J-S04042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PETER A. HISSIM :
:
Appellant : No. 1464 EDA 2016
Appeal from the Judgment of Sentence February 5, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000181-2015
BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED February 27, 2017
Appellant Peter Hissim appeals the judgment of sentence entered by
the Court of Common Pleas of Northampton County after Appellant was
convicted of Driving Under the Influence (DUI) and related summary
offenses. Appellant claims the trial court erred in denying his suppression
motion and raises a weight of the evidence claim. We affirm.
On November 1, 2014, Sergeant John Harmon, a twenty-one year
veteran of the Colonial Regional Police Department, was on a roving DUI
patrol in Bath, Pennsylvania. At approximately 2:02 a.m., Sergeant Harmon
observed a black Chevrolet Silverado traveling westbound on West Main
Street at an “extremely” high rate of speed. Notes of Testimony (N.T.),
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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1/13/15, at 5. Sergeant Harmon made this determination based on the fact
that he needed to travel in excess of 70 to 80 miles-per-hour to catch up to
the Silverado on a road where the posted speed limit was 35 miles-per-hour.
Sergeant Harmon also observed the vehicle cross the center lane of travel.
Continuing to follow the truck as it turned onto Race Street, Sergeant
Harmon initiated a traffic stop as the vehicle approached East Allen
Township. Upon identifying the driver as Appellant, Sergeant Harmon noted
a strong odor of alcohol coming from the vehicle, observed Appellant’s eyes
were glassy and bloodshot, and deemed his behavior to be “combative.”
After Appellant submitted to field sobriety testing, Sergeant Harmon noted
Appellant showed signs of impairment and arrested him for suspicion of DUI.
Subsequent blood tests revealed Appellant’s blood alcohol level was 0.13%.
Appellant was charged with DUI (high rate of alcohol), DUI (general
impairment: incapable of safely driving), failure to drive at a safe speed,
failure to drive on roadways laned for traffic, and careless driving.1
Appellant filed a suppression motion claiming Sergeant Harmon did not have
the requisite suspicion to stop his vehicle. The trial court denied this
suppression motion. On January 8, 2016, the trial court convicted Appellant
of both DUI counts, failure to drive at a safe speed, and failure to drive on
roadways laned for traffic, but acquitted him of careless driving.
____________________________________________
1
75 Pa.C.S. §§ 3802(b), 3802(a), 3361, 3309(1), and 3714(a).
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On February 5, 2016, the trial court sentenced Appellant to a period of
thirty days to six months imprisonment as this was Appellant’s second DUI
conviction. On February 16, 2016, Appellant filed a post-sentence motion,
which the trial court subsequently denied.2 Appellant filed a timely notice of
appeal and complied with the trial court’s order to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues for our review on appeal:
1. Whether there was insufficient probable cause to stop
[Appellant] when Officer Harmon did not follow [Appellant] for
three-tenths of a mile?
2. Whether [Appellant’s] conviction for DUI, General
Impairment, was against the weight of the evidence when the
Commonwealth did not prove [Appellant] was substantially
impaired?
Appellant’s Brief, at 5.
Appellant first claims the trial court erred in denying his suppression
motion, asserting that Sergeant Harmon lacked the probable cause needed
to initiate the traffic stop of his vehicle for speeding. Specifically, Appellant
claims that the investigative stop was unjustified as Sergeant Harmon was
required to follow Appellant for three-tenths of a mile to clock his speed
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2
Generally, “a written post-sentence motion shall be filed no later than 10
days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). Appellant’s
post-sentence motion was due on Monday, February 15, 2016, on which
President’s Day was celebrated. Court holidays are omitted from the
calculation of a period of time when the holiday is the last day of the
requisite period. See 1 Pa.C.S. § 1908. As a result, Appellant’s post-
sentence motion was timely filed on Tuesday, February 16, 2016.
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using his speedometer. We review a trial court’s denial of a suppression
motion under the following standard:
Our 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 factual findings are
supported by the record, we are bound by these 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 our plenary review.
Commonwealth v. Johnson, 146 A.3d 1271, 1273 (Pa.Super. 2016)
(citation omitted).
With respect to vehicle stops based on suspected violations of the
motor vehicle code, Section 6308(b) of the 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).
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In Commonwealth v. Feczko, 10 A.3d 1285 (Pa.Super. 2010), this
court further explained the state of the law with respect to vehicle stops:
Traffic stops based on a reasonable suspicion[,] either of criminal
activity or a violation of the Motor Vehicle Code under the
authority of Section 6308(b)[,] must serve a stated investigatory
purpose. [Commonwealth v.] Chase, 960 A.2d [108,] 116
[(Pa. 2008)].
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.” [Commonwealth v.]
Gleason, 785 A.2d [983,] 989 [(Pa. 2001)].
Id. at 1291. In other words, “[w]here a vehicle stop has no investigatory
purpose, the police officer must have probable cause to support it.”
Commonwealth v. Enick, 70 A.3d 843, 846 (Pa.Super. 2013), appeal
denied, 624 Pa. 671, 85 A.3d 482 (2014). Consistent with Fezcko, this
Court has held that a police officer must possess probable cause to stop a
vehicle for a speeding violation because nothing more can be determined
regarding the violation once the vehicle is stopped. Commonwealth v.
Salter, 121 A.3d 987, 993 (Pa.Super. 2015).
Our Supreme Court has defined probable cause as follows:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
[stop], 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
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probability, and not a prima facie showing, of criminal activity. In
determining whether probable cause exists, we apply a totality
of the circumstances test.
Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation
omitted).
Section 3361 of the Motor Vehicle Code sets forth the offense of
“Driving vehicle at safe speed” as follows:
§ 3361. Driving vehicle at safe speed
No person shall drive a vehicle at a speed greater than is
reasonable and prudent under the conditions and having regard
to the actual and potential hazards then existing, nor at a speed
greater than will permit the driver to bring his vehicle to a stop
within the assured clear distance ahead. Consistent with the
foregoing, every person shall drive at a safe and appropriate
speed when approaching and crossing an intersection or railroad
grade crossing, when approaching and going around curve, when
approaching a hill crest, when traveling upon any narrow or
winding roadway and when special hazards exist with respect to
pedestrians or other traffic or by reason of weather or highway
conditions.
75 Pa.C.S.A. § 3361 (emphasis added).
In Commonwealth v. Heberling, 678 A.2d 794, 797 (Pa.Super.
1996), this Court upheld a defendant’s conviction under Section 3361 based
on the arresting officer’s observation that the defendant was traveling “at an
extreme rate of speed” in a 45 mile-per-hour zone as the defendant was
approaching an intersection and the crest of a hill. The officer in Heberling
did not measure the defendant’s exact speed before stopping his vehicle.
We have consistently emphasized that “Section 3361 does not require that a
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specific speed limit must be exceeded in order for a violation to occur.”
Commonwealth v. Martorano, 563 A.2d 1229, 1233 (Pa.Super. 1989).
In this case, Sergeant Harmon observed Appellant traveling at an
“extremely” high rate of speed down West Main Street as Appellant’s truck
approached and turned at the intersection at Race Street. Sergeant Harmon
was able to determine that Appellant was travelling at a speed well beyond
the posted thirty-five miles per hour speed limit as Sergeant Harmon had to
pursue Appellant at speeds in excess of 70 to 80 miles-per-hour to catch up
to his vehicle. Sergeant Harmon also observed the vehicle cross the center
lane of travel. We find that Sergeant Harmon had probable cause to stop
Appellant for violating Section 3361 and conclude that the trial court did not
err in denying Appellant’s suppression motion.3
Appellant also claims his conviction for DUI (general impairment:
incapable of safely driving) was against the weight of the evidence. When
reviewing a challenge to the weight of the evidence, our standard of review
is as follows:
The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court's decision has record support.
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3
In denying Appellant’s suppression motion, the trial court found the
investigative stop was justified by reasonable suspicion that Appellant had
violated the Vehicle Code. “[I]t is well settled that where the result is
correct, an appellate court may affirm a lower court's decision on any ground
without regard to the ground relied upon by the lower court itself.”
Commonwealth v. Derrickson, 923 A.2d 466, 469 (Pa.Super. 2007).
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Where the record adequately supports the trial court, the trial
court has acted within the limits of its discretion.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court. Appellate review of a weight
claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the weight
of the evidence.
Commonwealth v. Mucci, 43 A.3d 399, 410–11 (Pa.Super. 2016),
(quoting Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054–55
(2013).
The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions. Discretion is
abused where the course pursued represents not merely an error
of judgment, but where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.
Clay, 619 Pa. at 433, 64 A.3d at 1055.
DUI under Subsection 3802(a)(1) is defined as follows:
(a) General impairment.
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(1) An individual may not drive, operate or be in actual physical
control of the movement of a vehicle after imbibing a sufficient
amount of alcohol such that the individual is rendered incapable
of safely driving, operating or being in actual physical control of
the movement of the vehicle.
75 Pa.C.S. § 3802(a)(1) (italics in original).
Specifically, Appellant claims that his conviction for DUI (general
impairment) cannot stand as he did not drive erratically and his medical
condition of Bell’s Palsy caused Sergeant Harmon to believe he was
intoxicated. The trial court rejected these claims, reasoning as follows:
The evidence also clearly [shows] that [Appellant] was incapable
of safely operating the vehicle because of intoxication. Officer
Harmon testified that the Appellant was driving the vehicle in
excess of 70 miles per hour and detected a strong odor of
alcohol coming from Appellant’s vehicle, observed that the
Appellant did have glassy, bloodshot eyes, and testified as to the
Appellant’s agitated and combative behavior during the traffic
stop. The Officer also conducted field sobriety tests, all of which
indicated Appellant’s intoxication. In the “One Leg Stand” test,
[Appellant] exhibited three of the four intoxication indicators,
swaying during the entire test, raising his arms for balance and
putting his foot down several times during the test. During the
“Walk and Turn” [test,] he exhibited six intoxication indicators,
not keeping his balance, starting the test too soon, did not step
heel to toe, showed excessive distance between his feet, stepped
off the line and raised his arms for balance. Lastly, on the
“Finger to Nose” test[,] the Appellant missed touching his nose
on two of the four attempts, failed to follow instructions and was
swaying during the administration of the test. Based on these
indicators, Officer Harmon concluded that the Appellant showed
significant signs of impairment and placed him under arrest.
Additionally, the Officer indicated that he instructed the
Appellant to notify him if he felt insecure or physically unable to
perform any of the tests, prior to the test. Although the Officer
was informed that the Appellant had a medical condition, Bell’s
Palsy, the Appellant never indicated that his condition, or any
other difficulty, prevented him from performing any of the field
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sobriety tests. Therefore, based on the evidence presented to
this Court at the time of trial, we concluded that the
Commonwealth met its burden of proving beyond a reasonable
doubt that [Appellant] was guilty of Driving Under the Influence
of Alcohol, General Impairment.
Trial Court Opinion, 6/5/16, at 4-5. There is support in the record for the
trial court’s ruling in which the law was properly applied, and we discern no
partiality, prejudice, bias or ill-will. See Clay, supra. Accordingly,
Appellant’s weight claim also fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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