J-S68040-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DAVID BRANDON JUDY, :
:
Appellee : No. 489 WDA 2016
Appeal from the Order Entered March 30, 2016
in the Court of Common Pleas of Westmoreland County,
Criminal Division, at No(s): CP-65-CR-0003049-2015
BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 18, 2016
The Commonwealth of Pennsylvania appeals from the March 30, 2016
order which granted the motion to dismiss filed by David Brandon Judy
(Judy). Upon review, we affirm.
The suppression court summarized the underlying facts of this case as
follows.
During the hearing on [Judy’s motion to dismiss],
[Pennsylvania State Police Trooper Gregory Hays (Trooper
Hays)] testified relative to his interaction with [Judy]. Trooper
Hays testified that at approximately 1:06 a.m. [on March 20,
2015, Trooper Hays] observed [Judy’s] vehicle traveling east on
Route 30. He followed the vehicle for a distance and began to
clock the vehicle using the calibrated speedometer in his police
cruiser. Trooper Hays testified that from the time he started to
clock [Judy’s] vehicle until the time the stop occurred, he
observed [Judy] for a quarter of a mile. Trooper Hays indicated
that [Judy] was traveling 60 miles an hour in a 40 mile an hour
zone.
*Retired Senior Judge assigned to the Superior Court.
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Trooper Hays testified that he also observed [Judy’s]
vehicle travel across the fog line on three occasions. Based on
Trooper Hays observations, he initiated a traffic stop. Trooper
Hays testified that his police cruiser is equipped with a Dash
Cam video, and it was operating during the incident.
On cross-examination, Trooper Hays testified that when he
first came across [Judy’s] vehicle, [Judy] was not swerving,
weaving, or speeding. At this time, Trooper Hays indicated that
he had no reason to be suspicious that [Judy] was driving under
the influence of alcohol. Trooper Hays testified that when he
initiated the traffic stop, he did not have enough evidence
against [Judy] to charge him with speeding. Trooper Hays
testified that [Judy] “touched” the fog line with his tire.
However, Trooper Hays testified that during his observation,
[Judy] never left its proper lane of traffic, did not cross over the
fog line, or touch the berm. Trooper Hays indicated that there
were no other cars on the road at this time.
Suppression Court Opinion and Order, 3/30/2016, at 3.1 The stop of Judy’s
vehicle resulted in Judy’s being charged with several motor vehicle code
violations, inter alia, DUI.2 On December 3, 2015, Judy filed a motion to
dismiss. On March 30, 2016, following the hearing and after consideration
of the parties’ briefs, the suppression court granted Judy’s motion, holding
as follows.
1
The suppression court filed its Rule 1925(a) opinion in which it relied solely
on its analysis of the issues set forth in the court’s March 30, 2016 opinion
filed with its order granting Judy’s motion to dismiss.
2
Because the only issue raised at the hearing concerned Trooper Hays’ initial
stop of Judy’s vehicle and whether he had the requisite probable cause to do
so, testimony was not elicited from Trooper Hays regarding the observations
he made when he encountered Judy and any field sobriety tests he may
have conducted.
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[The suppression court] finds that Trooper Hays lacked
probable cause to stop Mr. Judy for speeding. Trooper Hays did
not clock [Judy’s] vehicle for the requisite distance under the
Motor Vehicle Code. Additionally, Trooper Hays testified that
when he initiated the traffic stop, he did not have enough
evidence against [Judy] to charge him with speeding. There was
no evidence presented to suggest that [Judy] was traveling
faster than reasonable and prudent under the conditions which
existed March 20, 2015. Absent other factors, Trooper Hays’
testimony that [Judy] was traveling 60 miles an hour in a 40
mile an hour zone over a distance of a quarter of a mile, does
not alone, amount to probable cause to initiate a traffic stop.
Suppression Court Opinion and Order, 3/30/2016, at 4. This timely-filed
appeal followed.3
The Commonwealth presents one issue for this Court’s review: “[t]he
suppression court err[ed] in finding the trooper lacked probable cause to
stop [Judy’s] vehicle for speeding because the trooper did not clock the
vehicle for the request distance under the motor vehicle code[4] in light of
the Superior Court’s holding in [Commonwealth v. McElroy, 630 A.2d 35
(Pa. Super. 1993) (en banc)].” Commonwealth’s Brief at 1 (unnecessary
capitalization omitted).
We consider the Commonwealth’s issue mindful of the following.
3
Both the suppression court and the Commonwealth have complied with
Pa.R.A.P. 1925.
4
See 75 Pa.C.S. § 3368 (“The 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.”).
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When the Commonwealth appeals from a suppression order, this
Court follows a clearly defined scope and standard of review. We
consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. This
Court must first determine whether the record supports the
factual findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions drawn
from those findings. In appeals where there is no meaningful
dispute of fact, as in the case sub judice, our duty is to
determine whether the suppression court properly applied the
law to the facts of the case.
Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.
2013) (quotation marks and citations omitted) (quoting Commonwealth v.
Arthur, 62 A.3d 424, 427 (Pa. Super. 2013)).
The following principles guide our review of this matter.
[W]hen considering whether reasonable suspicion or probable
cause is required constitutionally to make a vehicle stop, the
nature of the violation has to be considered. If it is not necessary
to stop the vehicle to establish that a violation of the Vehicle
Code has occurred, an officer must possess probable cause to
stop the vehicle. Where a violation is suspected, but a stop is
necessary to further investigate whether a violation has
occurred, an officer need only possess reasonable suspicion to
make the stop.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015)
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.
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
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In determining whether probable cause exists, we apply a
totality of the circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal
quotation marks and citations omitted).
The Commonwealth avers that Trooper Hays possessed the requisite
probable cause to initiate the traffic stop. In making this argument, the
Commonwealth relies solely on our holding in McElroy. In McElroy, Officer
Arnold Duck testified he observed McElroy’s vehicle for approximately five
seconds travelling at a high rate of speed. 630 A.2d at 37. Specifically, the
Officer estimated the truck McElroy was driving was travelling at least 80
miles per hour in a 35-mile-per-hour-zone. Id. Officer Duck immediately
turned his vehicle around and began pursuing McElroy, eventually initiating a
stop of McElroy’s vehicle. Id. Officer Duck testified that at the time, he felt
he had probable cause to stop McElroy for travelling in excess of the speed
limit. Id. During the traffic stop, “Officer Duck and his partner detected the
odor of alcohol on [McElroy’s] breath and asked [McElroy] to submit to field
sobriety tests.” Id. After failing said tests, McElroy was arrested and
transported to the hospital where a blood test revealed a blood alcohol level
of .19%. McElroy was charged with, inter alia, DUI.
McElroy filed a motion to suppress, arguing that “the initial stop of his
vehicle was illegal because the police officer lacked ‘probable cause to
believe’ or ‘articulable and reasonable ground to suspect a violation of the
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[vehicle code]’”. Id. at 36. The trial court denied McElroy’s motion. After
being found guilty and sentenced accordingly, McElroy filed an appeal
challenging the denial of his suppression motion. This Court granted en
banc consideration of this case to “clarify the standard to be applied when
determining whether a police officer may legally stop a motor vehicle[.]” Id.
Upon review, the McElroy Court concluded that the suppression motion
was properly denied, even though Officer Duck’s assessment of McElroy’s
speed was based only upon his personal observation. In doing so, the Court
found that while “it is true that a police officer’s opinion testimony alone is
not sufficient to sustain a conviction for speeding under 75
Pa.C.S.§ 3362[,]” the question presented is not whether Officer Duck’s
testimony could sustain a conviction for speeding, but rather whether his
testimony amounted to ‘reasonable and articulable grounds to suspect a
violation of the Vehicle Code.’” McElroy, 630 A.2d at 40 (emphasis in
original). The Court held that the Officer’s opinion that the truck “was
travelling 80 miles per hour in a 30 mile per hour zone amounted to
‘articulable and reasonable grounds’ to suspect [McElroy] was speeding, and
Officer Duck was entitled to stop []and request [McElroy’s] driver’s license,
vehicle registration and proof of financial responsibility.” Id.
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In concluding the Officer had sufficient probable cause to initiate the
stop, the McElroy Court expressly overruled this Court’s prior decision in
Commonwealth v. Whitmyer 609 A.2d 809 (Pa. Super. 1992).
In Whitmyer[,] a police officer stopped Whitmyer’s
vehicle because the officer felt the operator was driving
“erratically” and was travelling at an unsafe speed in violation of
75 Pa.C.S.[] § 3361. The officer testified that he followed
Whitmyer for two-tenths of a mile [instead of the three-tenths of
a mile required by the Vehicle Code] at 70 miles per hour in a 55
miles per hour zone, before Whitmyer exited the highway. He
described Whitmyer’s driving as “erratic” and noted that the
traffic on the highway was medium to heavy at the time. In spite
of the officer’s testimony regarding his reasons for stopping
[Whitmyer], the trial court suppressed [] all evidence gained as
a result of the stop. The trial court reasoned that the police
officer did not have “probable cause to believe” that Whitmyer
was in violation of [75 Pa.C.S. § 3361], and, thus, the stop was
illegal. A panel of this [C]ourt agreed with the trial court that
the officer’s observations did not amount to “articulable and
reasonable grounds to suspect” that Whitmyer was driving at an
unsafe speed. Whitmyer, 609 A.2d at 814-815.
McElroy, 630 A.2d at 41 (footnote omitted).
In relying on this Court’s holding in McElroy, the Commonwealth
neglects to mention that our Supreme Court affirmed Whitmyer after this
Court overruled it with McElroy. See Commonwealth v. Whitmyer, 668
A.2d 1113 (Pa. 1995) (superseded by statute).5 In affirming this Court’s
5
Since our Supreme Court’s holding in Whitmyer, the statute setting forth
the requirements a police officer must meet in order to initiate a stop of a
vehicle has changed. Specifically, the former version of 75 Pa.C.S.
§ 6308(b) required a police officer have “articulable and reasonable
grounds” to effectuate a vehicle stop. The present version requires a police
officer have “reasonable suspicion” that a violation of the motor vehicle code
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decision in Whitmyer, our Supreme Court held that “the trooper could not
have relied upon his estimate of [Whitmyer’s] speed as that estimate was
based on a distance of only two-tenths of a mile instead of the three-tenths
required by the statute.” Id. at 1117 (emphasis added). In concluding as
such, our Supreme Court made it clear that
this is not a case where further investigation would lead to a
discovery of a violation of the Vehicle Code. If the trooper was
unable to clock [Whitmyer] for three-tenths of a mile or observe
the conditions that would warrant a citation for driving at an
unsafe speed, there is no further evidence that could be obtained
from a subsequent stop and investigation. Thus, we conclude
that the fruits of the unlawful stop were correctly suppressed.
Id. at 1118.
Here, Trooper Hays testified that he stopped Judy for speeding, but
failed to clock Judy for the three-tenths of a mile required by statute. Thus,
based on our Supreme Court’s holding in Whitmyer, we are constrained to
affirm the suppression court’s finding that Trooper Hays lacked probable
cause to stop Judy’s vehicle.
Order affirmed.
is occurring or had occurred in order to initiate a stop. Despite the change
in language, this Court has continued to hold that a police officer must have
probable cause to pull over a vehicle for speeding. Salter, 121 A.3d at 993
(“If a vehicle is stopped for speeding, the officer must possess probable
cause to stop the vehicle. This is so because when a vehicle is stopped,
nothing more can be determined as to the speed of the vehicle when it was
observed while traveling upon a highway.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2016
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Com. v. Judy, D.
Combined Opinion