J-A07042-19
2019 PA Super 125
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN CEPHUS :
:
Appellant : No. 1275 EDA 2018
Appeal from the Judgment of Sentence April 16, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0005962-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED APRIL 24, 2019
Appellant Jonathan Cephus appeals the judgment of sentence entered
by the Court of Common Pleas of Montgomery County after the lower court
convicted Appellant of Persons Not to Possess a Firearm,1 Firearms not to be
Carried Without a License,2 Possession of Drug Paraphernalia,3 and Driving on
Roadways Laned for Traffic.4 Appellant claims the lower court erred in denying
his motion to suppress evidence from a stop of his vehicle that was not
justified by the requisite suspicion.
We recognize the difficulties law enforcement officers face in deciding
whether to stop a vehicle for disregarding defined lanes of traffic, as our
decisions analyzing the validity stops based on a violation of Section 3309(1)
of the Vehicle Code have been inconsistent. After careful review, we affirm.
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1 18 Pa.C.S.A. § 6105(a)(1).
2 18 Pa.C.S.A. § 6106(a)(1).
3 35 P.S. § 780-113(a)(32).
4 75 Pa.C.S.A. § 3309(1).
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* Former Justice specially assigned to the Superior Court.
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On July 29, 2016, at 1:30 a.m., while traveling westbound on Route 422
in Limerick Township, Trooper Robert Beyer and Trooper Mark Musser
observed a silver Cadillac crossing over the center dotted line dividing the two
westbound lanes of Route 422. After noticing the driver of the Cadillac was
having trouble maintaining his lane, Trooper Beyer activated the patrol car’s
dash camera to record and monitor the Cadillac’s movements.
When asked how many times he saw the Cadillac cross the center line,
Trooper Beyer responded “I believe it was three times.” N.T., 4/19/17, at 8.
The dash camera footage shows the Cadillac crossing over the center line
three times in a twenty-second period, in which both of its driver’s side tires
consistently remained over the center line. Trooper Beyer estimated that the
Cadillac traveled “a couple hundred yards” in the time the dash camera was
recording, but indicated he was unsure of the actual distance. Id. at 22.
Trooper Beyer could not recall how many times he observed the Cadillac cross
over the center line before the dash camera was activated.
Upon observing that the driver of the Cadillac was “unable to maintain
its lane several times,” the troopers initiated a traffic stop of the vehicle. Id.
at 8. Once Trooper Beyer approached the vehicle, he immediately smelled a
strong odor of marijuana emanating from the car, observed numerous air
fresheners in the car, and noticed the driver, Appellant, was sweating.
Appellant complied with Trooper Beyer’s request to exit the vehicle and
consented to a search of the vehicle. Trooper Beyer discovered a handgun in
the center console and drug paraphernalia in the vehicle. At that point,
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Trooper Beyer stopped his search and placed Appellant in handcuffs. Trooper
Beyer had to call for emergency personnel as Appellant passed out.
Once Appellant was charged with the aforementioned offenses, he filed
a suppression motion, which the trial court subsequently denied. After a
bench trial, Appellant was convicted of Persons Not to Possess a Firearm,
Firearms not to be Carried Without a License, Drug Paraphernalia, and Driving
on Roadways Laned for Traffic. On April 16, 2018, the trial court sentenced
Appellant to an aggregate term of five to ten years’ imprisonment. Appellant
filed a timely post-sentence motion, which the trial court subsequently denied.
Appellant filed a pro se notice of appeal on April 30, 2018. The lower
court directed the Public Defender of Montgomery County to determine
whether Appellant desired the assistance of counsel or wanted to proceed pro
se, so that the lower court could schedule a Grazier hearing, if necessary. On
May 17, 2018, the Public Defender’s Office formally entered its appearance on
behalf of Appellant, who indicated that he wanted the assistance of counsel
on appeal. Appellant complied with the trial court’s direction to file a Concise
Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).
Appellant’s sole argument on appeal is that the trial court erred in
denying his suppression motion as he alleges that he was subjected to an
unlawful vehicle stop that was not justified by probable cause. When
reviewing a trial court’s decision to deny a suppression motion, our standard
of review is as follows:
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Our standard of review in addressing a challenge to a
trial court's denial of a suppression motion is whether the
factual findings are supported by the record and whether
the legal conclusions drawn from those facts are correct.
When reviewing the ruling of a suppression court, we must
consider only the evidence of the prosecution and so much
of the evidence of the defense as remains uncontradicted
when read in the context of the record.... Where the record
supports the findings of the suppression court, we are bound
by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007)
(citations omitted). “It is within the suppression court's sole
province as factfinder to pass on the credibility of witnesses and
the weight to be given their testimony.” Commonwealth v.
Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006). Moreover, we
note that our scope of review from a suppression ruling is limited
to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). In addition,
questions concerning the admission and exclusion of evidence are
within the sound discretion of the trial court and will not be
reversed on appeal absent an abuse of discretion.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
Commonwealth v. Lloyd, ___A.3d___, 1469 WDA 2017, at *5 (Pa.Super.
2019).
Section 6308(b) of the Motor Vehicle Code defines the requisite level of
suspicion for a traffic stop:
Whenever a police officer ... 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). However, “[t]raffic stops based on a reasonable
suspicion: either of criminal activity or a violation of the Motor Vehicle Code
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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) (citation omitted). For a stop based on the observed violation of
the vehicle code or otherwise non-investigable offense, an officer must have
probable cause to make a constitutional vehicle stop. Id. (“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 this case, Trooper Beyer initiated a traffic stop based on Appellant’s
disregard for traffic lanes pursuant to Section 3309(1) of the Motor Vehicle
Code (“Driving on Roadways Laned for Traffic”), which provides:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic the following rules in addition to all others
not inconsistent therewith shall apply:
(1) Driving within single lane.--A vehicle shall be driven
as nearly as practicable entirely within a single lane and
shall not be moved from the lane until the driver has first
ascertained that the movement can be made with safety.
75 Pa.C.S.A. § 3309(1). This Court has found that an officer must have
probable cause to justify a traffic stop for a violation of Section 3309(1).
Feczko, 10 A.3d at 1292.
To determine whether probable cause exists, we must
consider whether the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, 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.
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Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa.Super. 2015) (quoting
Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991))
(quotation marks omitted). In Commonwealth v. Anderson, 889 A.2d 596
(Pa.Super. 2005), this Court found that the vehicle stop was supported by
probable cause as the arresting officer observed Anderson’s vehicle straddling
the double yellow lines for two blocks, stopping for an inordinate and
inexplicable amount of time without being prompted to do so by traffic
signals.5
In this case, Trooper Beyer had probable cause to stop Appellant’s
vehicle for a violation of Section 3309(1). After Trooper Beyer initially took
notice to Appellant’s vehicle crossing over the center dotted line dividing the
westbound lanes of Route 422, Trooper Beyer activated his patrol car’s dash
camera to monitor Appellant’s movements. Although Trooper Beyer could not
recall how many times he saw Appellant’s vehicle cross the center line before
he activated the camera, it is reasonable to infer that Trooper Beyer observed
Appellant’s vehicle exit his lane on at least one occasion to cause Trooper
Beyer to activate the dash camera.
Thereafter, the dash camera footage, which was entered into evidence
at the suppression hearing, clearly shows Appellant’s vehicle drift over the
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5 But see Commonwealth v. Gleason, 567 Pa. 111, 112, 785 A.2d 983,
983 (2001) (concluding that the Superior Court erred in holding that the
arresting officer was justified in conducting a traffic stop after observing
Gleason’s vehicle “cross the berm line by six to eight inches on two occasions
for a period of a second or two over a distance of approximately one quarter
of a mile”).
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center line three times in a twenty-five second period, in which both of its
driver’s side tires consistently remained over the center line. Thus, the record
supports an inference that Trooper Beyer observed Appellant’s vehicle cross
over the center line at least four times in a brief period of time. We also
observe that Appellant’s repeated movement over the center line dividing two
lanes of traffic is a more serious safety concern than a vehicle crossing the
berm line away from traffic.
As a result, we find the trial court did not err in finding Trooper Beyer
had probable cause to stop Appellant’s vehicle when Trooper Beyer “observed
the vehicle failing to maintain its lane on multiple occasions and stopped the
vehicle only after observing repeated violations.” Trial Court Opinion,
6/15/18, at 5.
Our precedent shows that our courts have had difficulty analyzing
whether the facts of a particular case provide probable cause to conduct a
traffic stop based on a violation of Section 3309(1). See Anderson, 889 A.2d
596 (outlining the myriad of fact patterns in appeals challenging the validity
of vehicle stops based on a suspected Section 3309(1) violation).6
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6 But see also Anderson, 889 A.2d at 604 (Gantman, P.J., dissenting)
(noting that “this Court continues to review the numerous fact patterns in
traffic stop cases largely by comparing the fact pattern of one case to the fact
pattern of another case, which frequently leads to blurry analysis and
inconsistent decisions” and suggesting that we should “review the activity
alleged in light of the statutes involved, so we can reach more reliable
results”).
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Although we recognize that an individual does not lose all reasonable
expectation of privacy in traveling in an automobile, officers must be given a
sufficient degree of latitude to further the Commonwealth’s interest of
enforcing rules and regulations that were designed to promote safety of all
who travel on the roads of the Commonwealth. See Gleason, 567 Pa. at 120,
785 A.2d at 988.7
For the foregoing reasons, we conclude that the trial court properly
denied Appellant’s suppression motion and we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
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7 We urge the Legislature to provide further clarification of the offense listed
in Section 3309 (as well as for suspected drunk driving) as to when a police
officer can make a legal traffic stop. Moreover, the Gleason decision, which
was filed years ago when the only Justice currently on the Supreme Court,
Chief Justice Saylor, noted his dissent, should be re-examined in light of the
logistical problems it creates for law enforcement.
To require a police officer to count how many times a vehicle is weaving
before initiating a vehicle stop can lead to tragic consequences. While there
might not appear to be a safety hazard at the precise moment a police officer
sees a vehicle being driven erratically, that situation can change in an instant.
The current state of the law does not give realistic guidance to law
enforcement.
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