess whether the court’s decision is supported by the evidence presented

at the suppression hearing. See In re L.J., 79 A.3d 1073, 1084 (Pa. 2013)

(concluding   that   the   language    of   Pa.R.Crim.P.   581   (governing     the

suppression of evidence) “strongly suggests that the record of the

suppression hearing is intended to be the complete record for suppression

issues, and those issues are to be finally determined before trial, not during

trial or after trial”). Consequently, we will not consider Appellant’s argument

regarding Trooper Huffstatler’s trial testimony in assessing the court’s denial

of his pretrial motion to suppress.

      Our standard of review for denial of a suppression motion is as follows:

      In reviewing an order from a suppression court, we consider the
      Commonwealth’s evidence, and only so much of the defendant’s
      evidence as remains uncontradicted. We accept the suppression
      court’s factual findings which are supported by the evidence and
      reverse only when the court draws erroneous conclusions from
      those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

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      We begin our assessment of the suppression court’s decision by noting

that it properly concluded that Trooper Huffstatler was required to possess

probable cause to justify the stop of Appellant’s vehicle for a violation of 75

Pa.C.S. § 3310(a), as the stop did not “serve a stated investigatory

purpose.”   Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.

2010). In Feczko, this Court held that “[m]ere 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 [MVC].”       Id. at 1291 (citations, internal quotation

marks, and emphasis omitted).

      Appellant   contends   that   Trooper   Huffstatler   failed   to   articulate

sufficient facts to prove that he had probable cause that Appellant’s vehicle

was following too closely in violation of section 3310(a) of the MVC. That

statute states:

      (a) General rule.--The driver of a motor vehicle shall not follow
      another vehicle more closely than is reasonable and prudent,
      having due regard for the speed of the vehicles and the traffic
      upon and the condition of the highway.

75 Pa.C.S. § 3310(a).     Appellant primarily avers that Trooper Huffstatler

failed to proffer any testimony regarding the speed at which the vehicles

were traveling. He maintains that “[w]ithout any evidence of speed, there


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can be no probable cause to stop Appellant’s vehicle.” Appellant’s Brief at

15. In support, Appellant relies on this Court’s decision in Commonwealth

v. Phinn, 761 A.2d 176 (Pa. Super. 2000). There, we found that an officer’s

observation of the defendant’s vehicle “traveling less than a motorcycle-

length distance behind a tractor-trailer on Interstate 80 where the vehicles’

respective rates of speed were at or near the speed limit for that highway[,]”

was sufficient to justify the stop of the defendant’s vehicle for a violation of

section 3310(a). Id. at 180 (emphasis added).

      While in Phinn, we considered the officer’s testimony regarding the

speed of the defendant’s vehicle in assessing the legality of the stop, we did

not hold that there must be evidence regarding speed in order to prove that

a stop under section 3310(a) is valid. In any event, Trooper Huffstatler did

offer testimony regarding Appellant’s speed. At the suppression hearing, he

stated that he observed Appellant’s vehicle “pull[] out from a stop sign while

accelerating at an unreasonably high rate of speed….” N.T., 11/6/13, at 4

(emphasis added). Trooper Huffstatler went on to state:

      [Trooper Huffstatler:] [Appellant’s] vehicle then continued to
      travel east onto Market Street in the borough of Jonestown,
      approached the rear of another vehicle traveling the same
      direction ahead of [Appellant’s] vehicle, and then began to follow
      that vehicle at the intersection of Mulberry Street and Market
      Street at a distance not reasonable. Based on the speeds of
      these vehicles and the roadway conditions, it is an urban area, if
      there had been an application of the brakes by the lead driver
      for any reason, abruptly or otherwise, it would have caused
      [Appellant’s] vehicle to essentially rear-end the lead vehicle.




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Id. at 5 (emphasis added).       The trooper later elaborated that Appellant’s

vehicle was within five feet of the vehicle in front of him. Id. at 5-6. He

also added that Appellant’s vehicle was traveling in this manner at

approximately 4:30 p.m. on a weekday.           Id. at 4.    When asked why he

ultimately decided to stop Appellant’s vehicle, the trooper stated: “Based on

[] what I observed, the speed [at] which the vehicles were traveling, I

immediately observed that it wasn’t reasonable[,] that the distance would

have constituted a hazard so I did initiate a traffic stop.” Id. at 7 (emphasis

added).

      In sum, Trooper Hoffstatler’s testimony indicated that he considered

Appellant’s speed in assessing whether Appellant was following the lead car

“more closely than is reasonable and prudent….” 75 Pa.C.S. § 3310(a). The

trooper ultimately determined that, based on the speed at which Appellant’s

vehicle and the lead car were traveling, the distance between them was

unreasonable and hazardous, as Appellant’s vehicle would have collided with

the lead vehicle had that car applied its brakes.           We conclude that this

“evidence clearly bespeaks a hazard within the contemplation of [s]ection

3310.”    Phinn, 761 A.2d at 180.        Therefore, the record supports the

suppression   court’s   legal   determination   that   Trooper    Huffstatler   had

probable cause to stop Appellant’s vehicle for a violation of section 3310(a).




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Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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