J-A01004-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                    v.                    :
                                          :
JOHN FEE,                                 :
                                          :
                  Appellant               :     No. 576 WDA 2016

            Appeal from the Judgment of Sentence March 29, 2016,
              in the Court of Common Pleas of Crawford County,
             Criminal Division at No(s): CP-20-CR-0000322-2015

BEFORE:      BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 23, 2017

      John Fee (Appellant) appeals from the judgment of sentence imposed

on March 29, 2016, after he was found guilty of two counts of driving under

the influence of alcohol or a controlled substance (DUI) and one count of

failing to drive on the right side of a roadway. We affirm.

      The suppression court summarized the underlying facts, based upon

testimony taken during the suppression hearing, as follows.

            On January 11, 2015 at approximately 1:50 a.m.[,]
      Pennsylvania State Trooper Edward Schick was driving in a
      marked police cruiser along with partner Trooper Greg Hoover in
      the Canandohta Lake area. Both troopers were in uniform.
      Trooper Schick had been a police officer for 23 years before this
      incident.

            Trooper Schick testified that he was driving south on
      Lakeview Dr[ive] when he observed [Appellant’s] vehicle
      approaching him while driving north. [Trooper Schick] testified
      that he saw [Appellant’s] vehicle was somewhat in [his] lane of
      travel, and that as the two vehicles approached one another

*Retired Senior Judge assigned to the Superior Court.
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     [Appellant’s] vehicle slowly moved back into its proper lane.
     Nonetheless, [Trooper Schick] had to pull over and this action
     allowed [Appellant] to pass him without incident. Trooper Schick
     then turned left into a private driveway, backed out onto
     Lakeview Dr[ive], and proceeded northbound to follow
     [Appellant]. [Trooper Schick] testified that he decided to follow
     [Appellant] based on the observation that he was not driving in
     his lane.

            Although Trooper Schick could see [Appellant’s] vehicle
     when he began turning around, when he first began proceeding
     north on Lakeview Dr[ive] he could not see [Appellant’s] vehicle
     because of a bend in the road. After a few seconds of driving[,]
     the troopers rounded the bend, and when [Appellant’s] vehicle
     again came into view it was completely stopped in the road with
     its brake lights on. [Appellant’s] vehicle was not pulled off onto
     the berm, but rather, appeared to be in the right lane of traffic,
     although the lane lines were concealed by snow. [Appellant’s]
     vehicle remained stationary for a substantial period of time. In
     fact, a review of the video of the incident, entered as
     Commonwealth Exhibit #1 at the hearing, shows that when
     [Appellant’s] vehicle comes into frame its brake lights are on and
     the vehicle appears to be stopped for approximately seventeen
     seconds as the troopers’ vehicle approaches.          [Appellant’s]
     vehicle did not even have its hazard lights on during the relevant
     time period.

             During the approach, the troopers’ vehicle slowed down
     and pulled up behind [Appellant’s] vehicle. At that time[,]
     Trooper Schick said that he could not read the vehicle’s license
     plate because it was obstructed by snow. [Appellant’s] vehicle
     then released its brakes, proceeded slowly a short distance and
     then turned on its right turn signal. A traffic stop was then
     initiated by activation of the police vehicle’s overhead emergency
     lights. [Appellant’s] vehicle turned down a nearby road on the
     right and stopped his vehicle in compliance with the trooper[s’]
     initiation of the traffic stop. Trooper Schick testified that he
     initiated the traffic stop due to [Appellant’s] failure to remain in
     his lane and out of concern for the safety of [Appellant], the
     troopers, and other drivers.

          The road and surrounding area at the time of the incident
     [were] covered in snow.    The lane lines of the road were
     obscured by snow and were not visible. Snow also covered the

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     berm. Except for the [troopers], there were no other vehicles or
     pedestrians present on the road at that time…. Lakeview Dr[ive]
     is a 25 mile per hour road. [Appellant] testified he was traveling
     approximately 20 miles per hour when he initially approached
     the police vehicle.

                                       ***

     [Appellant] testified that he believed the troopers were going to
     pull him over either because his wife may have called the police
     on him because of their argument, or maybe his next door
     neighbor called the police about the noisy argument. That is
     why, he testified, he was stopped in the road when the cruiser
     approached him from behind.

Suppression Court Opinion, 9/9/2015, at 1-2 (unnecessary capitalization

omitted).

     Based on the circumstances that arose as a result of this traffic stop,

Appellant was charged with, inter alia, the aforementioned crimes. On May

18, 2015, Appellant filed an omnibus pre-trial motion to suppress the

evidence.   Specifically, Appellant argued that the troopers lacked both

reasonable suspicion and probable cause to stop his vehicle.              The

suppression court held a hearing where testimony from Trooper Schick and

Appellant was presented.    On September 9, 2015, the suppression court

denied Appellant’s motion, concluding that (1) the troopers had probable

cause to stop Appellant for violating section 3301(a) of the motor vehicle

code (driving on the right side of the road), and (2) the troopers possessed

reasonable suspicion to investigate Appellant for DUI. See id.

     A non-jury trial was held on January 25, 2016, and Appellant was

found guilty of the aforementioned charges. On March 29, 2016, Appellant

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was sentenced to 72 hours to six months of incarceration. Appellant timely

filed a notice of appeal, and both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      On appeal, Appellant argues that the suppression “court erred when it

denied [his] motion for suppression of evidence based upon the opinion that

the Commonwealth had probable cause and reasonable suspicion to stop

[his] vehicle[.]”1 Appellant’s Brief at 10.

      We consider Appellant’s issue mindful of the following.

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct. [W]e may consider only the evidence of the prosecution
      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 record supports the findings of the suppression
      court, we are bound by those facts and may reverse only if the
      court erred in reaching its legal conclusions based upon the
      facts.

Commonwealth        v. Prisk, 13 A.3d 526, 530 (Pa. Super. 2011) (quoting

Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en

banc)).

      Appellant argues that Trooper Schick could not have had probable

cause to stop him for failing to drive on the right side of the roadway

because “the roadway in question had no marked center lanes, no shoulder



1
  In Appellant’s brief, his argument is limited to a discussion of why the
troopers lacked probable cause.     He does not address the reasonable
suspicion component.

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off the roadway, was completely snow covered with snow banks and that

both vehicles passed each other, without incident or hazard; as both vehicles

were traveling slowly and also slowed their speed to pass each other.”

Appellant’s Brief at 18.

      We begin by setting forth the relevant principles of law regarding

traffic stops. The authority of a police officer to stop a vehicle is governed

by 75 Pa.C.S. § 6308(b), and provides the following:

      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). In Commonwealth v. Feczko, 10 A.3d 1285 (Pa.

Super. 2010) (en banc), this Court explained that, based upon our Supreme

Court’s interpretation of the language of subsection 6308(b), a traffic stop

based upon reasonable suspicion must serve an investigatory purpose.

Otherwise, probable cause is necessary to initiate the stop.

      [W]hen considering whether reasonable suspicion or probable
      cause is required constitutionally to make a vehicle stop, the
      nature of the violation has to be considered.        If 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. Where a violation is suspected, but a
      stop is necessary to further investigate whether a violation has
      occurred, an officer need only possess reasonable suspicion to
      make the stop.

Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa. Super. 2015).

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      The statute governing driving on the right side of the roadway

provides the following, in relevant part: “Upon all roadways of sufficient

width, a vehicle shall be driven upon the right half of the roadway[.]” 75

Pa.C.S. § 3301(a) (emphasis added).2      Because an investigation following

the traffic stop would have provided Trooper Schick with no additional

information as to whether Appellant was not driving on the right side of the

roadway, probable cause was necessary to initiate the stop.

      Probable cause is made out when 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.
      The question we ask is not whether the officer’s belief was
      correct or more likely true than false. Rather, we require only a
      probability, and not a prima facie showing, of criminal activity.
      In determining whether probable cause exists, we apply a
      totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal

quotation marks and citations omitted).

      In considering Appellant’s claim, we find instructive this Court’s

opinion in Commonwealth v. Enick, 70 A.3d 843 (Pa. Super. 2013).           In

that case, at 2:38 a.m., a police officer observed Enick’s vehicle travelling

with “half of the vehicle cross[ing] the double yellow lines into oncoming

traffic for 2-3 seconds.” Id. at 844. The officer initiated a traffic stop and

found that Enick was DUI. Enick filed a motion to suppress arguing that the


2
  The statute lists a series of exceptions to subsection (a), which are not
applicable in this case.

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vehicle stop was unlawful. The trial court denied the motion and convicted

Enick of DUI. On appeal to this Court, Enick argued that “a single breach in

the centerline--a momentary and minor deviation from the norm--is

insufficient to create probable cause in support of the vehicle stop.” Id. at

846 (quotation marks omitted).    In concluding that the police officer had

probable cause to stop Enick for violating section 3301(a), this Court held

that “the record plainly indicates that Enick violated” that section. Id. at

847. The Court stated that “half of Enick’s vehicle crossed over the double

yellow centerline into an oncoming lane of traffic and remained there for

three seconds.” Id. at 848. “Enick’s driving plainly posed a safety hazard,

with half of her vehicle protruding into an oncoming lane as [the officer’s]

vehicle approached from the opposite direction.”3 Id.

     Instantly, Trooper Schick testified     that   he   initiated a stop of

Appellant’s vehicle after he had to pull “over to the side of the road to let

[Appellant] go by” when Appellant was driving in the opposite direction on


3
  In Enick, this Court distinguished Commonwealth v. Garcia, 859 A.2d
820 (Pa. Super. 2004).       Garcia involved interpretation of 75 Pa.C.S.
§ 3309(1), driving on roadways laned for traffic, which provides that “[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[.]” (emphasis
added). The Garcia Court held that “the trial court erred in denying the
defendant’s motion to suppress, as his violations [of section 3309(1)] were
only ‘momentary and minor.’” Enick, 70 A.3d at 847, citing Garcia, 859
A.2d 823).       The Enick Court held that subsection 3309(1) was
distinguishable from subsection 3301(a) because “the statutory language [of
subsection 3309(1)] does not foreclose minor deviations” by including the
language “as nearly as practicable.” Enick, 70 A.3d at 847.

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this two-lane road. N.T., 8/4/2015, at 5. Appellant’s argument for deviating

from section 3301 largely amounts to offering a series of excuses for this

action: “lack of a center line, width of the road, the snow covered road

conditions, the snow banks, the time of night and winter season[] requiring

Appellant to drive his vehicle closer to the center of the road to avoid the

snowbank.” Appellant’s Brief at 21. However, in this case, as in Enick, the

vehicle had crossed substantially into oncoming traffic in violation of section

3301.     Moreover, Appellant’s driving did pose an actual safety hazard

because the troopers’ vehicle had to pull over to let Appellant pass. Based

on the foregoing, we conclude the suppression court did not err in

determining    that    Trooper   Schick    possessed   probable   cause   to   stop

Appellant’s vehicle.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/23/2017




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