J-S22044-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SEAN DAVID O’CONNER, :
:
Appellant : No. 1148 MDA 2015
Appeal from the Judgment of Sentence June 18, 2015
in the Court of Common Pleas of Adams County,
Criminal Division, at No(s): CP-01-CR-0000828-2014
BEFORE: MUNDY, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 11, 2016
Sean David O’Conner (Appellant) appeals from the judgment of
sentence imposed following his conviction for driving under the influence of
alcohol (DUI). We affirm.
The trial court summarized the relevant factual history of this matter
as follows.
In the early morning hours of June 28, 2014, Trooper
Lasher, of the Pennsylvania State Police, was on patrol in full
uniform and driving a marked police vehicle. Trooper Lasher was
on duty with Trooper Eric Stuby. Trooper Stuby was operating
the patrol vehicle and Trooper Lasher was riding in the front
passenger seat. At approximately 1:25 a.m. the Troopers were
riding on State Route 97 traveling northbound. Beginning a
couple miles prior to the interchange of State Route 97 and
State Route 15 the Troopers were following a 1992 purple Jeep
Cherokee. While following the Jeep Cherokee northbound on
State Route 97, the Troopers observed the Jeep Cherokee
weaving within its lane of travel, but did not observe any erratic
driving or speeding by the operator of the Jeep Cherokee.
*Retired Senior Judge assigned to the Superior Court.
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Along the stretch of road, approximately two miles from
where the Troopers began following the Jeep Cherokee, State
Route 97 has one northbound lane and one southbound lane
divided by a double yellow centerline. The State Route 97 road
dynamics change upon approach to the interchange with State
Route 15. State Route 15 is a four-lane highway which passes
underneath State Route 97. In the area of the interchange State
Route 97 northbound changes from one lane to, initially, three
lanes, then two lanes before returning to a single northbound
lane on the northern side of the interchange. Specifically, at the
area of the interchange the lane which was northbound State
Route 97 prior to the interchange becomes a left turning lane
onto the onramp for State Route 15 southbound. The middle
lane is a single lane proceeding straight through the interchange.
The right hand lane is a third lane which is for right hand turns
to proceed onto the onramp for State Route 15 northbound.
Upon reaching the bridge over State Route 15 a vehicle
intending to continue through the interchange and proceed
northbound on State Route 97 is required to change from what
was the northbound lane, and which becomes the left turn lane
at the area of the interchange, into the center lane in order to
continue straight on State Route 97 northbound. At the
interchange there is a white turn arrow painted on what was the
northbound lane to indicate that it has changed into a left turn
lane onto State Route 15 southbound. There are also overhead
signs indicating the purpose of each of the three different lanes.
After crossing the bridge over State Route 15, at the area where
the left turn lane onto State Route 15 ends and vehicles enter on
State Route 97 from the State Route 15 southbound off ramp
there are no markings on the road surface.
As the Troopers followed the Jeep Cherokee, which
maintained its course of travel in its original lane across the
bridge, the Cherokee changed lanes moving one lane to the right
in order to continue proceeding northbound on State Route 97
when the left turn lane onto State Route 15 southbound ended.
The operator of the 1992 purple Jeep Cherokee failed to signal
the lane change prior to making his change of lanes. The
Troopers did not immediately effectuate a traffic stop but rather
continued following the Jeep Cherokee northbound on State
Route 97 for approximately one and a half to two additional
miles. During the additional distance traveled the Troopers
observed the vehicle continuing to weave within its lane of travel
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but never touching or crossing over the double yellow centerline
or white fog line. After continuing to follow the vehicle for that
one and half to two mile distance the Troopers effectuated a
motor vehicle stop for the previously observed motor vehicle
code violation, specifically failing to signal a lane change, in
violation of Section 3334(a) of the Pennsylvania Motor Vehicle
Code.
Upon approaching the Jeep Cherokee, the Troopers
identified the Appellant as the operator of that motor vehicle.
Troopers informed Appellant the purpose of the stop was
because the Troopers witnessed Appellant correcting his lane of
travel at the 97/15 interchange without the use of a turn signal.
During Trooper Lasher’s interaction with Appellant he observed
signs of intoxication such as glassy and bloodshot eyes along
with the odor of alcoholic beverages emanating from his breath.
Trooper Lasher then asked Appellant to exit the vehicle and
submit to field sobriety tests. Appellant was asked to perform
the walk and turn test and the one-leg stand test[.] Appellant
showed signs of intoxication during each. At which time, Trooper
Lasher placed Appellant under arrest for suspicion for driving
under the influence of alcohol and placed him in the back of the
patrol unit. To save the Appellant a tow bill, the Troopers called
Appellant’s mother and step-father to pick up the vehicle and
pick him up from the hospital. It took [] Appellant’s parents
approximately 25-30 minutes to arrive on scene. At that time
the Troopers took [] Appellant to the hospital. The Troopers
arrived with [] Appellant at the hospital at approximately 2:08 in
the morning. Appellant was then read his DL-26, an implied
consent warning, which Appellant then signed and dated.
Trooper Lasher noted the time that the DL-26 was read and
signed by Appellant was 2:12 a.m. Trooper Lasher again
indicated on the DL-26 the time in which the blood was drawn,
2:19 a.m. [The test revealed that Appellant had a blood alcohol
concentration (BAC) of at least .10% but less than .16% within
two hours after operating a motor vehicle.] Appellant was
charged with [DUI - general impairment, DUI - high rate of
alcohol], failure to keep right, disregard traffic lane (single),
turning movements and required signals, [and] careless driving.
Trial Court Opinion, 8/21/2015, at 1-3 (footnotes and unnecessary
capitalization omitted).
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Appellant filed an omnibus pre-trial motion to suppress, which was
denied following a hearing on March 13, 2015. The matter proceeded to a
non-jury trial on April 8, 2015. Prior to the beginning of trial, the court
granted the Commonwealth’s request to withdraw Count I, DUI - general
impairment and the summary motor vehicle offenses. The Commonwealth
proceeded to trial on Count 2, DUI - high rate of alcohol. At the conclusion
of trial, the court found Appellant guilty.
Appellant’s conviction was his third DUI offense for sentencing
purposes. Accordingly, on June 18, 2015, Appellant was sentenced to 60
months of intermediate punishment. Appellant timely filed a notice of
appeal. Both Appellant and the trial court complied with the mandates of
Pa.R.A.P. 1925.
On appeal, Appellant asks us to consider whether the trial court erred
“in finding that an investigatory stop based on admitted pretext did not
violate Appellant’s privacy guarantees under Article I, Section 8 of the
Pennsylvania Constitution.” Appellant’s Brief at 4.
We address Appellant’s claim mindful of our standard of review.
[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
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
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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. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015)
(citation omitted).
Appellant argues that the motor vehicle stop was pretextual and
contends that the Troopers used “a de minimus (and non-[investigable])
offense [to] stop [Appellant’s] vehicle for the purpose of furthering an
investigation into a more serious crime for which they [did] not have
probable cause.” Appellant’s Brief at 10 (emphasis in original). In support of
his argument, Appellant cites to a portion of the suppression hearing
transcript where, on cross-examination, Trooper Lasher agreed with defense
counsel that the “purpose of the stop was an investigatory stop for purposes
of determining whether [Appellant] was [DUI].” Id. at 30. Appellant
contends that the Trooper’s statement contradicts the stated reason for the
stop, violation of 75 Pa.C.S. § 3334, related to use of turn signals, and
demonstrates that the Trooper “used administrative authority as a pretext to
conduct further investigation into a possible DUI for which there was no
evidence.” Id. at 30-31.
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We begin by examining the quantum of suspicion required to
effectuate a stop under section 3334. It is well-settled 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. § 6308(b). However, if the violation is such that it requires no
additional investigation, the officer must have probable cause to initiate the
stop. Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010).
Instantly, Trooper Lasher testified that he stopped Appellant for
“improper lane change and not using the turn signal” at the 97/15
interchange. N.T., 2/17/2015, at 8-9. As further investigation would not help
to establish whether Appellant committed the above offenses, Trooper
Lasher was required to have probable cause to initiate the stop.
“The police have probable cause where the facts and circumstances
within the officer’s knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being
committed. We evaluate probable cause by considering all relevant facts
under a totality of circumstances analysis.” Commonwealth v. Hernandez,
935 A.2d 1275, 1284 (Pa. 2007) (quotation and citations omitted).
The statute governing use of signals provides in pertinent part as follows.
§ 3334. Turning movements and required signals
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(a) General rule.—Upon a roadway no person shall turn a
vehicle or move from one traffic lane to another or enter the
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. § 3334.
Trooper Lasher directly observed Appellant’s failure to use a turn
signal during a lane change; accordingly, he possessed facts that would lead
a reasonable person to conclude that a violation of the motor vehicle code
had occurred and was justified in effectuating the stop. Hernandez, 935
A.2d at 1284. Thus, the trial court did not err in denying Appellant’s motion
to suppress.
Moreover, contrary to Appellant’s argument, the Pennsylvania
constitution does not prevent the police from “stopping and questioning
motorists when they witness or suspect a violation of traffic laws, even if it is
a minor offense.” Commonwealth v. Chase, 960 A.2d 108, 113 (Pa.
2008). Having determined that the Troopers had probable cause to stop
Appellant’s vehicle, the fact that he was later determined to be DUI is
immaterial to the constitutionality of the initial stop. Additionally, Trooper
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Lasher’s belief that Appellant was DUI did not somehow prevent the Trooper
from stopping Appellant where he had probable cause to do so based on an
observed violation of the motor vehicle code.1 Accordingly, we reject
Appellant’s argument that the stop was invalid as pretextual.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
1
Appellant’s failure to use a turn signal, coupled with the time of night and
his repeated weaving in his lane of travel, provided the Troopers with
reasonable suspicion that Appellant was DUI. Accordingly, the Troopers
would have been justified in pulling Appellant over to investigate further.
See Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)
(upholding a traffic stop for DUI based on reasonable suspicion where the
trooper “testified that the basis for the traffic stop was because [Feczko] was
‘weaving within his lane and also crossed out of his lane of travel on
numerous occasions.’”).
2
Additionally, we find unavailing Appellant’s reliance on Commonwealth v.
Lehman, 857 A.2d 686 (Pa. Super. 2004). Lehman is readily
distinguishable from the case at bar as it involved a stop predicated on a tip
from an unknown third party, not a direct observation of a motor vehicle
code violation by a law enforcement officer.
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Com. v. O'Conner, S.
Combined Opinion