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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
VITALIJ KUPRIJ
No. 2100 MDA 2015
Appeal from the Order Entered November 2, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s): CP-06-CR-0003110-2015
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016
The Commonwealth appeals from the order entered in the Berks
County Court of Common Pleas granting Appellee Vitalij Kuprij’s motion for
suppression of evidence and motion for writ of habeas corpus. The
Commonwealth contends that Appellee’s erratic driving created reasonable
suspicion and/or probable cause to believe that he might be driving while
under the influence. We affirm.
We glean the facts from the omnibus pretrial hearing. Trooper
Thomas Moran testified for the Commonwealth. R.R. at 27a.1 On March 22,
*
Former Justice specially assigned to the Superior Court.
1
For the parties’ convenience, we refer to the reproduced record where
applicable.
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2015, at approximately 2:28 a.m., he was patrolling State Route 12 in Berks
County. Id.
[The Commonwealth]: And did you notice anything that
brings you to court today?
A: I observed a silver-colored Celica traveling westbound
in front of me weaving in the lane of travel.
Q: When you say weaving - - -
A: It was traveling in the right lane. It was moving from
right to left. It caught my eye. As I continued to follow
the vehicle, the driver’s side tires crossed over to the left
over the broken center line. And as we continued to travel
further west past the exit for 183, the passenger side tires
crossed over and touched the white fog line. And as we
continued onto 222 South and it’s 422 west, he was in the
center lane, and the vehicle moved from the─drifted to the
left. The driver’s side tires crossed over into the left lane.
And as it crossed over, it straddled the line. That is when
he activated his turn signal. That is when I decided I
had enough probable cause from the turn signal
violation to initiate a traffic stop.
Q: Now, the vehicle you were driving in that evening, is it
equipped with a camera?[2]
A: Yes, ma’am.
Q: And was the camera on and operable on that evening?
2
A video recording from the camera was attached to Appellant’s brief. See
Commonwealth’s Brief at App. C. We note that it was not in the certified
record on appeal. “While this Court generally may only consider facts that
have been duly certified in the record, where the accuracy of a document is
undisputed and contained in the reproduced record, we may consider it.”
Commonwealth v. Barnett, 121 A.3d 534, 545 n.3 (Pa. Super.) (citation
omitted), appeal denied, 128 A.3d 1204 (Pa. 2015). Appellee does not
dispute its accuracy. See Appellee’s Brief at 10. Therefore, we viewed the
recording. See Barnett, 121 A.3d at 545 n.3.
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A: Yes, ma’am. There was an issue in the beginning of the
video. You will see where the camera came off the mount
off the windshield, and you will see in the beginning I’m
putting it back on the window, back up on the windshield.
Q: Does it remain on your windshield the entire time?
A: When I put it in park for the traffic stop, it came off
again. And at that point, because of officer’s safety, there
were two people in the vehicle that I could see, I just left it
hanging where it was.
Q: But does the camera capture the driver, which you had
observed?
A: Yes, ma’am.
Q: And did you provide a copy of that camera─footage to
the Commonwealth?
A: Yes, ma’am.
* * *
Q: Do you have any experience with the detection of
impaired drivers?
A: Yes, ma’am.
Q: And when you observed the driving, you said
there was also a turn signal violation?
A: Yes, ma’am. When he moved from the center lane to
the left lane, he already started his movement. He
already started a lane change when he tuned his left
turn signal on for a brief moment, but he was
already changing lanes, which is a violation of the
Pennsylvania Vehicle Code.
Id. at 27a-28a (emphases added).
Counsel for Appellant cross-examined Trooper Moran. Id. at 28a.
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[Defense Counsel]: Trooper Moran, would you agree with
me that the video that’s been presented to the Judge
is the entirety of what you’re relying on your
justification to stop this vehicle?
A: Yes.
* * *
Q: . . . The turn that you’re talking about the─this is a
lane change you’re talking about?
A: Yes.
Q: The vehicle never turned off Route 12 when you were
following it?
A: No.
Q: So we’re talking about a lane change?
A: Route 12 goes straight into 222. It turns into 222
southbound, 422 westbound.
Q: The vehicle you were following never exited the
roadway when you were following it?
A: No.
* * *
Q: You would agree with me, would you not, that the video
segment you’re talking about when you are saying a bad
lane turn takes place over two─approximately two seconds
where the vehicle moves briefly in the direction it’s
changing and puts their turn signal on?
A: Yes.
* * *
Q: Trooper, you indicated you were on some kind of
routine patrol that night. Isn’t it a fact that you were on a
special detail looking for DUI’s, a DUI detail, weren’t you?
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A: Yes.
Q: And you would agree with me once the video falls off
the mount shortly before the traffic stop that you did not
observe any conduct that brings us here as the basis for
your traffic stop, is that true?
A: After?
Q: After the video fell down?
A: No.
Q: So we can’t─we can’t assume there is anything else
that you saw?
A: As far as why I made the traffic stop?
Q: Yes.
A: No.
Id. at 28a-29a.
Appellee was charged with driving under the influence (“DUI”), general
impairment incapable of driving safely,3 DUI, highest rate of alcohol,4
disregard traffic lane,5 turning movements and required signals,6
and careless driving.7 Appellee filed an omnibus pretrial motion to suppress.
Following a hearing, the motion was granted. The Commonwealth filed a
3
75 Pa.C.S. § 3802(a)(1).
4
75 Pa.C.S. § 3802(c).
5
75 Pa.C.S. § 3309(1).
6
75 Pa.C.S. § 3334(a).
7
75 Pa.C.S. § 3714(a).
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notice of appeal to this Court, certifying that the ruling terminated or
substantially handicapped the prosecution of this case.8 The Commonwealth
filed a Pa.R.A.P. 1925(b) statement of errors complained of on appeal and
the trial court filed a responsive opinion.9
The Commonwealth raises the following issues for our review:
A. Did Trooper Moran have reasonable suspicion and/or
probable cause to believe that [Appellee] violated two
separate provisions of the motor vehicle code?
B. Did the trial court err in granting the request for a writ
of habeas corpus without permitting the Commonwealth to
appeal from the adverse suppression ruling?
Commonwealth’s Brief at 4.
The Commonwealth contends that
8
In Commonwealth v. Bender, 811 A.2d 1016 (Pa. Super. 2002), this
Court noted
that the Commonwealth has an absolute right of appeal to
the Superior Court to test the validity of a pre-trial
suppression order. Such an appeal is proper as an appeal
from a final order when the Commonwealth certifies in
good faith that the suppression order terminates or
substantially handicaps its prosecution.
Id. at 1018 (quotation marks and citations omitted). Instantly, the
Commonwealth has complied with this procedural requirement, and
therefore the appeal is properly before us. See id.
9
We note that Appellee sent this Court a post submission communication
containing a copy of Commonwealth v. Slattery, ___ A.3d ___, 2016 WL
2848689 (Pa. Super. May 13, 2016). The Commonwealth objected, in a
post submission communication, contending that the copy of the opinion
constituted additional argument. We find no merit to this claim.
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[b]ased upon this record, Trooper Moran had the requisite
reasonable suspicion and/or probable cause to conduct the
traffic stop. Primarily, Trooper Moran was on a roving DUI
patrol when he noticed the Celica that [Appellee] was [sic]
weaving within its lane. The vehicle then traveled over the
center line, over the fog line, and again over the center
line before the traffic stop was initiated. While this might
not rise to the level of probable cause to believe that
[Appellee] violated 75 Pa.C.S.A. § 3309(1),[10] . . . this
erratic driving does create sufficient reasonable suspicion
to believe that [Appellee] might be driving while under the
influence. Thus[,] Trooper Moran possessed the requisite
reasonable suspicion to conduct a further investigation for
driving while under the influence of alcohol or a controlled
substance.
In addition, Trooper Moran had the requisite probable
cause to stop the Celica for the lane change violation. By
its plain language, 75 Pa.C.S.A. §3334(a) and (b) require a
vehicle to signal its intention to change lanes at least 100
feet before actually changing lanes. However, Trooper
Moran clearly saw [Appellee] in the Celica activate its turn
signal after it started changing lanes by moving to the left
and straddling the dashed white line, contrary to the
requirements of the statute.
Commonwealth’s Brief at 11-12 (footnote and some citations omitted).
10
Section 3309(1) provides:
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. § 3309(1).
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Our review is governed by the following principles:
When reviewing an Order granting a motion to suppress
we are required to determine whether the record supports
the suppression court’s factual findings and whether the
legal conclusions drawn by the suppression court from
those findings are accurate. In conducting our review, we
may only examine the evidence introduced by appellee
along with any evidence introduced by the Commonwealth
which remains uncontradicted. Our scope of review over
the suppression court’s factual findings is limited in that if
these findings are supported by the record we are bound
by them. Our scope of review over the suppression court’s
legal conclusions, however, is plenary.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)
(citation omitted).
The Motor Vehicle Code provides:
(b) Authority of police officer.─Whenever a police
officer is engaged in a systematic program of checking
vehicles or drivers or has reasonable suspicion that a
violation of this title is occurring or has occurred, he may
stop a vehicle, upon request or signal, for the purpose of
checking the vehicle’s registration, proof of financial
responsibility, vehicle identification number or engine
number or the driver’'s license, or to secure such other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b). Sections 3334(a) and (b) of the motor vehicle code
provide:
(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.
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(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.
75 Pa.C.S. § 3334(a), (b).
In Slattery, this Court opined:
Instantly, we agree with both [the defendant] and the
trial judge that [the trooper] did not have probable cause
to stop the Durango on the basis that he believed [the
defendant] had violated section 3334 of the vehicle code.
Here, the trooper testified that he stopped [the
defendant’s] Durango because he did not signal at least
100 feet prior to changing lanes. . . . While section
3334(a) provides that a person shall not move from a
traffic lane to another or turn a vehicle without
appropriately signaling of his or her attention to turn, if the
given vehicle is travelling less than 35 m.p.h., the driver
shall appropriately signal “continuously during not less
than the last 100 feet traveled by the vehicle before
turning.” 75 Pa.C.S. § 3334(b). Accordingly, the words
of the statute are clear that the 100–foot rule
applies to a vehicle turning, it is silent regarding the
length that a signal must be activated prior to
changing lanes. Moreover, the language found
throughout the remaining subsections of 3334 is consistent
with the interpretation that the term “before turning”
means before a vehicle makes a turn onto another
roadway, not before a person changes lanes. See id.
at § 3334(a) (“Upon a roadway no person shall turn a
vehicle or move from one traffic lane to another . . .
unless and until the movement can be made with
reasonable safety nor without giving an appropriate signal
in the manner provided in this section.”); id. at § 3334(d)
(“Turn signals shall be discontinued immediately after
completing the turn or movement from one traffic lane to
another traffic lane.”). See 1 Pa.C.S.A. § 1921(b) (when
terms of statute are clear and unambiguous, they are
given effect consistent with plain and common meaning).
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Slattery, ___ A.3d at ___, 2016 WL 2848689 at *2 (some emphases
added).
Instantly, the trial court opined:
In review of the video evidence, [Appellee] did not do
anything to give Trooper Moran probable cause for a
vehicle stop. [Appellee] was not speeding, weaving, or
braking erratically. [Appellee] actually used his turn signal
indicators every time he changed lanes. . . . [Appellee]
posed no safety hazard when his vehicle simply touched
the white fog line. Therefore, at the time of the stop,
Trooper Moran lacked specific articulable facts which would
have provided reasonable suspicion to believe that
[Appellee] was in violation of § 3309(1). Based on the
totality of the circumstances, the [c]ourt finds that the
Commonwealth has not met its burden in establishing
sufficient reasonable suspicion for the vehicle stop.
Trial Ct. Op., 12/2/15, at 6.11 We agree no relief is due.
In the case sub judice, Trooper Moran did not have reasonable
suspicion and/or probable cause from the turn signal violation to initiate a
traffic stop. See Slattery, ___ A.3d at ___, 2016 WL 2848689 at *2. The
statute is silent as to the length of time that a signal must be activated prior
to changing lanes. See id. We find no abuse of discretion or error of law by
the trial court. See Gutierrez, 36 A.3d at 1107. Accordingly, we affirm the
order of the trial court granting Appellee’s motion to suppress.12
11
We note that our review of the video corroborates the facts set forth by
the trial court.
12
Given our resolution of this issue, we need not address the second issue
raised on appeal.
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Order affirmed.
Judge Stabile joins the Memorandum.
Judge Mundy notes her dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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