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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :         No. 1124 WDA 2019
                                        :
CHRISTOPHER BATCH                       :


               Appeal from the Order Entered June 21 2019,
          in the Court of Common Pleas of Westmoreland County
             Criminal Division at No. CP-65-CR-0002188-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 25, 2020

     The Commonwealth appeals1 from the June 21, 2019 order granting the

omnibus pre-trial suppression motion filed by appellee, Christopher Batch.

After careful review, we reverse the suppression order and remand for

proceedings consistent with this memorandum.

     The suppression court summarized the relevant facts of this case, as

gleaned from the suppression hearing transcript, as follows:

           [Pennsylvania State Police] Trooper [Joseph] Lauricia
           testified that at approximately 9:15 p.m. on May 9,
           2018, he was on his way home driving an unmarked
           police vehicle. Trooper Lauricia testified that at that
           time, he observed a black Volvo pull up next to him at
           the intersection of Otterman Street and North Main
           Street in Greensburg while Trooper Lauricia was

1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the trial
court’s June 21, 2019 order will terminate or substantially handicap the
prosecution.
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          stopped at a right [sic] light. Trooper Lauricia testified
          that as the vehicle pulled next to him, he observed
          different lights blinking on the dashboard that caught
          his attention, such as turn signals, four way
          indicators, hazard lights, and the check engine light.
          Trooper Lauricia testified that as the vehicle was in the
          straight lane, the lights that were blinking were either
          malfunctioning or indicating that something was
          wrong with the vehicle. Trooper Lauricia testified that
          he was not dressed in uniform, but rather dressed in
          a shirt and tie. Trooper Lauricia indicated that the
          vehicle continued on Otterman Street across Main
          Street, and Trooper Lauricia followed behind the
          vehicle to obtain the license plate of the vehicle to call
          it [in to] dispatch. Trooper Lauricia testified that he
          continued to follow the vehicle to the intersection of
          North Pennsylvania Avenue and Otterman Street.

          Trooper Lauricia then testified that the vehicle made
          a right-hand turn on North Pennsylvania Avenue
          without using a turn signal. Trooper Lauricia indicated
          that he followed the vehicle as it turned down into a
          residential neighborhood, and the vehicle continued at
          a very high rate of speed through the neighborhood,
          turning multiple times down alleys and other
          roadways      without      using     a    turn    signal.
          Trooper Lauricia testified that that behavior indicated
          to him that the vehicle was trying to get away from
          his vehicle so he continued to follow the vehicle while
          calling for backup. Trooper Lauricia testified that he
          did not activate his lights to pull the vehicle over until
          a uniformed officer was present because it was
          nighttime, he was not in uniform, and he was in an
          unmarked police vehicle. Trooper Lauricia testified
          that eventually, the vehicle came to a sudden stop,
          and he conducted a traffic stop.

          On cross-examination, Trooper Lauricia confirmed
          that he did not observe [appellee] engage in any
          illegal activity or commit any vehicle code violations
          at the time he proceeded through the intersection at
          Otterman Street, and he began to follow him. When
          questioned       by    the    [suppression     c]ourt,
          Trooper Lauricia testified that by the time the


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            information came back with regard to the vehicle’s
            registration, a traffic violation had been committed in
            his presence.

Suppression court opinion, 6/21/19 at 2-4 (citations to notes of testimony

omitted).

      Trooper Lauricia testified that during the traffic stop, he detected a

strong odor of raw, unburnt marijuana emanating from appellee’s vehicle and

observed appellee moving things around in the back seat.               (Notes of

testimony, 2/15/19 at 19-20.) A search of appellee’s vehicle by uniformed

officers following the traffic stop yielded multiple controlled substances (heroin

and cocaine) and two firearms. (Id.) Appellee was subsequently arrested

and charged with possession with intent to deliver a controlled substance, two

counts of possession of a controlled substance, receiving stolen property,

unlawful possession of a firearm, firearms not to be carried without a license,

and turning movements and required signals.2          On December 12, 2018,

appellee filed an omnibus pre-trial motion to suppress the contraband found

in his vehicle, arguing that Trooper Lauricia lacked reasonable suspicion to

“follow[] him for no apparent reason resulting in the manufacturing of

probable cause for the traffic stop.”       (See “Motion for Suppression of

Evidence,” 12/12/18 at ¶ 11.)




2 35 P.S. §§ 780-113(a)(30) and (a)(16); 18 Pa.C.S.A. §§ 3925(a),
6105(a)(1), and 6106(a)(1); and 75 Pa.C.S.A. § 3334(a), respectively.


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      On February 15, 2019, the suppression court conducted a hearing on

appellee’s suppression motion. Following the hearing, the suppression court

granted appellee’s suppression motion on June 21, 2019. This timely appeal

followed.3

      The Commonwealth raises the following issues for our review:

             I.    Did [Trooper Lauricia] need to have reasonable
                   suspicion of criminal activity to justify following
                   [appellee’s] vehicle in order to read its license
                   plate number?

             II.   Did [Trooper Lauricia] possess probable cause
                   to     stop    [appellee’s]   vehicle    when
                   [Trooper Lauricia] saw [appellee] make a turn
                   without using a turn signal as required by the
                   vehicle code?

Commonwealth’s brief at 4 (extraneous capitalization omitted).

      Our standard of review in addressing a suppression court’s order

granting a suppression motion is well settled.

             When the Commonwealth appeals from a suppression
             order, we follow a clearly defined standard of review
             and consider only the evidence from the defendant’s
             witnesses together with the evidence of the
             prosecution that, when read in the context of the
             entire   record,   remains      uncontradicted.   The
             suppression court’s findings of fact bind an appellate
             court if the record supports those findings. The
             suppression court’s conclusions of law, however, are

3 The record reflects that the suppression court ordered the Commonwealth
to file a concise statement of errors complained of on appeal, in accordance
with Pa.R.A.P. 1925(b), on July 29, 2019. The Commonwealth filed its timely
Rule 1925(b) statement on August 1, 2019, and the suppression court filed
its Rule 1925(a) opinion on August 6, 2019, indicating that it was
incorporating the reasoning set forth in its June 21, 2019 opinion authored in
support of its order granting appellee’s suppression motion.


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            not binding on an appellate court, whose duty is to
            determine if the suppression court properly applied
            the law to the facts.

            Our standard of review is restricted to establishing
            whether the record supports the suppression court’s
            factual findings; however, we maintain de novo
            review over the suppression court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal

citations and quotation marks omitted), appeal denied, 159 A.3d 933 (Pa.

2016).

      “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”          Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation

marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “To secure the

right of citizens to be free from such intrusions, courts in Pennsylvania require

law enforcement officers to demonstrate ascending levels of suspicion to

justify their interactions with citizens to the extent those interactions

compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,

1201 (Pa.Super. 2002) (citation omitted).

      It is well established 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.[A.] § 6308(b).
            However, if the violation is such that it requires no



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

Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa.Super. 2013) (citation

omitted), appeal denied, 79 A.3d 1096 (Pa. 2013).

      “Reasonable suspicion is a less stringent standard than 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.” Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010).

Our supreme court has defined probable cause as follows:

            Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the stop, 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. Martin, 101 A.3d 706, 721 (Pa. 2014) (citations

omitted), cert. denied,       U.S.     , 136 S.Ct. 201 (2015).

      In the instant matter, the suppression court authored an opinion in

support of its June 21, 2019 suppression order, wherein it concluded that

Trooper Lauricia:    (1) “did not possess reasonable suspicion of a traffic

violation or indicia of criminal activity to justify following [appellee’s]

vehicle[;]” and (2) “failed to articulate sufficient facts necessary to establish



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reasonable suspicion of a violation of the motor vehicle code [(“MVC”)] or

reasonable suspicion of criminal activity being afoot to effectuate a traffic stop

of [appellee’s] vehicle[.]” (Suppression court opinion, 6/21/19 at 4.)

        Upon review, we find that the suppression court’s legal conclusion that

Trooper Lauricia needed reasonable suspicion of criminal activity to follow

appellee’s vehicle and check his license plate is erroneous. A previous panel

of this court, citing United States Supreme Court precedent, recognized “that

a person traveling in an automobile on public thoroughfares [has] no

reasonable expectation of privacy in his movements.” Commonwealth v.

Burgos, 64 A.3d 641, 650 n.7 (Pa.Super. 2013), appeal denied, 77 A.3d

635 (Pa. 2013), citing United States v. Knotts, 460 U.S. 276, 281 (1983).

In Commonwealth v. Bolton, 831 A.2d 734 (Pa.Super. 2003), a panel of

this court addressed whether a police officer who is patrolling the roadway is

required to have any level of suspicion before running a vehicle registration

through a mobile database. The Bolton court expressly rejected the claim

that the “charging officer must have some level of suspicion in order to run a

license plate on the road through the NCIC[4] computer,” concluding that “we

fail to see the need for some level of suspicion to check a license plate which

is clearly in plain view.” Id. at 737.

        We acknowledge that Trooper Lauricia testified that he was not on patrol

at the time he encountered appellee’s vehicle, but was rather returning home


4   National Crime Information Center.


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from his shift in an unmarked patrol car and was dressed in a shirt and tie.

(See notes of testimony, 2/15/19 at 4-5, 7-8.) Nonetheless, this court has

recognized that there is no explicit limitation of the authority of a Pennsylvania

State Trooper to make a traffic stop only when the trooper is on duty and in

uniform. See Commonwealth v. Gommer, 665 A.2d 1269, 1272 (Pa.Super.

1995) (finding that an off-duty Pennsylvania State Police Corporal who was

not in uniform acted within scope of her employment with the state police,

and therefore within scope of her legal authority, when she stopped a

defendant’s vehicle for suspicion of drunk driving), appeal denied, 686 A.2d

1308 (Pa. 1996).

      Additionally, we find that the record does not support the suppression

court’s factual finding that Trooper Lauricia failed to articulate sufficient facts

necessary to establish an MVC violation sufficient to justify his stop of

appellee’s vehicle. “Pennsylvania law makes clear that a police officer has

probable cause to stop a motor vehicle if the officer observes a traffic code

violation, even it if is a minor offense.” Commonwealth v. Calabrese, 184

A.3d 164, 167 (Pa.Super. 2018) (citation omitted). Here, appellee’s vehicle

was stopped for failing to use a turn signal, in violation of 75 Pa.C.S.A § 3334,

which provides, in pertinent part, as follows:

            § 3334.       Turning movements and required
            signals

            (a)    General rule.--Upon a roadway no
                   person shall turn a vehicle or move from
                   one traffic lane to another or enter the


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                  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.A. § 3334(a), (b).

      Trooper Lauricia explicitly testified that he observed appellee’s vehicle

“ma[ke] a right-hand turn on North Pennsylvania [Avenue] without using a

turn signal” and continue “at a very high rate of speed through [a residential]

neighborhood, turning multiple times down alleys and other roadways without

using a signal.” (Notes of testimony, 2/15/19 at 5-6.) Accordingly, a traffic

stop was warranted in this instance.5




5  In reaching this conclusion, we recognize that the testimony at the
suppression hearing reflects that Trooper Lauricia did not actually conduct a
traffic stop of appellee’s vehicle. Trooper Lauricia testified that he did not
activate his vehicle’s undercover lights until after appellee “stopped suddenly
on the side of the road” on his own accord, because he was in an unmarked
car and dressed in plainclothes and wanted to await the availability of the
uniformed officers he had notified to assist him. (Notes of testimony, 2/15/19
at 6-7.)


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     Based on the foregoing, we conclude that the suppression court erred

in granting appellee’s omnibus pre-trial suppression motion.

     Order reversed. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2020




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