J-S04024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES EMORY SMITH,
Appellant No. 724 MDA 2014
Appeal from the Judgment of Sentence entered April 1, 2014,
in the Court of Common Pleas of Cumberland County,
Criminal Division, at No(s): CP-35-CR-0000688-2013
BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED FEBRUARY 09, 2015
Charles Emory Smith, (“Appellant”), appeals from the judgment of
sentence imposed after the trial court convicted him of two counts of driving
under the influence, one count of habitual offender, one count of driving
while his operating privileges were suspended, one count of unlawful
activities, and one count of operating a vehicle without an official certificate
of inspection.1 We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
____________________________________________
1
75 Pa.C.S.A. §§ 3802(a)(1), (a)(2), 6503.1, 1543(b)(1), 4107(b)(2) and
4703(a).
*Retired Senior Judge assigned to the Superior Court.
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On Sunday, November 4, 2012, at approximately 1:30
a.m., [Appellant] was travelling eastbound on Trindle Road in
Cumberland County, Pennsylvania. Trooper Michael Burns was
travelling westbound on Trindle Road that night. Trooper Burns
has been a member of the Pennsylvania State Police since 1999
and has extensive training in DUI recognition, investigation, and
enforcement. Trooper Burns has previously made over 50 DUI
arrests in this area of Trindle Road.
As he was travelling west on Trindle Road, Trooper Burns
observed that [Appellant’s] vehicle had illuminated windshield
wiper washer nozzles on the hood of the vehicle. Trooper Burns
knew that the illuminated windshield wiper washer nozzles
constituted an equipment violation under the Pennsylvania
Vehicle Code and the Pennsylvania Vehicle Inspection
Requirements. Trooper Burns also knew that illuminated
windshield wiper washer nozzles are not standard equipment on
a 1990 Mazda Miata. Trooper Burns then immediately turned his
patrol vehicle around and proceeded eastbound behind
[Appellant’s] vehicle with the intent to stop [Appellant’s] vehicle
and cite him for the equipment violation.
As he began following [Appellant], Trooper Burns observed
the vehicle continuously drift from side to side in his lane of
traffic. [Appellant] did not cross the center line or the fog line,
but he would drive onto the lines. On one occasion,
[Appellant’s] vehicle drifted toward the path of an oncoming
westbound vehicle. This incident was recorded on Trooper
Burns’ motor vehicle recorder. Trooper Burns then made a stop
of [Appellant’s] vehicle and [Appellant] was subsequently
charged with the above-captioned offenses.
[Appellant] filed an Omnibus Pretrial Motion on July 26,
2013. [Appellant] sought to suppress any evidence obtained
from the traffic stop, arguing that there was not probable cause
or reasonable suspicion to effectuate the traffic stop. A hearing
on [Appellant’s] Omnibus Pretrial Motion was held on October
24, 2013. [Appellant’s] motion was denied on November 5,
2013.
Trial Court Opinion, 6/4/14, at 2-3 (footnote omitted).
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A non-jury trial commenced on February 25, 2014, at the conclusion of
which the trial court found Appellant guilty of the aforementioned crimes.
On April 1, 2014, the trial court sentenced Appellant to a term of
imprisonment of 13 to 33 months. This appeal followed. Appellant complied
with the trial court’s directive to file a concise statement of errors
complained of on appeal, and on June 4, 2014 and June 10, 2014, the trial
court entered two opinions pursuant to Pa.R.A.P. 1925(a), separately
addressing Appellant’s two claims.
Appellant presents the following issues for our review:
I. WHETHER A NEW TRIAL IS WARRANTED AFTER DENIAL OF
A SUPPRESSION MOTION WHERE THE COMMONWEALTH
DID NOT ESTABLISH DURING THE HEARING THE
ELEMENTS OF THE OFFENSE WHICH FORMS THE BASIS OF
THE TRAFFIC STOP?
II. WHETHER DESPITE A SUFFICIENTLY LENGTHY DRIVING
RECORD TO BE CONVICTED AS A MISDEMEANOR 2
“HABITUAL OFFENDER,” THE TRIAL COURT ERRED BY SO
CONVICTING APPELLANT WHEN HE HAD NOT BEEN
DESIGNATED ADMINISTRATIVELY AS SUCH BY PENNDOT
PRIOR TO THE INSTANT ARREST?
Appellant’s Brief at 6.
In his first issue, Appellant challenges the denial of his suppression
motion.
Our standard of review of a denial of suppression is whether the
record supports the trial court's factual findings and whether the
legal conclusions drawn therefrom are free from error. Our
scope of review is limited; we may 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
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as a whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the court erred in reaching its legal conclusions based
upon the facts.
Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)
(citations omitted). “It is within the suppression court's sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
to their testimony. The suppression court is free to believe all, some or
none of the evidence presented at the suppression hearing.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003)
(citations omitted). However, the suppression court's conclusions of law,
which are not binding on an appellate court, are subject to plenary review.
Commonwealth v. Johnson, 969 A.2d 565, 567 (Pa. Super. 2009)
(citations omitted).
Here, Appellant argues that the trial court erred in denying his
suppression motion because the Commonwealth failed to meet its burden of
proving, by a preponderance of the evidence, that Appellant violated the
Vehicle Code. Appellant’s Brief at 14-25. Trooper Burns stopped Appellant
for a suspected violation of 67 Pa.Code § 175.66(h), which pertains to
vehicle lighting and electrical systems, and precludes certain ornamental
lamps, unless they are available as “original equipment” on the vehicle.
Appellant argues that the Commonwealth failed to demonstrate that the
illuminated windshield wiper nozzles on Appellant’s vehicle were not “original
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equipment.” Appellant’s Brief at 14-15. Appellant asserts that, absent any
evidence as to whether or not the illuminated nozzles were an original
component of Appellant’s car, the Commonwealth failed to demonstrate that
Trooper Burns possessed probable cause to believe that Appellant had
violated 67 Pa.Code § 175.66(h). We disagree.
In order to effectuate a valid traffic stop, Trooper Burns was required
to possess probable cause to believe that a Vehicle Code violation had
occurred.2 “There is a clear distinction between what is required for
purposes of establishing probable cause for a warrantless arrest or search
and what is required for proving guilt. The arresting officer need not have
had in hand evidence which would suffice to convict as it is only the
probability, and not a prima facie showing of criminal activity, that is the
standard for justifying arrest. The probable cause necessary to support an
arrest . . . cannot demand the same strictness of proof as the accused's guilt
upon a trial...” Commonwealth v. Anderson, 302 A.2d 504, 506 (Pa.
Super. 1973).
____________________________________________
2
See Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)
(en banc) (“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.’”).
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In the present case, Trooper Burns testified that based on his training
and experience, he believed that illuminated wiper nozzles were not original
equipment on Appellant’s 1990 Mazda Miata, and that the illuminated
nozzles violated the Pennsylvania regulations pertaining to ornamental
lamps. N.T., 10/24/13, at 8, 14. See 97 Pa.Code § 175.66(h). Trooper
Burns testified that in the past he had issued citations with regard to
violations of the “ornamental lamps” regulation “well in excess of a dozen
times”, and that he believed Appellant’s illuminated nozzles constituted such
a violation. We agree with the trial court that under the totality of the
circumstances, the facts articulated by Trooper Burns were sufficient to
provide probable cause to support the traffic stop. Although Appellant
argues that Trooper Burns presented no direct evidence to confirm that the
illuminated wiper nozzles were not original equipment on Appellant’s 1990
Mazda Miata, we reiterate that Trooper Burns was not required to provide
evidence sufficient to sustain a conviction, but only to establish probable
cause to believe that a Vehicle Code violation was occurring. “Probable
cause means only the probability and not a prima facie showing of criminal
activity [and] is less than evidence which will justify a conviction.”
Commonwealth v. Canning, 587 A.2d 330, 332 (Pa. Super. 1991)
(emphasis and citations omitted). Because our review of the record
supports the trial court’s determination that Trooper Burns possessed the
requisite probable cause to believe that Appellant was violating the
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“ornamental lamps” prohibition to justify the stop of Appellant’s vehicle, we
find no error in the trial court’s denial of Appellant’s suppression motion.
Appellant next argues that the trial court erred when it found him
guilty of violating 75 Pa.C.S.A. § 6503.1 pertaining to habitual offenders,
when he had not been designated administratively as a habitual offender by
the Pennsylvania Department of Transportation (“PennDot”) prior to trial.
Appellant’s Brief at 26-28. Specifically, Appellant argues that the trial court
was without authority to convict him under § 6503.1 because it was solely
the function of PennDot to designate him as a “habitual offender”, and the
trial court could not usurp PennDot’s authority. Id. We find no merit to this
claim.
Appellant was convicted under 75 Pa.C.S.A. § 6503.1, which provides:
A habitual offender under section 1542 (relating to revocation of
habitual offender's license) who drives a motor vehicle on any
highway or trafficway of this Commonwealth while the habitual
offender's operating privilege is suspended, revoked or canceled
commits a misdemeanor of the second degree.
Section 1542 of the Vehicle Code, which defines the term “habitual offender”
reads in pertinent part:
(a) General rule.--The department shall revoke the operating
privilege of any person found to be a habitual offender
pursuant to the provisions of this section. A “habitual
offender” shall be any person whose driving record, as
maintained in the department, shows that such person has
accumulated the requisite number of convictions for the
separate and distinct offenses described and enumerated
in subsection (b) committed after the effective date of this
title and within any period of five years thereafter.
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(b) Offenses enumerated.--Three convictions arising from
separate acts of any one or more of the following offenses
committed by any person shall result in such person being
designated as a habitual offender:
(1) Any violation of Subchapter B of Chapter 37 (relating
to serious traffic offenses).
(1.1) Any violation of Chapter 38 (relating to driving after
imbibing alcohol or utilizing drugs) except for
sections 3808(a)(1) and (b) (relating to illegally
operating a motor vehicle not equipped with ignition
interlock) and 3809 (relating to restriction on
alcoholic beverages).
(1.2) Any violation of section 1543(b)(1.1) (relating to
driving while operating privilege is suspended or
revoked).
(2) Any violation of section 3367 (relating to racing on
highways).
(3) Any violation of section 3742 (relating to accidents
involving death or personal injury).
(3.1) Any violation of section 3742.1 (relating to accidents
involving death or personal injury while not properly
licensed).
(4) Any violation of section 3743 (relating to accidents
involving damage to attended vehicle or property).
(emphasis added).
Appellant does not argue that he lacks the prior convictions necessary
to designate him as a habitual offender. Rather, Appellant argues that
because, at the time of trial, PennDot had not revoked his license for being a
habitual offender under section 1542, the trial court was precluded from
convicting him as a habitual offender under section 6503.1.
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Section 1542 defines a habitual offender as “any person whose driving
record, as maintained in the department, shows that such person has
accumulated the requisite number of convictions....” Here, the trial court
found, and Appellant does not dispute, that he incurred the requisite number
of prior convictions. As the trial court explained:
[Regardless of] whether [Appellant] was labeled, notified,
declared or forced to wear a scarlet “H.O.,” [Appellant’s] 22 page
driving record makes it abundantly clear that [Appellant] was, is,
and perhaps ever shall be an habitual offender.
***
[Appellant] was labeled, designated and notified that he was
an habitual offender five times under the 1976 statute. After the
statute was amended in 1994 (which essentially reset the clock)
[Appellant] incurred the following convictions from “separate
acts” within a five year period:
1. Driving Under the Influence: violation date – June
16, 2000; conviction date – November 7, 2001.
2. Driving Under the Influence: violation date –
September 9, 2000; conviction date – November 7,
2001.
3. Driving Under Suspension (DUI related): violation
date – October 19, 2005; conviction date – October
21, 2005.
4. Driving Under the Influence: violation date – May
22, 2004; conviction date – July 17, 2006.
Noteworthy, [Appellant] received an additional conviction
for Driving Under Suspension (DUI related), on September 21,
2011, which, pursuant to § 1542(e) resulted in an additional
period of suspension for two years. This final suspension is
effective on March 7, 2029.
If [Appellant] has no further infractions, he will be eligible
to receive his license in March of 2031, approximately six
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months shy of his 80th birthday. Lest anyone celebrate
prematurely, we note that [Appellant] has never been deterred
from driving by the mere fact that he has been unlicensed.
Thus, we hold out no hope that any sentence imposed by this
court or suspension imposed by the Pennsylvania Department of
Transportation will have any impact on [Appellant’s] driving
behaviors.
[Pursuant to 75 Pa.C.S.A. § 6503.1] it is not necessary ...
for the offense to occur during a period when his license is
suspended for being an habitual offender. Rather, the
Commonwealth need prove merely that [Appellant] operated a
motor vehicle in the Commonwealth while his license was
suspended, revoked, or cancelled for any reason, and that he did
so after racking up the necessary convictions under § 1542(b).
We are satisfied that the Commonwealth met this burden.
Trial Court Opinion, 6/10/14, at 1-3.
We agree with the trial court that Appellant met the requirements for
designation as a habitual offender as defined in Section 1542 by virtue of
his prior convictions. See Commonwealth v. Raven, 97 A.3d 1244, 1252
(Pa. Super. 2014) (“A conviction for habitual offenders requires the
Commonwealth to demonstrate that a person has accumulated three
separate convictions for serious traffic offenses within a five-year period.”).
We thus find no error by the trial court.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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Com. v. Smith, C.
Combined Opinion