J-A04040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELIZABETH ALLISON DINON,
Appellant No. 1748 EDA 2016
Appeal from the Judgment of Sentence May 19, 2016
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0003247-2015
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 18, 2017
Appellant, Elizabeth Allison Dinon, appeals from the judgment of
sentence imposed following her bench trial conviction of driving under the
influence of alcohol and controlled substances (cocaine and marijuana), and
related offenses. Specifically, she challenges the denial of her motion to
suppress. Appellant argues that the Pennsylvania state troopers lacked
reasonable suspicion to stop her while she was driving on the night in
question. She asserts a violation of her constitutional rights. We conclude
that the trial court’s finding, in the totality of the circumstances, that the
state troopers had reasonable suspicion to stop Appellant, is supported by
the record. Accordingly, we affirm.
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*
Retired Senior Judge assigned to the Superior Court.
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We derive the facts of the case from the trial court’s footnote
memorandum accompanying its denial of Appellant’s motion to suppress,
and our independent review of the certified record. (See Order, 1/22/16;
N.T. Suppression Hearing, 1/11/16; N.T. Trial, 3/11/16).1
On July 7, 2015, at about 1:15 a.m., Pennsylvania State Troopers
Stefano Gallina and Erick Baker began to follow a Buick LeSabre driven by
Appellant on State Route 896 in the area of New Garden Township in
Chester County. They continued to follow her when she turned westbound
onto Oxford Road.
Appellant’s car failed to stay in its lane of travel. The troopers
observed the car “touching and/or crossing the double yellow lines.” (Order,
at 1 n.1). Trooper Baker testified that he observed her vehicle braking for
no apparent reason, abruptly fluctuating in speed, and negotiating turns
using an unusually wide radius. (See id.; see also N.T. Suppression
Hearing, at 10; compare N.T. Trial, at 43-44). The trial court concluded the
vehicle was “weaving.” (N.T. Trial, at 98).
The troopers started the dashboard camera, or motor vehicle recorder
(MVR). The parties agree that the entire length of the recording at issue is
less than two minutes. (See N.T. Suppression, at 9).
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1
Trooper Baker testified at the suppression hearing. Both troopers testified
at the trial.
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After following Appellant briefly in this way, the troopers activated
their overhead lights. Appellant pulled over. They testified they detected an
odor of alcoholic beverage. Appellant had glassy, bloodshot eyes. Her
pupils were dilated. (See N.T. Trial, at 45). Appellant consented to a blood
draw. The parties stipulated that Appellant had a B.A.C. (blood alcohol
content) of .098%. She also had cocaine and marijuana in her system.
(See id. at 65-66).
The trial court convicted Appellant of driving under the influence of a
controlled substance as follows: 75 Pa.C.S.A. § 3802(a)(1) (general
impairment); § 3802(a)(2) (B.A.C. between .08% and .10%);
§ 3802(d)(1)(i) (Schedule I controlled substance) [cocaine]; § 3802(d)(1)(ii)
(Schedule II controlled substance) [marijuana]; § 3802(d)(1)(iii) (metabolite
of controlled substance); § 3802(d)(2) (combination of drugs); § 3802(d)(3)
(combination of drugs and alcohol).
The trial court acquitted Appellant of violation of 75 Pa.C.S.A.
§ 3309, driving on roadways laned for traffic; § 3714, careless driving;
§ 3809, restrictions on alcoholic beverages (prohibiting possession or
consumption of open alcoholic beverage in motor vehicle); and § 4305,
displaying vehicular hazard warning signals (not turning on flashing lights
when stopped by the state troopers). On May 19, 2016, the court sentenced
Appellant to a term of not less than seventy-two hours nor more than six
months of incarceration.
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This timely appeal followed.2
Appellant presents one question for our review:
Whether the investigative stop of [Appellant’s] vechile [sic]
was lawful under the United States and Pennsylvania
Constitutions?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
Appellant maintains that the state troopers “violated [her]
constitutional right against unlawful search and seizures” when they
“conducted an unlawful stop of her vehicle.” (Id. at 13). She posits that
there was “insufficient evidence of reasonable suspicion” to justify the
troopers’ “intrusion on her vehicle.” (Id. at 17; see also id. at 13 n.3).
Therefore, she asserts, this Court should reverse the trial court’s denial of
suppression, and reverse the trial court’s judgment. (See id. at 17, 18).
We disagree.
Preliminarily, we observe that Appellant frames her argument as a
challenge to the sufficiency of the evidence. (See id. at 17). Our standard
of review for a challenge to sufficiency is well-settled.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted
at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
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2
Appellant filed a concise statement of errors on June 23, 2016. The trial
court filed an opinion on June 27, 2016, referencing its order and footnote
memorandum of January 22, 2016. See Pa.R.A.P. 1925.
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and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations omitted).
[An appellate court’s] 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, [the appellate court
is] bound by [those] 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
[ ] plenary review.
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Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa. Super. 2015),
appeal denied, 135 A.3d 584 (Pa. 2016) (citation omitted).
Additionally, on differing facts, our Supreme Court has explained the
standard of review and pertinent legal principles for a police stop 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, 599 Pa. 80, 88, 960
A.2d 108, 112 (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, 594 Pa. 319, 328, 935 A.2d
1275, 1280 (2007).
Pursuant to 75 Pa.C.S.A. § 6308(b),
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.A. § 6308(b).
* * *
Section 6308(b) allows a police officer to conduct a vehicle
stop if he has reasonable suspicion to believe that a violation of
the Motor Vehicle Code is occurring or has occurred. We have
defined reasonable suspicion as follows:
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Reasonable suspicion is a less stringent standard
than probable cause necessary to effectuate a warrantless
arrest, and depends on the information possessed by
police and its degree of reliability in the totality of the
circumstances. In order to justify the seizure, a police
officer must be able to point to “specific and
articulable facts” leading him to suspect criminal
activity is afoot. [Commonwealth v.] Melendez, [544
Pa. 323, 676 A.2d 226], at 228 [ (1996) ] (citing Terry [v.
Ohio, 392 U.S. 1], at 21 [88 S. Ct. 1868, 20 L.Ed.2d 889
(1968)]). In assessing the totality of the circumstances,
courts must also afford due weight to the specific,
reasonable inferences drawn from the facts in light of the
officer’s experience and acknowledge that innocent facts,
when considered collectively, may permit the investigative
detention.
Thus, under the present version of Section 6308(b), in
order to establish reasonable suspicion, an officer must be able
to point to specific and articulable facts which led him to
reasonably suspect a violation of the Motor Vehicle Code . . . .
The determination of whether an officer had reasonable
suspicion that criminality was afoot so as to justify an
investigatory detention is an objective one, which must be
considered in light of the totality of the circumstances. See
Chase, [supra] at 120 (“[r]easonable suspicion sufficient to
stop a motorist must be viewed from the standpoint of an
objectively reasonable police officer” ). . . . It is the duty of the
suppression court to independently evaluate whether, under the
particular facts of a case, an objectively reasonable police officer
would have reasonably suspected criminal activity was afoot. As
the United States Supreme Court has explained:
[I]n justifying the particular intrusion the police
officer must be able to point to specific and articulable
facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion. The
scheme of the Fourth Amendment becomes meaningful
only when it is assured that at some point the conduct of
those charged with enforcing the laws can be subjected to
the more detached, neutral scrutiny of a judge who must
evaluate the reasonableness of a particular search or
seizure in light of the particular circumstances. And in
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making that assessment it is imperative that the facts be
judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the
search ‘warrant a man of reasonable caution in the belief’
that the action taken was appropriate? Anything less
would invite intrusions upon constitutionally guaranteed
rights based on nothing more substantial than inarticulate
hunches, a result this Court has consistently refused to
sanction. And simple “ ‘good faith on the part of the
arresting officer is not enough.’ * * * If subjective good
faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be
‘secure in their persons, houses, papers and effects,’ only
in the discretion of the police.[”]
Terry, [supra at 21–22] (citations and footnotes omitted).
[Our Supreme] Court has recognized the concerns
expressed by the [United States] Supreme Court in Terry,
noting, for example, “before the government may single out one
automobile to stop, there must be specific facts justifying this
intrusion. To hold otherwise would be to give the police
absolute, unreviewable discretion and authority to intrude into
an individual’s life for no cause whatsoever.” Moreover, as we
explained in [Commonwealth v.] Cook [735 A.2d 673 (Pa.
1999)], to demonstrate reasonable suspicion, an officer “must be
able to point to specific and articulable facts and reasonable
inferences drawn from those facts in light of the officer’s
experience.” [id.] at 677 (citation omitted). Thus, in order to
establish reasonable suspicion, an officer must articulate specific
facts in addition to inferences based on those facts, to
support his belief that criminal activity was afoot.
Commonwealth v. Holmes, 14 A.3d 89, 94-97 (Pa. 2011) (footnotes and
most case citations omitted) (emphases in original).
Here, on independent review, we conclude that the trial court properly
denied the motion to suppress. The court found, considering the totality of
the circumstances, (including the MVR), that Trooper Baker had reasonable
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suspicion to believe that Appellant was driving under the influence of
alcohol. (See Order, n.1 at unnumbered page 3).
His belief was based on his observation of her vehicle failing to stay in
its lane of travel, touching or crossing the double yellow lines in the middle
of the road, and braking erratically. (See N.T. Suppression, at 10). Based
on his training and experience, which included forty personal DUI stops and
another forty assists, Trooper Baker drew the inference that there might be
criminal activity afoot. (See id. at 5-6).3
Therefore, in his testimony, Trooper Baker pointed to “specific and
articulable facts” which led him to suspect criminal activity, namely driving
under the influence. Holmes, supra at 95; see also Terry, supra at 21.
The trial court properly denied the motion to suppress.
Appellant insists that “the MVR provides irrefutable evidence that [she]
did not exhibit any cues of criminal activity[.]” (Appellant’s Brief, at 13; see
also id. at 16-17). We disagree.
Appellant’s reliance on the video is misplaced. She notes that the
suppression court characterized the facts of the case as “borderline” (which,
in any event, she disputes). Quoting Commonwealth v. Gleason, 785
A.2d 983, 987 (Pa. 2001), and Commonwealth v. Swanger, 307 A.2d
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3
The trooper also noted that between the hours of ten at night and two in
the morning, there are higher rates of impaired drivers on the road. (See
N.T. Suppression, at 38).
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875, 879 (Pa. 1973), Appellant maintains that a borderline case is
inadequate to meet the Commonwealth’s burden of proof. (See id. at 17).
Appellant’s argument overlooks the fact that both Gleason and
Swanger were decided under the previously applicable probable cause
standard.4 The probable cause standard has been replaced by the less
stringent reasonable suspicion standard. See Holmes, supra at 94 n.12,
n.16 (Pa. 2011) (recognizing that probable cause standard for investigatory
stop has been superseded by statute). Appellant acknowledges that the
reasonable suspicion standard controls, (see Appellant’s Brief, at 14),
indeed, that reasonable suspicion is the “only . . . issue” raised in this
appeal. (Id. at 13 n.3).5 Appellant also explicitly disclaims any challenge to
the credibility determinations of the trial court. (See id. at 14). Appellant’s
claim does not merit relief.
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4
Appellant also relies on Commonwealth v. Baumgardner, 796 A.2d 965
(Pa. 2002). (See Appellant’s Brief, at 15). Baumgardner, a per curiam
reversal, explicitly relies on Gleason. Accordingly, Baumgardner is no
longer reliable precedent either.
5
However, Appellant mischaracterizes the trial court’s holding by claiming it
found that there was “insufficient cause” to stop her. (Appellant’s Brief, at
13 n.3). The trial court found that there was reasonable suspicion to stop
her, (see Order, n.1 at unnumbered page 3), but “if probable cause was
required,” Trooper Baker lacked sufficient information. (Id. at unnumbered
page 4) (emphasis added). Because the trial court’s contingent finding is
beyond the scope of this appeal, we need not review it on the merits, and
we decline to do so.
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It was the role of the suppression court sitting as fact finder to review
the evidence, to pass on the credibility of witnesses and the weight of the
evidence produced, and to believe all, part or none of the evidence. See
Harden, supra at 111. If the record supports the court’s factual findings,
we are bound by those facts and may reverse only if the legal conclusions
drawn therefrom are in error. See Holmes, supra at 96. It is not the role
of this Court to re-weigh the evidence, and we decline the invitation to do
so.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, and giving the Commonwealth the benefit of all
reasonable inferences to be drawn from the evidence, we conclude that
there was sufficient evidence, borderline or otherwise, to support the
suppression court’s finding of reasonable suspicion and denial of
suppression. See id.
The troopers could have followed Appellant for a longer period of time,
but decided not to for the safety of all concerned, including, presumably,
Appellant as well as oncoming traffic. (See N.T. Suppression, at 10) (“We
decided to stop the vehicle to avoid anything that may come.”).
In any event, disputing the number of times on the MVR that Appellant
intruded on the double yellow line, or not, and how far, misapprehends the
purpose and standard of our review. Even a combination of innocent facts,
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when taken together, may warrant further investigation by the police officer.
See Holmes, supra at 96.
Furthermore, on independent review, including the MVR, we conclude
that the suppression court’s factual findings are supported by the record.6
We are bound by those findings and may reverse only if the court’s legal
conclusions are erroneous. We conclude that the suppression court properly
applied the law to the facts. It was not necessary for the state troopers to
prolong the surveillance in order to rack up a higher number of line crossings
or other driving violations to establish reasonable suspicion. As noted by the
trial court, “[b]etter safe than sorry.” (N.T. Suppression, at 49).
Judgment of sentence affirmed.
Judge Solano joins the Memorandum.
Judge Shogan concurs in the result.
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6
Additionally, it bears noting that the suppression court reviewed the entire
body of evidence in the record, not just the MVR. There are inherent
limitations, not the least mechanical, in what a dashboard camera can
capture, especially at night. See “Justice Visualized: Courts and the Body
Camera Revolution,” 50 U.C. Davis L.R. 897, 936 (observing that “dash
camera videos yield only partial snapshots, often from a distant angle that
misses important details”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2017
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