J-S22044-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     Appellee             :
                                          :
                     v.                   :
                                          :
SEAN DAVID O’CONNER,                      :
                                          :
                      Appellant           :    No. 1148 MDA 2015

              Appeal from the Judgment of Sentence June 18, 2015
                in the Court of Common Pleas of Adams County,
              Criminal Division, at No(s): CP-01-CR-0000828-2014

BEFORE:       MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 11, 2016

      Sean David O’Conner (Appellant) appeals from the judgment of

sentence imposed following his conviction for driving under the influence of

alcohol (DUI). We affirm.

      The trial court summarized the relevant factual history of this matter

as follows.

            In the early morning hours of June 28, 2014, Trooper
      Lasher, of the Pennsylvania State Police, was on patrol in full
      uniform and driving a marked police vehicle. Trooper Lasher was
      on duty with Trooper Eric Stuby. Trooper Stuby was operating
      the patrol vehicle and Trooper Lasher was riding in the front
      passenger seat. At approximately 1:25 a.m. the Troopers were
      riding on State Route 97 traveling northbound. Beginning a
      couple miles prior to the interchange of State Route 97 and
      State Route 15 the Troopers were following a 1992 purple Jeep
      Cherokee. While following the Jeep Cherokee northbound on
      State Route 97, the Troopers observed the Jeep Cherokee
      weaving within its lane of travel, but did not observe any erratic
      driving or speeding by the operator of the Jeep Cherokee.



*Retired Senior Judge assigned to the Superior Court.
J-S22044-16


            Along the stretch of road, approximately two miles from
     where the Troopers began following the Jeep Cherokee, State
     Route 97 has one northbound lane and one southbound lane
     divided by a double yellow centerline. The State Route 97 road
     dynamics change upon approach to the interchange with State
     Route 15. State Route 15 is a four-lane highway which passes
     underneath State Route 97. In the area of the interchange State
     Route 97 northbound changes from one lane to, initially, three
     lanes, then two lanes before returning to a single northbound
     lane on the northern side of the interchange. Specifically, at the
     area of the interchange the lane which was northbound State
     Route 97 prior to the interchange becomes a left turning lane
     onto the onramp for State Route 15 southbound. The middle
     lane is a single lane proceeding straight through the interchange.
     The right hand lane is a third lane which is for right hand turns
     to proceed onto the onramp for State Route 15 northbound.
     Upon reaching the bridge over State Route 15 a vehicle
     intending to continue through the interchange and proceed
     northbound on State Route 97 is required to change from what
     was the northbound lane, and which becomes the left turn lane
     at the area of the interchange, into the center lane in order to
     continue straight on State Route 97 northbound. At the
     interchange there is a white turn arrow painted on what was the
     northbound lane to indicate that it has changed into a left turn
     lane onto State Route 15 southbound. There are also overhead
     signs indicating the purpose of each of the three different lanes.
     After crossing the bridge over State Route 15, at the area where
     the left turn lane onto State Route 15 ends and vehicles enter on
     State Route 97 from the State Route 15 southbound off ramp
     there are no markings on the road surface.

           As the Troopers followed the Jeep Cherokee, which
     maintained its course of travel in its original lane across the
     bridge, the Cherokee changed lanes moving one lane to the right
     in order to continue proceeding northbound on State Route 97
     when the left turn lane onto State Route 15 southbound ended.
     The operator of the 1992 purple Jeep Cherokee failed to signal
     the lane change prior to making his change of lanes. The
     Troopers did not immediately effectuate a traffic stop but rather
     continued following the Jeep Cherokee northbound on State
     Route 97 for approximately one and a half to two additional
     miles. During the additional distance traveled the Troopers
     observed the vehicle continuing to weave within its lane of travel



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        but never touching or crossing over the double yellow centerline
        or white fog line. After continuing to follow the vehicle for that
        one and half to two mile distance the Troopers effectuated a
        motor vehicle stop for the previously observed motor vehicle
        code violation, specifically failing to signal a lane change, in
        violation of Section 3334(a) of the Pennsylvania Motor Vehicle
        Code.

               Upon approaching the Jeep Cherokee, the Troopers
        identified the Appellant as the operator of that motor vehicle.
        Troopers informed Appellant the purpose of the stop was
        because the Troopers witnessed Appellant correcting his lane of
        travel at the 97/15 interchange without the use of a turn signal.
        During Trooper Lasher’s interaction with Appellant he observed
        signs of intoxication such as glassy and bloodshot eyes along
        with the odor of alcoholic beverages emanating from his breath.
        Trooper Lasher then asked Appellant to exit the vehicle and
        submit to field sobriety tests. Appellant was asked to perform
        the walk and turn test and the one-leg stand test[.] Appellant
        showed signs of intoxication during each. At which time, Trooper
        Lasher placed Appellant under arrest for suspicion for driving
        under the influence of alcohol and placed him in the back of the
        patrol unit. To save the Appellant a tow bill, the Troopers called
        Appellant’s mother and step-father to pick up the vehicle and
        pick him up from the hospital. It took [] Appellant’s parents
        approximately 25-30 minutes to arrive on scene. At that time
        the Troopers took [] Appellant to the hospital. The Troopers
        arrived with [] Appellant at the hospital at approximately 2:08 in
        the morning. Appellant was then read his DL-26, an implied
        consent warning, which Appellant then signed and dated.
        Trooper Lasher noted the time that the DL-26 was read and
        signed by Appellant was 2:12 a.m. Trooper Lasher again
        indicated on the DL-26 the time in which the blood was drawn,
        2:19 a.m. [The test revealed that Appellant had a blood alcohol
        concentration (BAC) of at least .10% but less than .16% within
        two hours after operating a motor vehicle.] Appellant was
        charged with [DUI - general impairment, DUI - high rate of
        alcohol], failure to keep right, disregard traffic lane (single),
        turning movements and required signals, [and] careless driving.

Trial   Court   Opinion,   8/21/2015,   at    1-3   (footnotes   and   unnecessary

capitalization omitted).



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      Appellant filed an omnibus pre-trial motion to suppress, which was

denied following a hearing on March 13, 2015. The matter proceeded to a

non-jury trial on April 8, 2015.     Prior to the beginning of trial, the court

granted the Commonwealth’s request to withdraw Count I, DUI - general

impairment and the summary motor vehicle offenses. The Commonwealth

proceeded to trial on Count 2, DUI - high rate of alcohol. At the conclusion

of trial, the court found Appellant guilty.

      Appellant’s conviction was his third DUI offense for sentencing

purposes.   Accordingly, on June 18, 2015, Appellant was sentenced to 60

months of intermediate punishment. Appellant timely filed a notice of

appeal.   Both Appellant and the trial court complied with the mandates of

Pa.R.A.P. 1925.

      On appeal, Appellant asks us to consider whether the trial court erred

“in finding that an investigatory stop based on admitted pretext did not

violate Appellant’s privacy guarantees under Article I, Section 8 of the

Pennsylvania Constitution.” Appellant’s Brief at 4.

      We address Appellant’s claim mindful of our standard of review.

      [An appellate court’s] standard of review in addressing a
      challenge to the denial of a suppression motion is limited to
      determining whether the suppression court’s factual findings are
      supported by the record and whether the legal conclusions
      drawn from those facts are correct. Because the Commonwealth
      prevailed before the suppression court, we may consider only
      the evidence of the Commonwealth and so much of the evidence
      for the defense as remains uncontradicted when read in the
      context of the record as a whole. Where the suppression court’s



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      factual findings are supported by the record, [the appellate court
      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where ... the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if
      the suppression court properly applied the law to the facts. Thus,
      the conclusions of law of the courts below are subject to [ ]
      plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)

(citation omitted).

      Appellant argues that the motor vehicle stop was pretextual and

contends that the Troopers used “a de minimus (and non-[investigable])

offense [to] stop [Appellant’s] vehicle for the purpose of furthering an

investigation into a more serious crime for which they [did] not have

probable cause.” Appellant’s Brief at 10 (emphasis in original). In support of

his argument, Appellant cites to a portion of the suppression hearing

transcript where, on cross-examination, Trooper Lasher agreed with defense

counsel that the “purpose of the stop was an investigatory stop for purposes

of determining whether [Appellant] was [DUI].” Id. at 30. Appellant

contends that the Trooper’s statement contradicts the stated reason for the

stop, violation of 75 Pa.C.S. § 3334, related to use of turn signals, and

demonstrates that the Trooper “used administrative authority as a pretext to

conduct further investigation into a possible DUI for which there was no

evidence.” Id. at 30-31.




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      We begin by examining the quantum of suspicion required to

effectuate a stop under section 3334. It is well-settled that a police officer

has the authority to stop a vehicle when he or she has reasonable suspicion

that a violation of the vehicle code has taken place, for the purpose of

obtaining necessary information to enforce the provisions of the code. 75

Pa.C.S. § 6308(b). However, if the violation is such that it requires no

additional investigation, the officer must have probable cause to initiate the

stop. Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010).

      Instantly, Trooper Lasher testified that he stopped Appellant for

“improper lane change and not using the turn signal” at the 97/15

interchange. N.T., 2/17/2015, at 8-9. As further investigation would not help

to establish whether Appellant committed the above offenses, Trooper

Lasher was required to have probable cause to initiate the stop.

      “The police have probable cause where the facts and circumstances

within the officer’s knowledge are sufficient to warrant a person of

reasonable caution in the belief that an offense has been or is being

committed. We evaluate probable cause by considering all relevant facts

under a totality of circumstances analysis.” Commonwealth v. Hernandez,

935 A.2d 1275, 1284 (Pa. 2007) (quotation and citations omitted).

The statute governing use of signals provides in pertinent part as follows.

      § 3334. Turning movements and required signals




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      (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.

      (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. The signal shall also be given prior
      to entry of the vehicle into the traffic stream from a parked
      position.

75 Pa.C.S. § 3334.

      Trooper Lasher directly observed Appellant’s failure to use a turn

signal during a lane change; accordingly, he possessed facts that would lead

a reasonable person to conclude that a violation of the motor vehicle code

had occurred and was justified in effectuating the stop. Hernandez, 935

A.2d at 1284. Thus, the trial court did not err in denying Appellant’s motion

to suppress.

      Moreover,    contrary   to   Appellant’s   argument,   the   Pennsylvania

constitution does not prevent the police from “stopping and questioning

motorists when they witness or suspect a violation of traffic laws, even if it is

a minor offense.” Commonwealth v. Chase, 960 A.2d 108, 113 (Pa.

2008). Having determined that the Troopers had probable cause to stop

Appellant’s vehicle, the fact that he was later determined to be DUI is

immaterial to the constitutionality of the initial stop. Additionally, Trooper



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Lasher’s belief that Appellant was DUI did not somehow prevent the Trooper

from stopping Appellant where he had probable cause to do so based on an

observed violation of the motor vehicle code.1 Accordingly, we reject

Appellant’s argument that the stop was invalid as pretextual.2

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/11/2016




1
  Appellant’s failure to use a turn signal, coupled with the time of night and
his repeated weaving in his lane of travel, provided the Troopers with
reasonable suspicion that Appellant was DUI. Accordingly, the Troopers
would have been justified in pulling Appellant over to investigate further.
See Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)
(upholding a traffic stop for DUI based on reasonable suspicion where the
trooper “testified that the basis for the traffic stop was because [Feczko] was
‘weaving within his lane and also crossed out of his lane of travel on
numerous occasions.’”).
2
  Additionally, we find unavailing Appellant’s reliance on Commonwealth v.
Lehman, 857 A.2d 686 (Pa. Super. 2004).                   Lehman is readily
distinguishable from the case at bar as it involved a stop predicated on a tip
from an unknown third party, not a direct observation of a motor vehicle
code violation by a law enforcement officer.


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