J-A03005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KENNEDY ANTHONY RICHARDS
Appellee No. 962 MDA 2016
Appeal from the Order Entered May 16, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0002147-2015
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 20, 2017
The Commonwealth of Pennsylvania appeals from the order entered in
the Court of Common Pleas of Cumberland County, which granted Richards’
motion to suppress evidence recovered from Kennedy Anthony Richards’
vehicle after he was stopped by police for a violation of 75 Pa.C.S. §
3313(d). Upon review, we affirm.
The trial court noted the facts of this matter as follows:
On May 13, 2015, Trooper [David] Long and Trooper [John]
Gerkin were on patrol in an unmarked vehicle on northbound
Interstate 81 monitoring highways for criminal interdiction. At
approximately 4:30 p.m. on that day, [Richards], in a rented
2014 Nissan Sentra with a New Jersey plate, drove by the
Troopers’ position around mile marker 40. At the time he drove
by, [Richards] was in the left-hand lane of the highway. The
Troopers pulled out and began to follow [Richards]; by the time
that they had pulled him over, they had traveled for five miles.
The video recording from the patrol car shows approximately one
mile of travel totaling about a minute and a half prior to the
vehicle coming to a stop; during this time, [Richards] remained
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in the left lane with several vehicles in front of him, all of which
appeared to be passing [other] vehicles, most notably a tractor-
trailer truck, in the right-hand lane.
The Troopers activated their lights and after waiting for an
available spot in the right-hand lane, [Richards] used his turn
signal, pulled into the right lane, and then pulled over onto the
berm of the road around marker 45. Upon request, [Richard]
provided a valid Florida driver’s license as well as the rental
agreement for the vehicle. When questioned by the Troopers,
[Richards] was extremely nervous, and was inconsistent and
evasive as to his travel plans and his criminal history, which
included arrests for firearms and narcotics. The Troopers
requested to search [Richards’] vehicle, but [Richards] refused
to give consent. A K9 unit was summoned to search the vehicle,
and ultimately, approximately 13 pounds of marijuana was
discovered in the vehicle. The Troopers did not issue a citation
to [Richards] for driving in the left lane without passing, instead
issuing a warning.
Trial Court Opinion, 5/16/16, at 1-2.1
Richards was charged with possession with intent to deliver (PWID),
35 P.S. § 780-113, based upon the marijuana recovered from the vehicle.
He filed a motion to suppress the discovery of the marijuana, arguing that
the Troopers lacked probable cause to either conduct a traffic stop or
conduct a search of his vehicle. The trial court granted the motion to
suppress. This timely appeal followed, in which Richards raises the following
issue for our review:
Did the suppression court err in granting the motion to suppress
when the trooper stopped the [Appellant’s] vehicle based on
probable cause for a violation of 75 Pa.C.S. § 3313(d)?
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1
The trial court enumerated findings of fact, however, we have grouped
them together for ease of discussion.
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Brief for Appellant, at 4.
When reviewing an order denying a defendant’s motion to suppress,
we must determine “whether the record supports the trial court’s factual
findings and whether the legal conclusions drawn therefrom are free from
error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super.
2000). In so doing, 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 as a whole.” Commonwealth v.
Maxon, 798 A.2d 761, 765 (Pa. Super. 2002). “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.” McClease, 750 A.2d at 323-24.
Vehicle Code Section 3313 provides:
(d) Driving in right lane.—
(1) Except as provided in paragraph (2) [(relating to
vehicles over 10,000 pounds)] and unless otherwise
posted, upon all limited access highways having two or
more lanes for traffic moving in the same direction, all
vehicles shall be driven in the right-hand lanes when
available for traffic except when any of the following
conditions exist:
(i) When overtaking and passing another vehicle
proceeding in the same direction.
(ii) When traveling at a speed greater than the traffic
flow.
(iii) When moving left to allow traffic to merge.
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(iv) When preparing for a left turn at an intersection,
exit or into a private road or driveway when such left
turn is legally permitted.
75 Pa.C.S. § 3313(d)
In this case, the Troopers testified that they observed Richards driving
slower than the traffic in the right lane and that he could have moved into
the right lane. However, the video shows Richards complying with the law
the entire time and actually passing vehicles in the right lane as he traveled
in the left lane. As the trial court noted,
[a]lthough the Commonwealth’s position is that [Richards] had
the opportunity to get into the right lane at several points, the
statute does not mandate that he do so. Rather, the statute
specifically allows for travel in the left lane when overtaking and
passing another vehicle proceeding in the same direction, or
when traveling at a speed greater than the traffic flow. As . . .
the evidence indicate[s] that [Richards] was doing exactly that,
we are constrained to find that there was not sufficient [probable
causeto stop him] and will suppress the seizure of the
marijuana[.]
Trial Court Opinion, 5/16/16, at 5 (quotation marks omitted). We agree that
any violation of the statute appears to have been a de minimis violation.
See Commonwealth v. Slattery, 139 A.3d 221, 225 n.8 (Pa. Super. 2016)
(de minimis violations of Vehicle Code do not provide probable cause for
stop).
Accordingly, viewing the evidence in the context of the record as a
whole, we defer to the trial court’s conclusion that no probable cause existed
to find that Richards violated section 3313(d) and that the resulting search
of Richards’ car was fruit of the poisonous tree. Maxon, supra.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2017
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