J-S06025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE ANTHONY KELSEY :
:
Appellant : No. 195 EDA 2016
Appeal from the Judgment of Sentence August 10, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008889-2014
BEFORE: MOULTON, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 24, 2017
Appellant Tyrone Anthony Kelsey appeals from the judgment of
sentence of forty-eight hours to six months of imprisonment, imposed
August 10, 2015, following a bench trial resulting in his conviction for driving
under the influence (DUI) – general impairment and DUI – high
concentration of alcohol.1 After careful review, we affirm.
We summarize the relevant procedural and factual history as follows.
On July 31, 2014, Officer Timothy Lynch of the Upper Moreland Township
Police Department was traveling southbound on York Road at 3 a.m. and
stopped at the intersection of York Road and Evans Road. Notes of
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*
Former Justice specially assigned to the Superior Court.
1
Respectively, 75 Pa.C.S. § 3802(a)(1), § 3802(b).
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Testimony (N.T.), 8/10/2015, at 5-6. Officer Lynch observed a 1998 white
Oldsmobile traveling northbound on York Road toward him. Id. at 6. As
Officer Lynch negotiated a left turn eastbound onto Evans Road, he “must
have underestimated” the speed of the vehicle, and he had to “accelerate to
get out of the northbound lanes to avoid being struck.” Id. The posted
speed limit for that area of York Road was 40 miles per hour (MPH), but
Officer Lynch estimated that the vehicle was travelling in excess of 60 MPH.
See id. at 6, 13.
As Officer Lynch was traveling eastbound on Evans Road and facing
the opposite direction from York Road, he heard the sound of tires
screeching. See id. at 6. Officer Lynch knew that the speed limit changes
2/10th of a mile past the intersection of York Road and Evans Road to 25
mph because there is a long curve on the roadway. Id. at 10. The
screeching sound indicated to the officer that the brakes had been applied
heavily, indicating excess speed. Id. at 6, 14.
Officer Lynch backed out of Evans Road in order to travel northbound
on York. Id. at 6-7. The officer “had to travel at a very high rate of speed
to catch up” to the white Oldsmobile that continued to travel northbound.
Id. He caught up to the white Oldsmobile as it turned into a driveway of an
apartment complex. Id. at 7. The vehicle drove around and “was facing
southbound in one of the driveways of the complex.” Id. Officer Lynch
initiated a traffic stop at that time. Id.
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Officer Lynch observed that Appellant had “slurred speech,” “bloodshot
eyes,” and was “very slow to respond” to his questions when asked for his
driver’s license, insurance, and registration. See N.T. at 39. Officer Lynch
issued a citation for careless driving and driving while operating privilege is
suspended or revoked. Id. at 16. Officer Lynch asked Appellant if he had
been drinking, and “he said he had several drinks during the night.” Id.
Officer Lynch recovered an open bottle of alcohol in plain view behind the
operator seat. Id. at 38. After instructing Appellant to exit the vehicle,
Officer Lynch performed a few sobriety tests. Id. at 39. Appellant failed to
successfully complete the tests. Id. Officer Lynch arrested Appellant for
DUI. Id. at 41. Appellant was breathalyzed at approximately 4:00 a.m.
with the results being .140. Id. at 43-44. Appellant was charged with DUI-
related offenses described above. Appellant’s charge of careless driving was
changed to failure to obey traffic-control devices. See 75 Pa.C.S. § 3111(a).
His charge for driving while privileges were suspended was withdrawn.
Appellant filed a motion to suppress evidence, claiming inter alia that
his traffic stop was illegal and initiated without probable cause. Motion to
Suppress, 1/12/2015. The trial court conducted a suppression hearing
before the bench trial on August 10, 2015. Appellant’s motion to suppress
was denied. See Order, 8/12/2015. Appellant was found guilty of the DUI-
related charges and not guilty of failure to obey traffic-control devices. See
N.T. at 47. Appellant was sentenced as described above. Appellant filed a
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post-sentence motion for reconsideration of the weight of the evidence of
the suppression motion, finding of guilt, and judgment of sentence. See
Motion for Reconsideration, 8/18/2015. The court did not rule on Appellant’s
motion.
On January 12, 2016, Appellant filed a notice of appeal. In March
2016, this Court issued an order to show cause why the appeal should not
be quashed as premature due to the pending, undecided post-sentence
motion filed in August 2015. See Superior Ct. Order, 3/9/2016. Appellant
filed a praecipe with the trial court, which issued an order denying his post-
sentence motion by operation of law. See Order, 3/14/2016; Pa.R.Crim.P.
720(B)(3)(c). Appellant timely responded to the show cause order with the
court’s March 14, 2016 order. Thereafter, Appellant timely filed a court-
ordered Pa.R.A.P. 1925(b) statement. The court issued a responsive
opinion.
On appeal, Appellant raises the following issue:
1. Did the court err in failing to suppress the illegal stop of
appellant, Tyrone Kelsey, pursuant to article 1 section 8 of the
Pennsylvania Constitution and the Fourth Amendment to the
United States Constitution, where there was no reasonable
suspicion for the affiant to stop Tyrone Kelsey as he observed his
car approaching him head on at night as he made a left turn
before the car reached his exact location. He estimated the
speed was 60 to 70 miles per hour. The affiant testified that this
was the sole reason for the stop. The court stated in it's findings
of facts and conclusions of law that the affiant could not under
the circumstances present make this estimation. The court,
however, justified the stop based on the sound of screeching
tires the affiant heard shortly after the appellant's car passed
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2/10 of a mile away but did not observe or conclusively identify
as coming from appellants vehicle.
Appellant's Br. at 7.
Initially, we address our jurisdiction to entertain this appeal. In its
opinion, the trial court observed that Appellant’s notice of appeal was filed
prematurely, as the court had not yet ruled on Appellant’s post-sentence
motion. See Trial Ct. Op., 6/16/2016, at 4. Moreover, according to the trial
court, Appellant was required to file a second, timely notice of appeal
following entry of the order denying his post-sentence motion. See id. at 4.
As Appellant failed to do so, the court concluded, this appeal is subject to
dismissal.
If a timely post-sentence motion is filed, the notice of appeal must be
filed within thirty days of the order disposing of the post-sentence motion.
Pa.R.A.P. 720. The fact that Appellant lodged this appeal on January 12,
2016, while the post-sentence motion was pending, was technically
improper. Commonwealth v. Claffey, 80 A.3d 780, 782 (Pa. Super.
2013). However, Appellant filed his post-sentence motion on August 18,
2015. Under Rule 720(B)(3), post-sentence motions shall be decided within
120 days, by order or operation of law. Our review of the record clearly
shows that the clerk of courts did not enter an order reflecting that
Appellant’s post-sentence motion was denied by operation of law on
December 16, 2015. See Pa.R.Crim.P. 720(B)(3)(a)-(c) (providing that
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post-sentence motions not decided within the mandatory timeframe shall be
denied by operation of law) (one thirty day extension permitted).
Failure to enter order denying the post-sentence motion by operation
of law led to a “breakdown in the court system.” Commonwealth v. Perry,
820 A.2d 734, 735 (Pa. Super. 2003) (declining to quash appeal where a
breakdown in court system has occurred due to clerk of courts’ failure to
enter an order denying post-sentence motion by operation of law). Further,
Appellant timely and satisfactorily complied with this Court’s order directing
him to praecipe the lower court to enter an order denying his motion by
operation of law. Pa.R.A.P. 301(d).
Pursuant to Rule 905(a)(5), Appellant was not required to file a new
notice of appeal. See Pa.R.A.P. 905(a)(5) (stating that initially premature
notice of appeal shall be treated as filed on the date the appealable order is
entered). Accordingly, we have jurisdiction. See, e.g., Perry, 820 A.2d at
735.2
In his sole issue raised on appeal, Appellant contends that the court
erred in concluding that the unobserved, screeching sound heard by the
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2
The trial court also suggests that if he were to file a new 1925(b)
statement, it would be untimely. Again, the trial court is incorrect because
no new notice of appeal was required. See Pa.R.A.P. 905(a)(5). A 1925(b)
order does not impact appellate jurisdiction and is unnecessary absent court
order directing compliance. But see Greater Erie Indus. Develop. Corp.
v. Presque Isle Downs, Inc., 88 A.3d 222, 224-25 (Pa. Super. 2014)
(holding that this Court has no discretion to consider untimely raised issues
waived based on an untimely Rule 1925(b)).
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officer articulated reasonable suspicion of a violation of the Motor Vehicle
Code. Appellant's Br. at 11; see 75 Pa.C.S. § 6308(b). In response, the
Commonwealth contends that Appellant waived the sole dispositive issue for
appeal, that is, whether the police needed probable cause to stop appellant’s
vehicle. See Commonwealth's Br. at 7. We note that the trial court also
applied the reasonable suspicion standard in denying Appellant’s motion to
suppress. That appellant used an improper standard on appeal does not
amount to a new theory of relief; rather, the issue remains whether the
police officer had the requisite quantum of cause or belief that criminal
activity was afoot to constitutionally stop appellant’s vehicle. See
Commonwealth v. Holmes, 14 A.3d 89, 94 (Pa. 2011). Therefore,
Appellant has preserved the suppression issue.
Our standard of review is as follows.
The issue of what quantum of cause a police officer must
possess in order to conduct a vehicle stop based on a possible
violation of the Motor Vehicle Code is a question of law, over
which our scope of review is plenary and our standard of review
is de novo. Commonwealth v. Chase, 960 A.2d 108, 112 (Pa.
2008). However, in determining whether the suppression court
properly denied a suppression motion, we consider whether the
record supports the court's factual findings. If so, we are bound
by those facts and may reverse only if the legal conclusions
drawn therefrom are in error. Commonwealth v. Hernandez,
935 A.2d 1275, 1280 (Pa. 2007).
Holmes, 14 A.3d at 94.
Our analysis of the appropriate quantum of cause required for a traffic
stop begins with 75 Pa.C.S.A. § 6308(b), which provides:
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(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).
“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. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc) (citing Chase, 960 A.2d at 116). In Commonwealth v. Salter, 121
A.3d 987, 992–93 (Pa. Super. 2015), reargument denied (Oct. 14, 2015),
this Court explained:
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)] (citation
omitted), [superseded by statute, Act of Sept. 30, 2003,
P.L. 120, No. 24, § 17 (amending 75 Pa.C.S.A. §
6308(b))].
[Feczko, 10 A.3d at] 1290–1291 (emphasis added in
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Gleason).[3] Accordingly, when 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.
Illustrative of these two standards are stops for speeding and
DUI. 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.
On the other hand, if an officer possesses sufficient knowledge
based upon behavior suggestive of DUI, the officer may stop the
vehicle upon reasonable suspicion of a Vehicle Code violation,
since a stop would provide the officer the needed opportunity to
investigate further if the driver was operating under the
influence of alcohol or a controlled substance.
Salter, 121 A.3d at 992–93 (formatting modified) (citations omitted)
(holding that officer acted upon sufficient trustworthy facts to reasonably
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3
The investigative potential is a part and parcel to the purpose of the stop.
[A] vehicle stop based solely on offenses not “investigatable”
cannot be justified by a mere reasonable suspicion, because the
purposes of a Terry stop do not exist—maintaining the status
quo while investigating is inapplicable where there is nothing
further to investigate. An officer must have probable cause to
make a constitutional vehicle stop for such offenses.
Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014); Feczko,
10 A.3d at 1290 (quoting Chase, 960 A.2d at 115-16); see Terry v. Ohio,
392 U.S. 1 (1968)).
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believe that the defendant had violated the applicable regulation sufficient to
justify a traffic stop based upon probable cause of a violation of 75 Pa.C.S.A.
§ 4303(b) where officer observed the plate lights to be out from a distance
of 75 feet). In addressing a motion to suppress, the court must first make
the threshold inquiry of whether reasonable suspicion or probable cause is
constitutionally required to make a vehicle stop by considering the nature of
the violation and whether the suspected violation is an investigable offense.
Id. at 993-94
Here, Officer Lynch stopped Appellant for a violation based on his
observations, which required no further investigation and for which the
officer would need probable cause under Feczko. See Salter, 121 A.3d at
993 (noting that probable cause required to stop for non-investigatory
offenses); Commownealth v. Landis, 89 A.3d 694, 702-03 (Pa. Super.
2014) (noting that where trooper stopped motorist for careless driving and
for failing to drive within a single lane-and not to investigate possible DUI-he
needed probable cause to stop). “[W]hat facts and circumstances amount to
probable cause is a question of law.” Commonwealth v. Newman, 84
A.3d 1072, 1080 (Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014).
At the suppression hearing, Officer Lynch testified that he issued a
traffic citation for careless driving. N.T., 8/10/2015, at 16; see 75 Pa.C.S. §
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3714(a).4 He testified that as he was preparing to make a left hand turn, he
observed vehicle’s headlights approaching from the opposite direction. As
he made the turn, the officer observed that he must have underestimated
the speed of the approaching vehicle and had to accelerate to make it across
the intersection safely and avoid being hit by the other car which must have
been exceeding the posted speed limit. Shortly thereafter, the officer heard
screeching tires. Based on his experience, he knew that vehicles must slow
down after the intersection to 25 mph due to a curve in the road. The
officer testified that a vehicle whose tires screech while navigating a curve
with a 25 mph speed limit is not being operated in a safe manner and is in
violation of the Motor Vehicle Code. Trial Ct. Op., 6/6/2016, at 7. Notably,
Officer Lynch did not testify that he suspected Appellant was driving under
the influence of alcohol prior to pulling him over.
Careless driving is defined as follows:
§ 3714 Careless Driving
(a) General rule. – Any person who drives a vehicle in careless
disregard for the safety of persons or property is guilty of
careless driving, a summary offense.
75 Pa.C.S. § 3714(a). Based upon the facts accepted by the suppression
court, we conclude that the Commonwealth established that Officer Lynch
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4
Here, Officer Lynch suspected Appellant of speeding and Appellant was
charged with violating 75 Pa.C.S. § 3714, careless driving, which was later
withdrawn and replaced with 75 Pa.C.S. § 3111(a), failure to obey traffic
control devices.
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had probable cause to commence a traffic stop for careless driving.
The Commonwealth concedes that careless driving was a non-
investigable offense and though the trial court applied the wrong standard,
the Commonwealth correctly contends that we may nevertheless affirm if
the result is correct for any reason. See Commonwealth's Br. at at 9-10
(citing in support Newman, 84 A.3d at 1080).5 In so doing, we recognize
the following principle:
Probable cause does not emanate from an antiseptic courtroom,
a sterile library or a sacrosanct adytum, nor is it a pristine
philosophical concept existing in a vacuum, but rather it requires
a pragmatic analysis of everyday life on which reasonable and
prudent men, not legal technicians, act. It is to be viewed from
the vantage point of a prudent, reasonable, cautious police
officer on the scene at the time of the arrest guided by his
experience and training.
Commonwealth v. Norwood, 319 A.2d 908, 910 (Pa. 1974) (internal
citations and quotation marks omitted). Accordingly, having found that the
officer had probable cause to stop Appellant for careless driving, the denial
of the suppression motion was proper.
Judgment of sentence affirmed.
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5
The trial court’s 1925(a) opinion incorrectly identifies the “sole issue” as
whether Officer Lynch had “reasonable suspicion” that Mr. Kelsey committed
a violation of the Motor Vehicle Code. Trial Ct. Op., 6/6/2016, at 7. Here,
the court applied the wrong legal standard in concluding that the officer had
reasonable suspicion to investigate a violation of the motor vehicle code.
The court failed to identify careless driving as a non-investigable offense that
must be supported by probable cause.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2017
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