J-A19028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLINTON BRUCE DIXON                        :
                                               :
                       Appellant               :   No. 1724 MDA 2017

        Appeal from the Judgment of Sentence Entered October 13, 2017
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-SA-0000109-2017


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 23, 2018

        Appellant Clinton Bruce Dixon appeals from the judgment of sentence

entered following his conviction for driving under suspension (DUS).1

Appellant contends that his conviction must be vacated because the arresting

officer lacked probable cause to stop his motor vehicle. We affirm Appellant’s

conviction, but vacate the judgment of sentence and remand for resentencing.

        The trial court summarized the relevant facts as follows:

        During the early afternoon of February 22, 2017, Officer Katie
        Justh of the Lower Allen Township Police Department was flagged
        down by an individual who stated that the driver of “what turned
        out to be” a maroon Chevy Monte Carlo had participated in a road
        rage incident and had threatened to “beat up” the complainant.
        The victim of the threat pointed out the vehicle which was leaving
        the scene and Officer Justh gave chase. N.T.[, 10/13/17 at] 3. On
        cross examination, the Officer explained in greater detail how it
        was that she came to stop [Appellant’]s vehicle:

____________________________________________


1   75 Pa.C.S. § 1543(a). This was Appellant’s sixth DUS conviction.
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         A When [the complainant] flagged me down, he was
         traveling west on Carlisle Road. I was eastbound. I had just
         left our station, he pointed at the car that was traveling
         ahead of him, so it was traveling westbound as well on
         Carlisle Road and was just rounding the corner of Orchard.
         We were literally like a half a block away from where
         [Appellant] was rounding the corner because we were on
         Carlisle at Lisburn and [Appellant] was on Carlisle at
         Orchard.

         Q So [the complainant] actually pointed to a vehicle that
         you could still see?

         A Yes.

         Q And then between that time and the time you pulled the
         vehicle over, was the vehicle in your sight that entire time?

         A Once it rounded the corner, it was out of my sight. Once
         I was able to do a U-turn and turn around, then I saw it at
         the traffic light. It was stopped at a red light.

         Q And how did you identify it as the same vehicle?

         A It was the only maroon El Camino, Chevy El Camino in the
         area. I’m sorry. Monte Carlo. I apologize, Chevy Monte
         Carlo.

         Q And then once you approached the vehicle, you initiated
         your stop?

         A I initiated a traffic stop, and the person that flagged me
         down pulled in behind me and also indicated to me that that
         was the correct vehicle that was the subject.

      N.T. [at] 7-8.

Trial Ct. Op., 12/6/17, at 1-2.

      After stopping the subject vehicle, Officer Justh approached the driver,

Appellant, who was the only person in the vehicle.      The officer asked for

Appellant’s license, registration, and insurance, and Appellant provided her

with a Pennsylvania driver’s license.   The officer obtained a Pennsylvania


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Department of Transportation report indicating that Appellant’s license was

suspended. The office issued Appellant’s citations for disorderly conduct and

DUS.

       On May 17, 2017, a magisterial district court found Appellant guilty of

disorderly conduct and DUS.            Appellant timely appealed to the court of

common pleas.

       The trial court held a trial de novo on October 13, 2017.               The

complainant did not appear, and the Commonwealth elected to proceed only

on the DUS charge. Officer Justh testified regarding the traffic stop and her

investigation into the suspension of Appellant’s operating privileges. Appellant

did not testify. In closing arguments, Appellant’s counsel asserted that the

DUS charge should be dismissed because Officer Justh lacked probable cause

to stop Appellant.2 The court concluded that there was a reasonable basis for

the stop. The court found Appellant guilty of DUS and not guilty of disorderly

conduct. That same day, the trial court sentenced Appellant to serve thirty

days’ imprisonment for DUS and to pay fines and costs.

       Appellant timely appealed and complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement.            The trial court filed a responsive

opinion.

____________________________________________


2 Although Appellant raised his suppression issue for the first time after the
close of evidence at the trial de novo, we decline to find waiver because the
Commonwealth did not object and the trial court specifically ruled on the
suppression issue. See Commonwealth v. Downey, 39 A.3d 401, 404 (Pa.
Super. 2012).

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      Appellant presents the following question on appeal:

      Did the [trial] court make an error of law in denying Appellant’s
      motion to dismiss the citation where the police had neither
      reasonable suspicion nor probable cause to stop [Appellant]’s
      vehicle?

Appellant’s Brief at 5.

      Appellant claims that the trial court erred in rejecting his motion to

dismiss the charge based on an unconstitutional stop. In support, Appellant

argues:

      In the present matter, the entirety of the evidence presented with
      respect to [Appellant’s] conduct, which was the sole basis for the
      vehicle stop, was that “he had threatened to beat [another
      motorist] up.”[] There was no testimony regarding “the
      circumstances surrounding [those] words,” which can be “crucial,”
      and the totality of the circumstances consisted entirely of that one
      statement. Yet, Disorderly Conduct requires that an individual
      “cause or unjustifiably risk a public disturbance,” Without
      evidence establishing that [Appellant] either caused or
      unjustifiably risked a public disturbance, the [trial] court could not
      have found facts “sufficient to warrant a man of reasonable
      caution in the belief that an offense has been or is being
      committed.” Nor could the [trial] court, with such a paucity of
      evidence, have engaged in a “highly fact-sensitive inquiry” to
      determine whether probable cause to stop [Appellant’s] vehicle
      was present.

Id. at 13.

      It is well-settled that

      [t]he standard and scope of review for a challenge to the denial
      of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing rulings of a
      suppression court, we must 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

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      a whole. Where the record supports findings of the suppression
      court, we are bound by those facts and may reverse only if the
      legal conclusions drawn therefrom are in error.

Commonwealth v. Leonard, 951 A.2d 393, 396 (Pa. Super. 2008) (citation

omitted).

      A police officer may stop a vehicle for investigatory purposes where

there is reasonable suspicion to believe that criminal activity is afoot.

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

banc). To establish a reasonable suspicion, “the police need not establish their

suspicions to a level of certainty, a preponderance, or even a fair probability.

. . . [T]he requisite quantum of suspicion necessary to conduct an

investigatory stop is a level ‘obviously less demanding than for probable

cause.’” Commonwealth v. Epps, 608 A.2d 1095, 1096 (Pa. Super. 1992).

      The inquiry into whether reasonable suspicion exists is an objective one.

Commonwealth v. Haines, 166 A.3d 449, 457 (Pa. Super. 2017).                We

review “the totality of the circumstances, including such factors as ‘tips, the

reliability of the informants, time, location, and suspicious activity[]’” to

determine whether “the facts available to the officer at the moment of the

intrusion warrant a man of reasonable caution in the belief that the action

taken was appropriate.” Id. (citations omitted). Moreover, a report made to

an officer in person “must be given more weight than a mere anonymous

phone call.” Commonwealth v. Williams, 980 A.2d 667, 672 (Pa. Super.

2009) (indicating that an in-person report provides an officer to observe the




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demeanor and assess the credibility of the reporter and subjects the reporter

to liability for giving false information).

      The trial court, in its Rule 1925(a) opinion, reviewed the relevant law

regarding reasonable suspicion and the reliability of tips from a known

informant. The court concluded:

      In this case, the identity of the motorist who flagged down Officer
      Justh obviously became known to the police. The complaining
      witness described the incident that had just occurred and the
      threat which had been made by [Appellant]. There was nothing
      about the circumstances which indicated that the complainant was
      being untruthful or, in any event, detracted from the need to
      investigate further. The incident involved one or more violations
      of criminal law, albeit summary offenses.[] The evidence makes it
      clear that the vehicle, ultimately stopped by Officer Justh, was the
      same vehicle whose driver had engaged in the road rage incident.
      Not only was the stop of the [Appellant’s] vehicle justified in this
      case, but the officer’s failure to have done so would have been a
      dereliction of duty.

Trial Ct. Op. at 4.

      Following our review, we discern no basis to disturb the trial court’s

analysis of Appellant’s suppression claim.     Appellant’s argument that the

description of alleged threat was too vague to establish all elements of a

particular offense, warrants no relief as an officer need not establish the

required suspicion to a level of certainty that an offense has been in fact

committed. See Epps, 608 A.2d at 1096. Accordingly, we agree with the

trial court that the officer possessed reasonable suspicion to stop Appellant’s

vehicle and investigate the complainant’s report of threatening behavior.




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      However, we must address the legality of the trial court’s flat sentence

of thirty days’ imprisonment for DUS as a sixth offense. “[C]hallenges to an

illegal sentence . . . may be reviewed sua sponte by this Court. An illegal

sentence must be vacated.” Commonwealth v. Tanner, 61 A.3d 1043, 1046

(Pa. Super. 2013) (citations and quotation marks omitted).      “Our scope of

review of challenges to the legality of a sentence is plenary, and the standard

of review is de novo.” Commonwealth v. Postie, 110 A.3d 1034, 1043 (Pa.

Super. 2015).

      In Postie, this Court held that 75 Pa.C.S. § 6503(a.1), which governs

the sentence for a person convicted of a sixth or subsequent DUS offense,

requires that the trial court impose a minimum and maximum sentence. Id.

at 1045.   Therefore, we are constrained to conclude that Appellant’s flat

sentence of thirty days of imprisonment is illegal, and we remand for

resentencing. See Tanner, 61 A.3d at 1047.

      Judgment of sentence vacated.        Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2018




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