J-S94034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

JOHN D. NARDONE

                                                      No. 1199 MDA 2016


                  Appeal from the Order Entered June 3, 2016
      in the Court of Common Pleas of Wyoming County Criminal Division
                       at No(s): CP-66-CR-0000023-2015

BEFORE: LAZARUS, RANSOM, AND FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 30, 2017

        The Commonwealth appeals from the order entered in the Wyoming

County Court of Common Pleas granting Appellee John D. Nardone’s

omnibus pretrial motion to suppress based upon the lack of probable cause

to stop Appellee for Vehicle Code violations. The Commonwealth contends

that the police had probable cause to stop Appellee because they had

specific articulable facts that he violated the Vehicle Code. We affirm.

        The trial court summarized the facts and the procedural posture of this

case as follows:

              On August 2, 2014, when there were no adverse
           weather condition[s], at approximately 10:33 p.m.
           Tunkhannock Township Police Officers, Corey Sidorek and
           John Zdaniewicz . . . were on a routine patrol in a marked

*
    Former Justice specially assigned to the Superior Court.
J-S94034-16


         police cruiser traveling south on Pennsylvania Route 307
         from Tunkhannock Township through Overfield Township,
         Wyoming County, Pennsylvania. Route 307 is a two (2)
         lane roadway with a double yellow center line and a posted
         speed limit of forty (40) miles per hour.

            As the officers were approaching a left curve in the road
         with a posted maximum safe advisory speed of thirty (30)
         miles per hour, [Appellee] was travelling northbound.
         Officer Sidorek was travelling at a speed of approximately
         forty five (45) to fifty (50) miles per hour with his high
         beams activated. As Officer Sidorek’s cruiser approached
         [Appellee], Officer Sidorek testified that although
         [Appellee’s] vehicle was not traveling too fast for
         conditions or speeding, he “was coming into our lane.”
         Sidorek further testified that [Appellee’s] vehicle was
         driving towards him and that Sidorek felt his cruiser was
         going to be struck. Despite this testimony, however,
         neither Officer reported observing any erratic movement or
         weaving of [Appellee’s] vehicle.

            As a result, the Officers made a u-turn, activated the
         cruiser’s overhead lights and proceeded to and did conduct
         a traffic stop of [Appellee] detaining him for violations of
         75 [Pa.C.S.] § 3309(1), Driving on Roadways Laned for
         Traffic and 75 [Pa.C.S.] § 3714(a), Careless Driving.

            During the course of the traffic stop the Officers
         questioned and elicited statements from [Appellee] and
         had him submit to three (3) standard field sobriety tests.
         [Appellee] was taken into custody and transported to Tyler
         Memorial Hospital where blood was drawn from him for
         purposes of conducting a consented to Blood Alcohol
         Content (BAC) test.     Based upon this chemical test,
         [Appellee] had a BAC of 0.175%.

            Officer Sidorek’s police cruiser was equipped with a
         dash cam video system[1] that records the movement of

1
  The certified record transmitted on appeal did not initially include the dash
cam video of the vehicle stop. Upon informal inquiry by this Court, the trial
court provided the dash cam video. We remind counsel the appellant bears
the burden of “ensur[ing] the record certified on appeal is complete in the



                                     -2-
J-S94034-16


           the cruiser, including date, time, location, speed,
           geographic terrain and events appearing before the
           cruiser.

              [Appellee] was charged with two (2) counts of Driving
           Under the Influence of Alcohol (hereinafter “DUI”) or a
           Controlled Substance, General Impairment and Highest
           rate of Alcohol (First Offense), 75 [Pa.C.S.] § 3802(a)(1),
           (c). [Appellee] was also charged with two (2) non-DUI
           motor vehicle traffic violations─Driving on Roadway Laned
           for Traffic, 75 [Pa.C.S.] § 3309(1), and Careless Driving,
           75 [Pa.C.S. §] 3714(a).       On or about March 26, 2015,
           [Appellee] filed a Pretrial Omnibus Motion. Thereafter, on
           or about October 9, 2015 [Appellee] filed Supplemental
           Reasons supporting his Pretrial Motion to Suppress.
           [Appellee] again filed Supplemental Reasons in Support of
           [Appellee’s] Omnibus Pretrial Motion on January 8, 2016,
           specifically seeking to suppress the chemical test of his
           blood, to dismiss Count II of the Information[2] and
           asserting that Pennsylvania’s Implied Consent statute
           violates the Fourth Amendment Warrant Clause. A hearing
           was held thereon on January 15, 2016 and continued on
           March 11, 2016 . . . .

Trial Ct. Op., 6/3/16, at 1-2 (unpaginated) (citations omitted).

        Officer Sidorek testified to the following at the January 15, 2016

omnibus pretrial motions hearing:

           [Appellee’s Counsel]: . . . Officer, I’m going to show you
           what has been marked for identification as defense exhibit
           number one and I would have you take a look at that.
           Would you agree with me that those are snapshots of the
           video of the night in question that was presented at the
           preliminary hearing in this matter?

sense that it contains all of the materials necessary for the reviewing court
to perform its duty.” Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.
Super. 2008) (en banc) (citation omitted).
2
    Count II of the information was DUI, 75 Pa.C.S. § 3802(c).




                                      -3-
J-S94034-16



       A: I’d agree with you that these are from that night.

       Q: I’d like you to take a look first at the second page, I
       believe.

                               *     *    *

       And that shows [Appellee’s] vehicle approaching your
       vehicle. Is that correct?

       A: That’s correct.

       Q: OK, up on the top, there’s a time recording.     Do you
       see that?

       A: 22:33:35.

       Q: I want you to go to the first page. The first page shows
       [Appellee’s] vehicle next to the police cruiser. Is that
       correct?

       A: Correct.

       Q: And what is the time showing on the top of that
       snapshot?

       A: 22:33:36.

       Q: A matter of one second.

       A: Correct. . . .

                               *     *    *

       Q: You would agree that, in observing [Appellee’s] vehicle,
       at no time did you see it weaving, correct?

                              *     *     *

       My question, though, is, you didn’t see it weaving at all,
       did you?

       A: No.


                                    -4-
J-S94034-16



                                  *    *    *

       Q: Would you agree with me, based upon your
       observations of [Appellee’s] vehicle, that he was not
       speeding at the time?

       A: I would agree with that, too.

                                  *    *    *

       Q: OK, for all you know, [Appellee’s] vehicle could have
       moved up to the center line and not even crossed onto the
       center line. Isn’t that correct?

       A: That’s a possibility.

       Q: So he could have stayed fully within his lane at that
       point in time. Isn’t that correct?

       A: Possibly.

                                  *    *    *

       Q: All you know is─for the sake of my questioning, you do
       not know if [Appellee’s] vehicle ever left his lane of travel.
       Isn’t that correct?

       A: Correct.

                                  *    *    *

       Q: . . . After you passed [Appellee’s] vehicle, your
       overheard [sic] lights were activated. Is that correct?

       A: Yes.

       Q: And you proceeded to try and catch up to [Appellee].
       Is that correct?

       A: Correct.




                                      -5-
J-S94034-16


         Q: And when you caught up to [Appellee] his vehicle had
         already been pulled to the side of the road. Is that
         correct?

         A: Correct.

         Q: And when you pulled up to his vehicle, your lights were
         still activated. Is that correct?

         A: Correct.

         Q: You’re in uniform. Is that correct?

         A: Correct.

R.R. at 22-23, 25-27, 29-30.3

      At the March 11, 2016 hearing, Appellee challenged the vehicle stop

on the basis that there was no probable cause. R.R. at 46. A stipulation

was entered into the record. R.R. at 102. Counsel for the Commonwealth

and Appellee stipulated to the following facts:

         1. John Zdaniewicz and Sidorek are municipal police
         officers employed by Tunkhannock Twp., Wyoming County,
         Pa.

                                  *    *    *

         3. On August 2, 2014, at approximately 10:36 p.m. the
         officers were on duty, in full uniform in a marked patrol car
         traveling southbound on SR 307 from Tunkhannock Twp.
         to Falls Township.

         4. SR 307 is a two lane highway with a double yellow
         center line.


3
  For the parties’ convenience, we refer to the reproduced record where
applicable.




                                      -6-
J-S94034-16


         5. While en route to Falls Township, the officers traveled
         through Overfield Township (Wyoming County) at which
         time they observed a vehicle traveling toward them in the
         northbound or opposite lane.

         6. As the vehicle approached them, Ptlmn. Zdaniewicz
         observed the left driver side wheels of the vehicle
         momentarily cross onto but not over the double yellow
         centerline of the highway.

         7. Ptlmn. Zdaniewicz could not estimate the speed of the
         vehicle.

         8. Ptlmn. Zdaniewicz testified at the preliminary hearing
         that the vehicle was not traveling at a speed that was
         unsafe for the conditions at the time.

         9. The vehicle was being operated by [Appellee].

         10. The officers immediately turned around, activated the
         vehicle’s overhead lights and pursued [Appellee’s] vehicle
         to conduct a traffic stop.

         11. [Appellee] had pulled his vehicle off to the side of the
         roadway and was stopped when the officers pulled their
         patrol car, with overhead lights activated, directly behind
         [Appellee’s] vehicle.

         12. Ptlmn. Zdaniewicz testified at the preliminary hearing
         that he observed [Appellee] exiting from the driver side of
         his vehicle.

         13. Officer Zdaniewicz      exited    the   patrol   car   and
         approached [Appellee].

                                 *    *    *

         15. Based upon his investigation, Officer Zdaniewicz placed
         [Appellee] under arrest on suspicion of driving under the
         influence of alcohol or a controlled substance.

R.R. at 5-6.




                                     -7-
J-S94034-16


     On June 3, 2016, the trial court granted Appellee’s omnibus pretrial

motion to suppress the evidence of the results of the administration of the

Horizontal Gaze Nystagmus test.     Appellee’s motion to determine whether

Pennsylvania’s Implied Consent statute violated the Fourth Amendment

Warrant Clause was denied as moot. On June 30, 2016, the Commonwealth

filed a notice of appeal.   On the same date, the Commonwealth filed an

amended notice of appeal, certifying that the order appealed from will

terminate or substantially handicap the prosecution.4    The Commonwealth

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal.

     The    Commonwealth raises the       following issue   for   our   review:

“Whether the traffic stop of [Appellee’s] vehicle was supported by probable

cause?” Commonwealth’s Brief at 4. The Commonwealth contends that

          [t]he trial court erred and abused its discretion by
          elevating probable cause to a standard higher than what it

4
 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.




                                    -8-
J-S94034-16


        is supposed to be. The trial court reached its conclusions
        based upon four factual findings: (1) Officer Zdaniewicz
        saw [Appellee’s] left tires cross over but not over the
        double yellow centerline; (2) Officer Sidorek stated speed
        was not an issue; (3) Neither officer observed any erratic
        movement or weaving of [Appellee’s] vehicle; and (4) the
        dash cam does not show [Appellee’s] vehicle leaving the
        lane of travel.

                                *    *    *

            In this case, the police had probable cause[5] to stop
        [Appellee] because they had specific articulable facts that
        the Vehicle Code was violated. The police were traveling
        in their lane, along a gradual left curve. [Appellee] was in
        the opposite lane. The video, which is part of the record,
        appeared to show [Appellee] drive on, or just over, the
        double yellow line as he passed the police. The vehicles
        are in close proximity to each other. The police moved
        their car to the right to avoid [Appellee]. Both cars had
        their headlights on and it is reasonable to believe the
        police vehicle was easily seen. Patrolman Sidorek was a
        couple feet closer to [Appellee’s] car from the position of
        the camera.

                                *    *    *

           Sidorek testified that as [Appellee] passed him, he
        believed [Appellee] crossed the yellow line. The officer’s
        belief, even if mistaken, that [Appellee] crossed the line
        and drove carelessly was reasonable, as the video clearly
        proves. This was not an incident the officers concocted.
        They reasonably believed [that Appellee] violated the
        traffic code, and pursued him to make a stop.

Commonwealth’s Brief at 7-9 (citations omitted).

     Our review is governed by the following principles:



5
  The Commonwealth does not contest the fact that probable cause was
required to stop Appellant’s vehicle. See Commonwealth’s Brief at 7-9.



                                    -9-
J-S94034-16


         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).

         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.

Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (quotation

marks and citation omitted).

      Section 3309(1) of the Motor Vehicle Code provides:

         (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(a). Section “3309(1) of the          Vehicle   Code requires

motorists to maintain a single lane as nearly as practicable.         Thus, the

statutory    language     does     not    foreclose    minor      deviations.”




                                     - 10 -
J-S94034-16


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

marks and citation omitted and emphases added).

     Section 3714(a) provides:

        (a) General rule.─Any person who drives a vehicle in
        careless disregard for the safety of persons or property is
        guilty of careless driving, a summary offense.

75 Pa.C.S. § 3714(a).    “The mens rea requirement applicable to § 3714,

careless disregard, implies less than willful or wanton conduct but more than

ordinary negligence or the mere absence of care under the circumstances.”

Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010)

(quotation marks and citations omitted).    Probable cause is required for a

vehicle stop pursuant to Section 3714(a). Commonwealth v. Wilson, 111

A.3d 747, 755 (Pa. Super. 2015), appeal denied, 128 A.3d 221 (Pa. 2015).

     In Gezovich, this Court opined:

           The Commonwealth’s evidence in the case [ ] was brief.
        An accident occurred because [the a]ppellant was unable
        to stop her vehicle in time to avoid striking the rear of the
        automobile in front of her. It is well established that the
        mere occurrence of an accident does not prove negligence.

           Thus, the Commonwealth did not even establish the
        existence of ordinary negligence because it did not prove
        how the accident occurred; it was required to establish
        more than mere negligence and more than the mere
        absence of care in order to convict [the a]ppellant of
        careless driving. The fact that [the a]ppellant did not have
        sufficient time to stop does not mean that she was
        negligent. The driver of the vehicle that [the a]ppellant
        struck may have improperly left its lane of travel and
        pulled in front of her without leaving her sufficient room to
        stop. The vehicle in question may have abruptly stopped
        without warning.      There is no indication that [the


                                   - 11 -
J-S94034-16


          a]ppellant was speeding or looking away from the
          roadway. The evidence simply does not establish
          ordinary, civil negligence much less a heightened
          type of carelessness necessary to sustain a
          conviction for careless driving. The Commonwealth
          failed to meet its burden of proof herein.

Gezovich, 7 A.3d at 302-03 (citations and footnote omitted) (emphases

added).

     In the instant case, the trial court opined:

             Officer Zdaniewicz only observed the left driver side
          wheels of [Appellee’s] vehicle momentarily cross over but
          not over the double yellow centerline. Officer Sidorek
          admitted that [Appellee] was not speeding nor traveling to
          fast for conditions at the time. Neither Officer reported
          observing any erratic movement or weaving of [Appellee’s]
          vehicle. The dash cam does not show [Appellee’s] vehicle
          leaving its lane of travel.

             Because the officer’s [sic] did not have probable cause
          to stop [Appellee’s] vehicle, any evidence pertaining to a
          Horizontal Gaze Nystagmus test and the results thereof
          must be suppressed.

Trial Ct. Op. at 3-4 (unpaginated). We agree no relief is due.

     In the case sub judice, the officers did not have probable cause to

initiate a traffic stop based upon Section 3309(1) of the Code. See Salter,

121 A.3d at 992.      The trial court found that the video did not show

Appellee’s vehicle leaving its lane of travel. See Enick, 70 A.3d at 847. The

record did not establish probable cause to stop Appellee’s vehicle pursuant

to Section 3714(a).   See Wilson, 111 A.3d at 755; Gezovich, 7 A.3d at

302-03.     There was no evidence that Appellee was speeding or inattentive.

See Gezovich, 7 A.3d at 302-03.       We discern no abuse of discretion or


                                    - 12 -
J-S94034-16


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.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2017




                                    - 13 -
