J-S04036-19

                                   2019 PA Super 80

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES EDWARD WALLS                         :
                                               :
                       Appellant               :   No. 1385 MDA 2018

         Appeal from the Judgment of Sentence Entered July 16, 2018
       In the Court of Common Pleas of Northumberland County Criminal
                  Division at No(s): CP-49-CR-0001584-2016


BEFORE:      SHOGAN, J., OTT, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                             FILED MARCH 19, 2019

        Appellant, James Edward Walls, appeals from the judgment of sentence

of six months’ intermediate punishment, including 30 days of house arrest

with electronic monitoring, entered in the Court of Common Pleas of

Northumberland County after he entered a plea of no contest to one count of

driving under the influence of alcohol or a controlled substance (“DUI”).1

Herein, Appellant contends the suppression court erroneously denied his

motion to suppress evidence stemming from what he argues was an unlawful

traffic stop unsupported by reasonable suspicion of DUI. We affirm.

        We apply the following standard when reviewing the denial of a

suppression motion:

              [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

____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S04036-19


       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 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. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (citation

omitted). Moreover, the scope of review for a suppression issue is limited to

the record available to the suppression court. In re L.J., 79 A.3d 1073 (Pa.

2013).

       At the hearing on Appellant’s motion to suppress, Pennsylvania State

Trooper Joshua Lee Herman, who possessed eight years’ experience at the

time in question, testified that Trooper Justin Rosboschil was driving in front

of him on Pennsylvania State Route 405 South when Rosboschil advised by

radio that “there was a vehicle coming towards me [Herman]. . . . [T]here

was a truck headed my way, and it appeared that it was straddling the right

fog line” of the northbound lane.          N.T. 3/27/17 at 4-5.2   Trooper Herman
____________________________________________


2 Appellant raised a hearsay objection to Trooper Herman’s recitation of
Trooper Rosboschil’s radio advisement. N.T. at 5. The Commonwealth
responded that it offered the statement not as substantive evidence
supporting the stop but only as background information explaining why
Trooper Herman had prepared himself to observe keenly the truck’s manner



                                           -2-
J-S04036-19



testified he slowed down in anticipation of the truck, and when he saw it he

immediately noticed its right tires were across the right fog line. N.T. at 5,

10-11.

       Unlike his fellow trooper, Trooper Herman was at a place along the

highway where he was able to turn onto the northbound lane and follow the

truck. N.T. at 5, 10, 11. Herman testified, “While following the vehicle, [I

noticed] the vehicle was weaving within its lane of travel by going left to right,

back and forth. And I also observed it to cross over again the right fog line in

front of the Milton Transportation Company.” N.T. at 5-6. He explained that

he made these observations over the course of approximately 300 yards

before executing the traffic stop. N.T. at 7.

       On cross-examination, counsel for Appellant played the video recording

taken by the dashboard-mounted video camera inside Trooper Herman’s

patrol car. Counsel emphasized the obscuring effect the headlight’s glare had

on the video, but Trooper Herman insisted that such an effect was limited to

the video, as he maintained a clear view of the truck’s position on the highway

throughout the relevant time. N.T. at 10.

       By Order of June 30, 2017, the suppression court denied Appellant’s

motion to suppress based on its acceptance of Trooper Herman’s testimony

____________________________________________


of driving. Id. As we explain below, however, we conclude that Trooper
Rosboschil’s advisement was admissible as substantive evidence of Trooper
Herman’s formation of reasonable suspicion of DUI. Therefore, we consider
such evidence in conducting our inquiry into whether reasonable suspicion
supported the traffic stop in question.

                                           -3-
J-S04036-19



that Appellant’s truck, within a 300-yard distance, crossed the right fog line

twice and weaved within its lane of travel. The court also relied on its review

of the video, which, it said, depicted Appellant’s truck “drifting within his lane

of travel[,] touch[ing] the fog line and then mov[ing] towards the center

line[.] If contact with the centerline occurred, it was brief and did not appear

to result in any part of the vehicle actually crossing into the opposite lane of

travel.” Order, 6/30/17, at 2.

      On January 18, 2018, Appellant entered his no contest plea. The court

imposed Appellant’s sentence, described above, on July 16, 2018, and this

timely appeal followed.

      Here, Appellant argues that the suppression court should have

suppressed all evidence admitted against him because it stemmed from an

unlawful stop unsupported by reasonable suspicion of DUI. We disagree.

      The Motor Vehicle Code sets forth a law enforcement officer's authority

to stop a vehicle for an alleged violation as follows:

      Whenever a police officer ... 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.A. § 6308(b).

      Traffic stops based on a reasonable suspicion: either of criminal
      activity or a violation of the Motor Vehicle Code under the
      authority of Section 6308(b) must serve a stated investigatory
      purpose. In effect, the language of Section 6308(b)—to secure


                                      -4-
J-S04036-19


        such other information as the officer may reasonably believe to be
        necessary to enforce the provisions of this title—is conceptually
        equivalent with the underlying purpose of a Terry [3] stop.

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

(citations, quotation marks, and emphasis omitted, footnote added).

        Thus, there is a “distinction between the investigative potential of a

vehicle stop based on a reasonable suspicion of DUI as compared to other

suspected violations of the Motor Vehicle Code.” Commonwealth v. Busser,

56 A.3d 419, 423 (Pa.Super. 2012) (citation and quotation marks omitted);

see also Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008)(noting

“[e]xtensive case law supports the conclusion [that] a vehicle stop for DUI

may be based on reasonable suspicion, as a post-stop investigation is normally

feasible.”); Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.Super. 2005)

(stating that “a suspected violation for DUI is in fact a scenario where further

investigation almost invariably leads to the most incriminating type of

evidence.”).

        In   determining    whether     Trooper   Herman   possessed   reasonable

suspicion, “we must accord due weight to the specific reasonable inferences

that [he] is entitled to draw from the facts in light of his experience.” Sands,
____________________________________________


3   Terry v. Ohio, 392 U.S. 1 (1968).

                                           -5-
J-S04036-19



887 A.2d at 272. Reasonable suspicion requires an evaluation of the totality

of the circumstances.    Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa.

2011).

      Reasonable suspicion is a less stringent standard than [the]
      probable cause necessary to effectuate a warrantless arrest, and
      depends on the information possessed by police and its degree of
      reliability in the totality of the circumstances. In order to justify
      the seizure, a police officer must be able to point to specific and
      articulable facts leading him to suspect criminal activity is afoot.
      In assessing the totality of the circumstances, courts must also
      afford due weight to the specific, reasonable inferences drawn
      from the facts in light of the officer's experience[,] and
      acknowledge that innocent facts, when considered collectively,
      may permit the investigative detention.

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) (citations

omitted).

      Here, in explaining its ruling that reasonable suspicion of DUI supported

the stop, the suppression court pointed to testimonial and video evidence

showing Appellant’s truck drifted back and forth within its lane for

approximately 300 yards, during which time it went from the right fog line, to

the double yellow center line, and back atop the right fog line again. The court

also discussed how Trooper Herman relied on his eight years’ experience to

infer that the movements he observed created reasonable suspicion of DUI

justifying a traffic stop to permit further investigation necessary to

substantiate such suspicion.       The court, therefore, denied Appellant’s

suppression motion.




                                      -6-
J-S04036-19



      Applying the applicable standard of review and considering comparable

decisional law, we conclude that the record supports the court’s factual

findings and legal conclusion that reasonable suspicion of DUI supported

Trooper Herman’s traffic stop of Appellant.

      We note, however, that the totality of information leading Trooper

Herman to perform the traffic stop in question comprised not only his own

observations of Appellant’s driving but also his receipt of Trooper Justin

Rosboschil’s observations made proximate in time and location to his own.

Specifically, Trooper Rosboschil advised that he had witnessed Appellant’s

truck “straddling the fog line” just moments before Trooper Herman then

confirmed this advisement with his own observations.

      Relevant precedent confirms that a law enforcement officer may conduct

an investigative detention of a suspect based on reasonable suspicion formed

in whole or in part upon facts observed by a reliable source, such as another

officer or an identified citizen tipster.

      “To have reasonable suspicion, police officers need not personally
      observe the illegal or suspicious conduct, but may rely upon the
      information of third parties, including tips from citizens.”
      Commonwealth v. Swartz, 787 A.2d 1021, 1024 (Pa.Super.
      2001) (en banc) (citation omitted). “Indeed, identified citizens
      who report their observations of criminal activity to police are
      assumed to be trustworthy, in the absence of special
      circumstances, since a known informant places himself at risk of
      prosecution for filing a false claim if the tip is untrue, whereas an
      unknown informant faces no such risk.” Commonwealth v.
      Barber, 889 A.2d 587, 593 (Pa.Super. 2005).                 Similarly,
      “Pennsylvania law ... permits a vehicle stop based upon a radio
      bulletin if evidence is offered at the suppression hearing to
      establish reasonable suspicion.” Id. at 594.

                                        -7-
J-S04036-19



            [F]or a stop to be valid, someone in the police
            department must possess sufficient information to
            give rise to reasonable suspicion. The officer with the
            reasonable suspicion, usually the dispatcher, need not
            convey all of this background information to the officer
            who actually effectuates the stop. Thus, the police
            may justify the search by presenting sufficient
            evidence at the suppression hearing that someone in
            the chain of command had reasonable suspicion
            before the stop, even if the arresting officer did not.

      Id. (citation omitted).

Commonwealth v. Anthony, 977 A.2d 1182, 1187 (Pa.Super. 2009)

(holding Commonwealth established existence of reasonable suspicion of DUI

solely through testimony of arresting officer who executed traffic stop

exclusively upon highly detailed information supplied in dispatch relaying

observations of a named-citizen informant maintaining contact with erratic

driver).

      Therefore, we examine whether Trooper Herman’s possession of

Trooper Rosboschil’s advisement coupled with his own observations supplied

reasonable suspicion of DUI permitting the investigative detention that

followed.   As discussed, Trooper Herman testified that his fellow trooper

warned him of an oncoming truck straddling the right fog line.          Trooper

Herman slowed to position himself to make a U-turn, which he completed after

witnessing Appellant’s truck riding along the right fog line. After turning to

follow the truck, Trooper Herman witnessed it drift within its lane, from fog

line to the double yellow center line, and back to the fog line, all within 300

yards before the trooper activated his overhead lights to conduct a traffic stop.


                                      -8-
J-S04036-19



     In Sands, this Court held that reasonable suspicion of DUI was formed

when a qualified officer observed a vehicle’s “unsteady weaving progress” as

it drifted across the fog line three times on a portion of road free from

obstructions.   Id. at 272.   Sands, therefore, supports the conclusion that

information available to Trooper Herman at the critical time was, likewise,

sufficient to establish reasonable suspicion of DUI.   Consequently, Trooper

Herman’s traffic stop was not improper, and we affirm the judgment of

sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/19/2019




                                     -9-
