J-A20005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JEFFREY CASTELLO,

                             Appellant               No. 1778 WDA 2017


        Appeal from the Judgment of Sentence Entered October 31, 2017
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000236-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 16, 2018

        Appellant, Jeffrey Castello, appeals from the judgment of sentence of

364-728 days’ incarceration, imposed following his conviction for driving

under influence of alcohol (“DUI”), driving while operating privilege is

suspended or revoked, careless driving, and driving without a license. 1

Appellant presents several challenges to the trial court’s denying his motion

to suppress. After careful review, we affirm.

        The trial court summarized the facts adduced at Appellant’s suppression

hearing and non-jury trial as follows:

             Sergeant Joel Hamilton of the Robinson Township Police
        Department testified at the suppression hearing that he
        [encountered] Appellant on June 18, 2016. [N.T. Suppression,
____________________________________________


175 Pa.C.S. § 3802(a)(1), 75 Pa.C.S. § 1543(b)(1), 75 Pa.C.S. § 3714, and
75 Pa.C.S. § 1501, respectively.
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     5/1/17, at 9]. Sergeant Hamilton testified that he was patrolling
     the Westway Shops in Robinson Township at approximately 1:00
     a.m. when he observed Appellant travelling at what the Sergeant
     believed was an excessive speed for a crowded parking lot. [Id.
     at 9-10]. Based on the speed of the vehicle traversing through a
     parking lot, combined with the Sergeant’s knowledge that patrons
     of a local bar in that plaza were frequently in that vicinity at that
     time of night, the Sergeant turned onto Steubenville Pike and
     followed Appellant. [Id. at 10]. Sergeant Hamilton testified that
     once Appellant entered Steubenville Pike, his car accelerated up
     to 50 miles per hour according to Sergeant Hamilton’s calibrated
     speedometer. [Id. at 11]. The posted speed limit for that stretch
     of road is 35 miles per hour. Id. In the quarter mile stretch that
     the Sergeant followed Appellant, the Sergeant observed
     Appellant’s vehicle cross the center[]line once and cross the fog
     line at least twice.2 Id. Based on the Sergeant’s observations,
     he activated his sirens and pulled Appellant’s truck over.3 [Id. at
     12].
        2 On cross-examination, Sergeant Hamilton testified that his
        “rule of thumb” was that one tire over a line was not a
        significant vehicular infraction. Two tires crossing either the
        center or [the] fog line, however, he … note[d].
        Therefore[,] he concluded that Appellant must have crossed
        the lines with two of his tires. [Id. at 23].
        3 Detective Hamilton further testified on cross-examination
        that he did not observe any pedestrians on Steubenville Pike
        but he could not observe beyond the crest of a hill Appellant
        was ascending during the time he followed Appellant’s truck.
        [Id. at 25-26].

            When the Sergeant reached Appellant’s truck, he detected
     a strong odor of alcohol and observed that Appellant’s eyes
     appeared bloodshot and glassy. [Id. at 13]. Appellant told him
     that his license was suspended and that he had left his
     identification at the bar at the Westway Shops where the Sergeant
     first observed Appellant’s vehicle. [Id. at 13-14]. Next, Appellant
     spontaneously uttered that he was “intoxicated.” [Id. at 14].
     Appellant admitted to consuming between six and eight beers, as
     well as two to three shots of hard liquor. [Id. at 15]. Sergeant
     Hamilton testified that Appellant showed signs of impairment on
     each of the field sobriety tests. [Id. at 16].




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            At the stipulated nonjury trial, counsel for Appellant
      stipulated to the admission of the May 1, 2017 transcript. [N.T.
      Non-jury Trial, 10/31/17, at 14]. Counsel also stipulated to
      Appellant’s certified driving record, which indicated that Appellant
      was under license suspension at the time he was driving, and to
      a certified conviction of one of the DUIs in which Appellant had
      been convicted. Id. Counsel further stipulated to two other DUI
      convictions and that all three convictions were within the ten[-
      ]year lookback period. [Id. at 13].

Trial Court Opinion (“TCO”), 1/25/18, at 3-4.

      As noted above, the trial court charged Appellant with DUI, driving while

operating privilege is suspended or revoked, careless driving, and driving

without a license. On March 24, 2017, Appellant filed a motion to suppress

alleging that Sergeant Hamilton lacked probable cause to stop his vehicle.

Following a hearing held on May 1, 2017, the trial court denied that motion.

See Findings of Fact and Conclusions of Law (“Findings”), 7/31/17, at 3.

Appellant proceeded to a stipulated, non-jury trial on October 31, 2017. The

trial court found Appellant guilty of all the charged offenses. That same day,

the trial court sentenced him to an aggregate term of 354-728 days’ (1 year

less one day to 2 years less 2 days’) incarceration.

      Appellant filed a timely notice of appeal, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion

on January 25, 2018. Appellant now presents the following questions for our

review:

      I. Whether the suppression court erred in making factual findings
      not supported by the record?

      II. Whether Sergeant Hamilton lacked probable cause to stop
      Appellant[’s] vehicle?


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      III. Whether the Court erred in unduly protracting prejudicial
      testimony from Sergeant Hamilton?

      IV. Whether the trial court erred when it refused to suppress the
      fruits of an illegal traffic stop where the stop occurred without
      probable cause?

Appellant’s Brief at 4. We will address Appellant’s claims out of the order in

which they were presented to aid in our disposition of this matter.

      Appellant’s first claim concerns the trial court’s factual findings during

his suppression hearing.

      Our 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 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, we are bound by these 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 our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

      Appellant alleges that several of the trial court’s factual findings are not

supported by the record. First, he contends that there is no evidence in the

record that he failed to utilize his turn signal. See Findings at 1 ¶ 6 (indicating



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that Appellant did not use his turn signal).          As correctly noted by the

Commonwealth, Appellant misconstrues the record.            See Commonwealth’s

Brief at 15 n.19. Although it is true that Sergeant Hamilton did not observe a

turn signal violation when Appellant exited the parking lot, see N.T.

Suppression at 21, he did observe Appellant’s failing to utilize his turn signal

while crossing the lines on Steubenville Pike, see id. at 11. Accordingly, the

trial court’s factual determination that Appellant “did not utilize his turn signal

when he was traveling on Steubenville Pike” was an accurate depiction of

Sergeant Hamilton’s testimony. Findings at 1 ¶ 6.

       Second, Appellant complains that the trial court failed “to address the

lack of calibration of the patrol car’s speedometer and the lack of requisite

distance to pace speed.”         Appellant’s Brief at 10.   Essentially, Appellant

complains that Sergeant Hamilton’s estimation of his speed was inadmissible

pursuant to 75 Pa.C.S. § 3368.2 However, as the Commonwealth correctly

argues, Section 3368 is not applicable in these circumstances, where the

testimony in question pertains to a finding of probable cause that a careless

driving offense had been committed, not where the offense at issue is a


____________________________________________


2 Section 3368(a) provides that “[t]he rate of speed of any vehicle may be
timed on any highway by a police officer using a motor vehicle equipped with
a speedometer. In ascertaining the speed of a vehicle by the use of a
speedometer, the speed shall be timed for a distance of not less than three-
tenths of a mile.” Section 3368(b) provides, in part, that “[s]peedometers
shall have been tested for accuracy within a period of one year prior to the
alleged violation and immediately upon change of tire size.”



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speeding offense or the failure to obey traffic-control devices.3 Appellant’s

actual speed was not an element of the offense at issue. Rather, Appellant’s

speed was but one factor among many that contributed to Sergeant

Hamilton’s determination that Appellant was engaged in careless driving.

Accordingly, we conclude that the trial court did not err by admitting Sergeant

Hamilton’s estimate of Appellant’s speed, despite the Sergeant’s failure to

demonstrate his compliance with Section 3368.

       The remainder of Appellant’s complaints regarding the trial court’s

summary of the facts concern trivial discrepancies and/or simply unartful

representations by the trial court, none of which, we conclude, contributed

significantly to the legal conclusions at issue.

       We turn now to Appellant’s third claim, in which he contends that the

trial court “unduly protract[ed]” the testimony of Sergeant Hamilton.      The

entirety of Appellant’s argument is as follows:

       It is uncontroverted that a trial judge may interrogate witnesses
       in order to clarify an issue or vague evidence. Mansour v.
       Linganna, 787 A.2d 443 (Pa. Super. 2001). However, that right
____________________________________________


3 This Court has held that “the requirements of [S]ection 3368 must be met
before a violation of [S]ection 3111 [obedience to traffic-control devices] may
be sustained.” Commonwealth v. Masters, 737 A.2d 1229, 1231 (Pa.
Super. 1999). Previously, this Court held that the requirements of Section
3368 must be met to sustain a violation of Section 3362 (maximum speed
limits). See Commonwealth v. Martorano, 563 A.2d 1229, 1233 (Pa.
Super. 1989) (en banc) (reasoning that “the Pennsylvania Legislature fully
intended to require the use of speed timing devices when a driver is charged
with violating 75 Pa.C.S. § 3362”). However, Appellant has provided no case
law suggesting that full compliance with Section 3368 is required to establish
violations of the Motor Vehicle Code beyond Sections 3111 and 3362.


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      is limited once a judge unduly protracts testimony from a witness.
      Carney v. Otis Elevator Co., 536 A.2d 804 (Pa. 1988). The
      burden is on the Defendant to show prejudice by the questioning
      such that an unfair result was reached. Commonwealth v.
      Troop, 571 A.2d 1084, 1086 (Pa. Super. 1990).

             Here, the assistant district attorney made no reference to
      the … hill crest theory upon which the court determined a potential
      safety hazard existed. There was no testimony regarding the
      same prior to the questioning by the court. The court asked all of
      the questions regarding the hill crest theory thereby bolstering the
      position of the Commonwealth and prejudging guilt, not clarifying
      an issue that was already placed before the [c]ourt.

Appellant’s Brief at 26-27.

      Our review of the record demonstrates that Appellant made no attempt

to object to the trial court’s questioning of Sergeant Hamilton regarding the

hill crest.   See N.T. Suppression at 25-26. As such, this claim is waived.

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).

      In any event, even if not waived, we ascertain no error in the court’s

questioning of Sergeant Hamilton.      The court asked only two questions of

Sergeant Hamilton. See N.T. Suppression at 25-26. Moreover, contrary to

Appellant’s assertion, there was testimony regarding the hill crest just

moments before. Id. at 24. Thus, the court’s questioning regarding the hill

crest was neither protracted nor unrelated to content of Sergeant Hamilton’s

prior testimony.

      Finally, in Appellant’s second and fourth claims, he contends the trial

court erred in denying his suppression motion, arguing that Sergeant Hamilton

lacked probable cause to stop him for careless driving.      “Any person who


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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).

Careless driving is essentially a lesser-included offense of reckless driving, 75

Pa.C.S. § 3736, a similarly worded statute; whereas the mens rea element of

reckless driving is criminal recklessness, 18 Pa.C.S. § 302(b)(3), the mens

rea element of careless driving is criminal negligence, 18 Pa.C.S. § 302(b)(4).

See generally Commonwealth v. Bullick, 830 A.2d 998, 1000-03 (Pa.

Super. 2003) (discussing the history of, and relationship between, careless

and reckless driving).

      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.”
      Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990
      (1991). The question we ask is not whether the officer’s belief
      was “correct or more likely true than false.” Texas v. Brown,
      460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).
      Rather, we require only a “probability, and not a prima facie
      showing, of criminal activity.” Illinois v. Gates, 462 U.S. 213,
      235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation omitted)
      (emphasis supplied). In determining whether probable cause
      exists, we apply a totality of the circumstances test.
      Commonwealth v. Clark, 558 Pa. 157, 735 A.2d 1248, 1252
      (1999) (relying on Gates, supra).

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

because this case involved the stop of a vehicle, we look to that point in time,

rather than the later arrest, to determine if Sergeant Hamilton possessed

probable cause to believe that Appellant committed or was committing the

offense of careless driving.


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     The trial court reasoned that Sergeant Hamilton did possess probable

cause to stop Appellant, based on the following:

        Sergeant Hamilton’s uncontroverted testimony was that he
     observed Appellant’s car moving at a high rate of speed in a
     parking lot outside a bar where patrons were entering and exiting
     at that time of night. The Sergeant followed Appellant onto
     Steubenville Pike, where the Sergeant observed Appellant’s car
     cross the center[]line once and the fog line at least twice.4 The
     Sergeant testified that he knew Appellant’s car crossed the lines
     with two tires, as he does not note as significant one tire crossing.
     Despite the short distance, Sergeant Hamilton was able to
     determine that Appellant was travelling at 50 miles per hour,5 well
     above the posted speed limit of 35 miles per hour. Detective
     Hamilton testified that Appellant would not have been able to
     observe beyond the crest of the hill on which he drove, and that
     potential pedestrians or stopped cars would have been at risk due
     to Appellant’s driving.     This [c]ourt found the Sergeant’s
     testimony credible and the violations significant, as Appellant’s
     actions put anyone on the road with him at risk for great harm.
     Based on the totality of the circumstances,7 this [c]ourt did not
     err on denying the motion to suppress.
        4 Appellant’s argument that Careless Driving applies only to
        roadways or highways and not to trafficways is of no
        moment as the Sergeant testified to numerous vehicular
        infractions on Steubenville Pike, a roadway or highway,
        which would constitute Careless Driving.
        5An officer may testify to her or his estimate of a vehicle’s
        speed. Commonwealth v. Martorano, 563 A.2d 1229 (Pa.
        Super. 1989).
        7 Contrary to the assertions of Appellant, this [c]ourt relied
        upon the evidence listed above and not alleged additional
        violations of the Vehicle Code not considered by the
        Sergeant and not charged by the Commonwealth.

TCO at 5-6 (footnote omitted).

     Appellant first argues that the trial court should not have considered any

potential violations that occurred while he was driving in the parking lot.


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However, the trial court clearly asserts, above, that it would have found

probable cause to stop Appellant for careless driving absent those violations.

Accordingly, we need not reach that question in this case, and we will analyze

the trial court’s probable cause determination based solely on the conduct

observed by Sergeant Hamilton after Appellant exited the parking lot.

       Next, Appellant contends that the Commonwealth offered insufficient

evidence of speeding. See Appellant’s Brief at 15-17. As we discussed, supra,

Appellant’s reliance on Section 3368 is misplaced in the context of careless

driving. Moreover, Appellant’s reliance on Section 3368, and his invocation of

the term “sufficiency,” are improper in the context of a probable cause

determination. Probable cause does not require a showing of proof beyond a

reasonable doubt, nor even the proof required to establish a prima facie case.

See Thompson, supra. All that is required for a showing of probable cause

is some probability of criminal conduct.     Id.   Here, Sergeant Hamilton’s

estimation of Appellant’s speed adequately demonstrated a probability that

Appellant exceeded the posted speed limit for purposes of demonstrating

whether, in the totality of the circumstances, Appellant was engaged in

careless driving.

       Next, Appellant argues that there was no evidence suggesting that other

vehicles or pedestrians were on the road when Sergeant Hamilton stopped

him.   See Appellant’s Brief at 17-18.   The trial court suggested, as noted

above, that based on testimony it elicited from Sergeant Hamilton, Appellant’s

driving presented a risk to anyone who may have been over the crest of the

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hill near where Appellant was stopped. For the following reasons, we need

not address the merits, or lack therefore, of the trial court’s hill crest theory.

       Appellant does not cite to any case law directly stating that one cannot

commit the offense of careless driving unless there are other drivers or

pedestrians in the vicinity of where the alleged offense occurred. Indeed, the

statute itself cannot be reasonably read to exclude the careless driver as one

of the persons who might be endangered.4           Thus, even in the absence of the

trial court’s hill crest theory, it is obvious from the circumstances of this case

that at least two persons were potentially endangered by Appellant’s careless

driving: Appellant and Sergeant Hamilton. This argument lacks merit.

       Appellant also asserts that the lane violations were too minor to justify

a stop for careless driving, citing Commonwealth v. Gleason, 785 A.2d 983,

988 (Pa. 2001). On its face, this claim is not meritorious. The trial court did

not determine that Sergeant Hamilton possessed probable cause to stop

Appellant for careless driving based solely on Appellant’s lane violations.

       Gleason is factually distinguishable from this matter. In that case, the

driver crossed the fog line on a few occasions over a short distance. Here,

not only did Appellant cross the fog line twice, he also crossed the centerline

with both tires, and was travelling in excess of the posted speed limit.
____________________________________________


4 It would have been easy enough to include the term “other” before the
phrase “persons or property,” if the legislature intended to limit the scope of
the statute in that fashion. Furthermore, in Commonwealth Lindblom, 854
A.2d 604, 608 (Pa. Super. 2004), this Court indicated that motorists could be
stopped for reckless driving even when it was only their own safety that was
at risk.

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Moreover, crossing the centerline presents a significantly higher risk than

crossing a fog line, especially when travelling at fast speeds.     Appellant’s

citation to Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2004), is

also unconvincing, as that case involved only two minor crossings of the fog

line, and no evidence of speeding or crossing the centerline.         Likewise,

Appellant’s citation to Lindblom is unavailing. Appellant misquotes this Court

as having asserted “a motorist cannot be stopped for crossing the center line

or the fog line multiple times unless there is evidence that the driving created

a safety hazard.” Lindblom, 854 A.2d at 607. However, our review of that

case reveals that the above-quoted statement was from the trial court.

Indeed, this Court overturned the trial court’s suppression order in Lindblom,

and expressly rejected the above-quoted statement, when we determined:

“[W]hile opposing traffic may not have been present during the entire time

[the witness] observed [Lindblom] driving, we note that a motorist may be

stopped for reckless driving even if the only concern is for the motorist’s own

safety.” Id. at 608. Thus, Lindblom stands for precisely the opposite legal

conclusion than Appellant suggests.

      In sum, we do not find merit to any of the sub-claims presented in

Appellant’s challenge to the trial court’s suppression order. Furthermore, we

agree with the trial court that Sergeant Hamilton possessed probable cause to

stop Appellant for careless driving, based on his observations that Appellant,

while driving at night, crossed both the fog and centerlines while driving in

excess of the posted speed limit.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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