J-A30012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL W. SMITH, SR. :
:
Appellant : No. 268 WDA 2016
Appeal from the Judgment of Sentence January 20, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008831-2015
BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED: February 15, 2018
Michael W. Smith, Sr. appeals from the January 20, 2016 judgment of
sentence of ninety days imprisonment followed by eighteen months
probation, a $1,500 fine, and completion of drug and alcohol treatment and
Alcohol Highway Safety School. Sentence was imposed after he was
convicted at a stipulated non-jury trial of driving under the influence (DUI)
highest rate of alcohol (second offense), DUI general impairment/incapable
of safe driving (second offense), and prohibitions in specified places.1 We
affirm.
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1 75 Pa.C.S. § 3353, Prohibitions in Specified Places, provides in pertinent
part:
(a) General Rule – Except when necessary to avoid conflict with
other traffic or to protect the safety of any person or vehicle or
(Footnote Continued Next Page)
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The trial court succinctly summarized the evidence.
[O]n May 10, 2015, City of Pittsburgh Police Officers, including
Officer Dennis Baker, were on duty in the West End of
Pittsburgh. Baker was on a call for a female down on a sidewalk
when another call came in for a parking complaint close by.
Specifically, the complaint was from a resident a 3229 Huxley
Street that a Chevy vehicle bearing license plate JLZ6141 was
blocking her driveway and she couldn’t get out. Due to the
nature of the call for the woman down, Officers remained at that
scene before a second call came in from the resident at 3229
Huxley regarding the Chevy blocking her driveway. Officers
proceeded to the Huxley Street address one hour after the first
call from the resident. Upon arrival Officer Baker observed the
Chevy vehicle parked in front of the driveway at 3229 Huxley.
The defendant was in the driver’s seat with loud music playing in
the vehicle and when he observed the police he immediately
drove off. The complainant/homeowner approached the Officer
and said she believed that the defendant was intoxicated.
Officer Baker and his partner followed the defendant’s vehicle for
two blocks and initiated a traffic stop with the intention of citing
the defendant for blocking the complainant’s driveway and
investigate possible criminal activity. Officers activated their
lights and sirens and the defendant pulled over in an area that
he claimed was his driveway. The defendant immediately exited
his vehicle with his hands in the air and approached the patrol
car. Officers told the defendant to stop, yet he continued to
approach. His clothes were in disarray, his belt was undone and
his shoes untied. His eyes were bloodshot and watery and he
had difficulty standing, was holding on to the vehicle to maintain
balance and admitted to consuming alcohol earlier in the day.
The defendant performed poorly on standardized field sobriety
tests and was taken to the station for testing. His blood alcohol
was determined to be .364%.
(Footnote Continued) _______________________
in compliance with law or the directions of a police officer or
traffic-control device, no person shall
...
(2) Stand or park a vehicle
(i) in front of a public or private driveway.
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Trial Court Opinion, 8/7/17, at 2-3.
Following his arrest, Appellant filed an omnibus pretrial motion in
which he sought to suppress evidence based on a lack of reasonable
suspicion or probable cause for the traffic stop. Following a hearing, the trial
court denied the motion. Appellant proceeded to a non-jury trial and agreed
to the incorporation of the evidence from the suppression hearing. The trial
court found him guilty of all charges. Following sentencing, Appellant filed a
timely notice of appeal. After several extensions due to difficulties in
obtaining a transcript of the suppression hearing, Appellant complied with
the trial court’s order to file a concise statement of matters complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Appellant presents one issue for our review: “Did the police have the
requisite probable cause to perform a traffic stop of Mr. Smith’s vehicle for
violating § 3353(A)(2) of the Motor Vehicle Code where there were no
reasonable grounds to believe that Mr. Smith was driving under the
influence?” Appellant’s brief at 5 (unnecessary capitalization omitted).
In reviewing the trial court’s denial of a suppression motion,
We review the denial of a motion to suppress by examining
whether the trial court's factual findings are supported by the
record. In doing so, we consider all of the Commonwealth's
evidence, as the succeeding party, as well as any defense
evidence that went uncontradicted. We are bound by any factual
findings that are supported by the record. However, we owe no
deference to any legal conclusions drawn by the trial court. To
the contrary, we review those conclusions de novo.
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Commonwealth v. Jacoby, 170 A.3d 1065 (Pa. 2017) (internal citations
omitted).
At issue is the legality of the vehicle stop herein. The following
principles inform that determination. In Commonwealth v. Feczko, 10
A.3d 1285 (Pa.Super. 2010) (en banc), this Court explained that, depending
on the circumstances, a police officer must have either reasonable suspicion
or probable cause before effectuating a traffic stop. A traffic stop based on a
reasonable suspicion of a Motor Vehicle Code violation or criminal activity
must serve a stated investigatory purpose. Mere suspicion is not enough
where the driver’s detention cannot further an investigatory purpose
associated with the suspected violation.
The distinction between Motor Vehicle Code offenses that require
probable cause and those that require only reasonable suspicion was
explained in Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.Super.
2015).
[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. 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 travelling upon a highway. On the other hand, if an officer
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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.
This test was further deleniated in Commonwealth v. Haines, 166
A.3d 449, 455 (Pa.Super. 2017). We reasoned that, when vehicle stops
were effectuated for offenses such as speeding, failing to stay in a single
lane, or driving the wrong way on a one way street, it would be unlikely to
find further evidence relevant to the offense in the vehicle. In such
circumstances, the Terry2 rationale permitting further investigation based
on reasonable suspicion did not justify the stop.
The Commonwealth does not dispute that probable cause was
necessary to justify the traffic stop based on the Motor Vehicle Code
violation for blocking a driveway. Appellant argues first that a vehicle
blocking a driveway is a “common” call in that area, and that commission of
that offense “in and of itself” is insufficient to establish probable cause to
stop Appellant’s vehicle. Appellant’s brief at 14. In order for the officer to
lawfully stop the vehicle for a violation of 75 Pa.C.S. § 3353, Appellant
contends that the officer would have had to reasonably believe that
Appellant “was committing another offense.” Appellant’s brief at 13
(emphasis added). Appellant then segues into an assertion, without more,
____________________________________________
2 Terry v. Ohio, 392 U.S. 1 (1968).
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that the caller who told police that she believed Appellant was intoxicated
did not testify at the suppression hearing.
The Commonwealth counters that, in order to lawfully stop Appellant’s
vehicle, Officer Baker had 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 driver was in some violation of some provision of
the Vehicle Code.” Commonwealth v. Lindblom, 854 A.2d 604, 607
(Pa.Super. 2004). In determining whether the officer had probable cause,
we should “look to the totality of the circumstances as viewed through the
eyes of a reasonable police officer guided by experience and training.”
Commonwealth v. Wells, 916 A.2d 1192 (Pa.Super. 2007). The
Commonwealth cites Commonwealth v. Chase, 960 A.2d 108, 113
(Pa.Super. 2008), in support of its contention that where a police officer
observes a traffic code violation, he has probable cause to stop the vehicle
even if the offense is a minor one.
Officer Baker testified that he initiated the traffic stop in order to
further investigate and cite Appellant for the violation of 75 Pa.C.S. §
3353(a)(2)(i), which prohibits a person from standing or parking a vehicle in
front of a public or private driveway. The suppression court found that
Officer Baker articulated sufficient facts in support of a violation, i.e., that
Appellant’s vehicle blocked the resident’s driveway for over an hour.
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The notes of testimony from the suppression hearing confirm that
Appellant’s suppression challenge was limited to the validity of the stop.
N.T., 1/7/16, at 3. Officer Dennis Baker testified that he and his partner
responded after receiving the second of two dispatches regarding 911 calls
reporting a car blocking the caller’s driveway. The police were delayed in
responding because they were tending to an injured person while waiting for
medics to arrive. The complainant had provided a description of the vehicle
and its license plate number. Upon arriving, Officer Baker and his partner
noted that a vehicle matching the description they had been given was
blocking the driveway. Appellant was in the driver’s seat and loud music
was emanating from the vehicle. When Appellant saw the officers, he drove
away. The caller exited her residence and spoke to police. She informed
them that she believed that Appellant was intoxicated. The officers followed
the vehicle for two blocks and then activated lights and sirens. Appellant
stopped his vehicle, exited, and approached the officers, disregarding their
direction to stop. Viewing his conduct as threatening, the officers restrained
him for their safety. Thereafter, the officers observed indications that
Appellant was intoxicated.
Appellant offers no authorities in support of his contention that an
observed violation of the Motor Vehicle Code for parking in front of another
person’s driveway, standing alone, cannot provide probable cause for police
to stop the vehicle. To the extent that Appellant is arguing that the Motor
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Vehicle Code violation herein is only a secondary offense that alone would
not justify the stop, his position is undeveloped and unsupported. See e.g.
Commonwealth v. Henderson, 663 A.2d 728, 737 (Pa.Super. 1995)
(holding that no violation of the Motor Vehicle Code occurs when a driver or
front-seat passenger over the age of four fails to fasten seat belt until the
driver simultaneously violates another provision of the Code). Appellant’s
bald assertion, devoid of “reasoned and developed arguments supported
with citations to relevant legal authority,” is not reviewable and waived for
lack of development. Commonwealth v. Spotz, 18 A.3d 244, 326 (Pa.
2011); see also Pa.R.A.P. 2119.
We find that the officer articulated specific facts that provided probable
cause to believe Appellant violated 75 Pa.C.S. § 3343(a)(2)(i), see footnote
1, supra, and which justified the stop. The officer also confirmed there was
no construction on the street or road conditions that would provide a
defense to the violation. Hence, the record supports the suppression court’s
finding that there was probable cause for the vehicle stop, and that the
evidence gleaned from the stop was admissible.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2017
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