Com. v. Able, N.

J. A27003/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
NATHAN BALBOA ABLE, : No. 1925 WDA 2013
:
Appellant :

Appeal from the Judgment of Sentence, November 20, 2013,
in the Court of Common Pleas of Fayette County
Criminal Division at No. CP-26-CR-0001642-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 03, 2014

Appellant appeals from the judgment of sentence, challenging the

original ruling of the suppression court which denied suppression.1 We note

that the court below entered an opinion on January 14, 2014 stating that its

original decision was in error and asking this court to reverse its decision.

Finding that suppression should have been granted, we reverse the

suppression ruling and vacate the judgment of sentence.

We begin our factual history by presenting the findings of fact by the

trial court:

1. In the early morning hours of May 12, 2012,
Trooper Anthony Demarche was on patrol near

1
Appellant’s notice of appeal purported to appeal from the April 12, 2013
order denying suppression. The appeal properly lies from the judgment of
sentence.
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the Borough of Vanderbilt. N.T., 2/12/13, at
6-7.

2. As the Trooper proceeded on State Route 201,
he observed a silver Chrysler 300C Sedan
proceeding in the same direction and directly
in front of his vehicle. Id. at 7-8.

3. Following the Chrysler, he observed it drifting
within its lane. Id. at 8.

4. Additionally, within a distance of two to three
miles, the Trooper observed the vehicle drift
across the fog line in its lane on five occasions.
Id. at 8-9.

5. This occurred on a clear night on or about 2:44
am. Id. at 8.

6. After these observations, the Chrysler being
operated by Appellant was stopped. Id. at 9.

7. The Petition for Writ of Habeas Corpus was
withdrawn by Appellant at the time of the
hearing. Id. at 11.

8. The Commonwealth did not offer any evidence
of other vehicles on the roadway, or any
evidence that Appellant's driving was erratic or
unsafe.

9. The testimony of Trooper Demarche was
credible.

10. Trooper Demarche failed to point to specific
and articulable facts that would warrant the
traffic stop.

Trial court opinion, 1/14/14 at 1-2.

After appellant was stopped, Trooper Demarche detected a strong odor

of alcohol in appellant’s vehicle. (Notes of testimony, 11/19/13 at 6.)

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Appellant had bloodshot eyes and slurred his speech. (Id.) Field sobriety

tests were conducted, and upon determining that appellant was under the

influence of alcohol, appellant was arrested. (Id. at 7-8.) Appellant was

taken to a hospital, a blood test was performed, and appellant’s blood

alcohol content was determined to be .187. (Id. at 8-9.)

On November 13, 2012, appellant filed an omnibus pretrial motion

challenging the constitutionality of his vehicle stop and requesting the court

to suppress all evidence arising therefrom. On April 12, 2013, the motion to

suppress was denied. On November 19, 2013, following a bench trial,

appellant was found guilty of driving under influence of alcohol or controlled

substance (general impairment), driving under influence of alcohol or

controlled substance (highest rate of alcohol), and driving on roadways

laned for traffic.2 On November 20, 2013, the court entered its order

sentencing appellant to 23 months’ intermediate punishment with the first

180 days on house arrest, plus various fines, fees, and costs. This timely

appeal followed. Appellant raises the following issues on appeal:

I. Whether the suppression court erred when it
held that probable cause and/or reasonable
suspicion existed to warrant a traffic stop of
the Appellant's vehicle for a violation of
75 Pa.C.S. § 3309(1)?

II. Whether the testimony offered by Trooper
Demarche at the Omnibus Pretrial Motion
hearing is supported by the objective evidence

2
75 Pa.C.S.A. §§ 3802(a)(1); 3802(c); and 3309(1), respectively.

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presented on the DVD of the dashboard video
that recorded the entire incident in question?

Appellant’s brief at 5.

We find merit in appellant’s first issue; consequently we need not

address appellant’s second issue. We begin our analysis with our standard

of review:

The standards governing a review of an order
denying suppression motion are well settled:

We are limited to determining whether
the lower court's factual findings are
supported by the record and whether the
legal conclusions drawn therefrom are
correct. We may consider the evidence
of the witnesses offered by the
Commonwealth, as verdict winner, and
only so much of the evidence presented
by [the] defense that is not contradicted
when examined in the context of the
record as a whole. We are bound by
facts supported by the record and may
reverse only if the legal conclusions
reached by the court were erroneous.

Commonwealth v. Landis, 89 A.3d 694, 702 (Pa.Super. 2014), quoting

Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super. 2010)

(en banc) (citation omitted), appeal denied, 25 A.3d 327 (Pa. 2011).

We must first determine whether the police needed reasonable

suspicion or probable cause to support the vehicle stop that occurred

instantly. In Feczko, this court examined the interplay of 75 Pa.C.S.A.

§ 6308(b), which provides the authority for a police officer to engage in a

vehicle stop, and which requires only reasonable suspicion of a Vehicle Code

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violation to justify a stop, and constitutional concerns requiring probable

cause. The Feczko court ultimately concluded:

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.”

Feczko, 10 A.3d at 1291.

Thus, where a police officer observes a driver briefly cross into another

traffic lane, if the officer stops the motorist for a violation of 75 Pa.C.S.A.

§ 3309(1), driving on roadways laned for traffic, the officer must have

probable cause because the stop is being effected for the observed offense

and not for the purpose of further investigation. However, if upon

observance of the same behavior the officer stops the driver on suspicion of

a violation of 75 Pa.C.S.A. § 3802, driving under the influence of alcohol or

controlled substance, the officer needs only reasonable suspicion because

the purpose of the stop is for further investigation. Under Feczko,

reasonable suspicion will support only a Terry stop for further

investigation;3 but where no further investigation is needed, the stop may be

justified only by probable cause.

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

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At the suppression hearing and at trial, Officer Demarche testified but

did not articulate for which particular violation of the Vehicle Code he

decided to stop appellant. He described appellant as crossing the fog line

along the side of the road five times over a distance of two to three miles.

However, Officer Demarche did not testify that he suspected at that time

that appellant was driving under the influence of alcohol. Thus, it does

appear Officer Demarche was stopping appellant for a violation of driving on

roadways laned for traffic, which violation required no further investigation

and for which the officer would thus need probable cause under Feczko.4

Under the facts of this case, we find that Trooper Demarche was

without probable cause to stop appellant’s vehicle. We are guided by

Commonwealth v. Gleason, 785 A.2d 983 (Pa. 2001),5 which exhibited a

similar fact pattern:

On July 21, 1998, in the early morning hours,
Officer Guy Rosato of the Westtown East Goshen
Police Department was on patrol traveling westbound
on the West Chester Pike, a/k/a Route 3, in East

4
We note that the trial court determined that a reasonable suspicion
standard applied here. (Trial court opinion, 1/14/14 at 2-3.) We also note
that even employing that more relaxed standard, the trial court still found
that the police here presented insufficient specific and articulable facts to
justify the stop.
5
We observe that subsequent case law has noted that the probable cause
standard employed by the Gleason court was subsequently superseded by
75 Pa.C.S.A. § 6308(b), which required only reasonable suspicion.
Commonwealth v. Smith, 917 A.2d 848, 850 (Pa.Super. 2007). As our
prior discussion indicated, however, case law subsequent to Smith, such as
Feczko, re-imposes the probable cause standard under the circumstances
appertaining herein.

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Goshen Township. The West Chester Pike is a four
lane divided highway. Officer Rosato noticed a gray
Mazda approximately eight to ten car lengths in front
of him. He followed the vehicle and observed it
cross the solid fog line on two or three occasions
over a distance of approximately one quarter mile.
During the period that Officer Rosato was following
the vehicle, there were no other vehicles on the
roadway. Nevertheless, Officer Rosato decided to
investigate as to the reason for this behavior.

Upon stopping Appellant, Officer Rosato
observed signs of intoxication and performed field
sobriety tests, which Appellant failed. Appellant was
placed under arrest and refused to submit to blood
alcohol testing. Officer Rosato then searched
Appellant and his vehicle and recovered, among
other things, a suspended driver's license, an
uncapped syringe, and a small amount of cocaine.
Appellant was charged with driving under the
influence of alcohol, driving with a suspended
license, careless driving, possession of a controlled
substance, and possession of drug paraphernalia.

Id. at 985. The supreme court held that the vehicle stop was improper and

quoted the language of the trial court:

Given the early morning hour, the fact that there
was no other traffic on the roadway and the rather
momentary nature of defendant's vehicle crossing
the fog line on two perhaps three occasions, the
officer erred in believing he had justification to stop
defendant's vehicle. The observations of Office [sic]
Rosato do not warrant a stop on any cognizable legal
theory.

Id. at 985-986.

Indeed, if we examine the language of the statute at issue it is difficult

to see a violation here:

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Whenever any roadway has been divided into two or
more clearly marked lanes for traffic the following
rules in addition to all others not inconsistent
therewith shall apply:

(1) Driving within single lane.--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.

75 Pa.C.S.A. § 3309(1). Appellant’s brief crossing of the fog line five times

over a distance of two to three miles in the early morning hours with no

other traffic on the road is certainly within the safety deviation permitted by

the statute. We see no violation of the statute and no probable cause to

stop appellant’s vehicle. Consequently, we are constrained to reverse the

ruling of the suppression court and vacate the judgment of sentence.

Order reversed. Judgment of sentence vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014

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