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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CLAIR EDWIN BARRY, III : No. 1948 MDA 2018
Appeal from the Order Entered October 30, 2018
in the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000637-2018
BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 29, 2019
The Commonwealth of Pennsylvania appeals from the Order granting
the Motion to Suppress filed by Clair Edwin Barry, III (“Barry”), in this driving
under the influence of alcohol (“DUI”) case.1 We affirm.
In its Opinion and Order, the suppression court set forth the relevant
factual and procedural history as follows:
On December 30, 2017[,] at approximately 10:50 p.m., … Barry
and Trooper [Christopher] Pifer [(“Trooper Pifer”)] of the
Pennsylvania State Police were both traveling on [State Route]
144 in Bellefonte, Pennsylvania. There was snow on the ground
from a recent snowfall. [Barry] was driving a pick-up truck. As
the vehicles approached one another[,] headed in opposite
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1 The Commonwealth complied with Pa.R.A.P. 311(d), which provides that
“[i]n a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution.”
Pa.R.A.P. 311(d); Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa.
Super. 2017).
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directions of travel, Trooper Pifer observed [Barry’s] truck cross
the white fog line [by] approximately half [of] the truck[’s] width.
Observing this transgression, Trooper Pifer turned around to
follow [Barry’s] vehicle. As he followed [Barry], Trooper Pifer
observed [Barry] make a sharp turn onto North Allegheny Street
from [State Route] 144, taking the turn wide and crossing the
double yellow center line with his left tire as he did so. Trooper
Pifer testified that the turn onto Allegheny Street is a very sharp
turn, and one he does not often see drivers take. Nevertheless,
he believed it is possible to stay fully within the appropriate lane
of travel while making the turn. Trooper Pifer acknowledged that
he also took the turn wide, crossing the center line, as he followed
[Barry] on the evening of December 30, indicating that his
attention was focused on following [Barry’s] vehicle. There were
no other vehicles in or around the intersection at that time.
Shortly after turning onto North Allegheny Street, Trooper
Pifer observed [Barry’s] vehicle again cross the double yellow
center line. Trooper Pifer testified that, on this occasion, [Barry’s]
vehicle crossed over the line by a few inches. He estimated that
this occurred 50 to 100 feet from the curve up ahead in the road.
There was no other traffic on the roadway at the time, nor were
there pedestrians in the vicinity. The roadway shoulder in that
area is relatively narrow.
After seeing [Barry] cross the center line a second time,
Trooper Pifer conducted a traffic stop. Further investigation based
on the events unfolding during the stop lead [sic] to [Barry’s]
arrest for [DUI].
Opinion and Order, 10/30/18, at 1-2.
On June 19, 2018, Barry filed a Motion to Suppress, asserting that
Trooper Pifer lacked probable cause to perform a vehicle stop. The
suppression court conducted a suppression hearing on August 31, 2018,
wherein Trooper Pifer testified. By an Opinion and Order entered on October
30, 2018, the suppression court granted Barry’s Motion to Suppress. The
suppression court concluded that Trooper Pifer lacked probable cause to stop
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Barry’s vehicle based on Barry’s momentary breaches of the center and fog
lines on the road. See id. at 3-5.
The Commonwealth filed a Motion for Reconsideration on November 2,
2018, arguing that the suppression court relied on an inaccurate
representation of the law. On November 28, 2018, before the suppression
court ruled on the Motion for Reconsideration, the Commonwealth filed a
timely Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of errors complained of on appeal.
The Commonwealth now presents the following claim for our review:
“Whether the suppression court erred in concluding [that] Trooper Pifer did
not have probable cause to stop [Barry’s] vehicle for a violation of 75 Pa.C.S.A.
§ 3309(1)?” Commonwealth’s Brief at 7.
We are mindful of the following standard of review:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa. Super. 2016) (citation
omitted).
Trooper Pifer conducted a traffic stop based on a suspected violation of
75 Pa.C.S.A. § 3309(1), which provides as follows:
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§ 3309. Driving on roadways laned for traffic
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).
In order to conduct a traffic stop based on an observed violation of
section 3309(1), a police offer must have probable cause. Commonwealth
v. Cephus, 208 A.3d 1096, 1099 (Pa. Super. 2019); see also
Commonwealth v. Ibrahim, 127 A.3d 819, 823 (Pa. Super. 2015)
(explaining that “[i]f 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.” (citation omitted)).
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.
Id. at 824 (citation and quotation marks omitted). But see Cephus, 208
A.3d at 1097 (acknowledging confusion and inconsistency in this Court’s
decisions analyzing the validity of stops based on violations of section
3309(1)).
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The suppression court concluded that Trooper Pifer lacked probable
cause to stop Barry’s vehicle for a violation of section 3309(1), stating as
follows:
[T]he Commonwealth asserts Trooper Pifer had probable cause to
believe [Barry] violated section 3309(1) based on three separate
incidents. The first incident involved [Barry] crossing the fog line
while approaching Trooper Pifer on State Route 144. The
testimony established that [Barry] straddled the fog line for a brief
period, and that there were no other vehicles on the road at the
time. Furthermore, there was no indication that the movement of
[Barry’s] vehicle was erratic. In this instance, probable cause to
believe [Barry] violated section 3309(1) did not exist because
there was no evidence that [Barry] created a safety hazard in
briefly crossing over the fog line. In the second incident, Trooper
Pifer observed [Barry’s] vehicle cross over the center line, out of
its lane of travel, as [Barry] made a very sharp[,] right-hand turn
onto North Allegheny Street. Trooper Pifer testified that he, too,
was outside the lane of travel as he made the same turn while
following [Barry]. Again, the evidence reflected there was no
traffic in the opposing lane of travel, and there was no indication
of any sudden or erratic movement by [Barry’s] vehicle. As with
the first transgression, the [c]ourt finds probable cause to believe
a violation of 3309(1) is lacking[,] because there was no evidence
that [Barry’s] conduct created a safety hazard.
With regard to the third alleged violation, Trooper Pifer
testified that [Barry] very briefly crossed the double yellow lines
by a few inches[,] with the left-side tires with traveling on North
Allegheny Street. There was no vehicular or pedestrian traffic in
the vicinity, and [Barry’s] vehicle did not obstruct the opposing
lane of travel. Although the Commonwealth points to the fact that
[Barry] was approaching a hill and a blind curve in the roadway
ahead, it does not appear from the evidence, including the video
camera evidence presented at the hearing, that these features
were so close to the spot [Barry] momentarily breached the center
line so as to create a safety hazard in doing so. Accordingly, as
with the first two incidents, the [c]ourt determines probable cause
was not present based on this third incident.
In sum, looking to each of the incidents allegedly giving rise
to probable cause for the stop, … the [c]ourt concludes [that]
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Trooper Pifer lacked probable cause to stop [Barry’s] vehicle for a
violation of section 3309(1).
Opinion and Order, 10/30/18, at 4-5 (internal citations omitted).
We have reviewed the transcripts of the suppression hearing, as well as
the dash camera recording, which was admitted into evidence during the
hearing.2 Initially, the dash camera recording does not include footage of
Barry’s first alleged violation, which prompted Trooper Pifer to make a U-turn
and follow Barry’s vehicle. See N.T., 8/31/18, at 13. Trooper Pifer testified
that as he passed Barry’s vehicle on State Route 144, he observed the vehicle
straddle the white fog line. See id. at 7. According to Trooper Pifer, Barry’s
vehicle remained over the fog line for “a short period of time,” before returning
to the lane of travel. Id. at 17-18; see also id. at 18 (agreeing that the
duration of the violation was less than a couple of seconds).
Regarding the second alleged violation, our review confirms that
although Barry crossed the center line while making a sharp right turn onto
North Allegheny Street, he returned to his lane of travel after completing the
turn. See id. at 8-9 (wherein Trooper Pifer testified that Barry made a wide
right turn, crossing the double yellow line into the other lane of traffic).
However, nothing in the record indicates that his movement created a safety
risk for himself or others, and Trooper Pifer himself left his lane of travel while
making the turn. See id. at 9, 22 (wherein Trooper Pifer acknowledged that
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2Trooper Pifer testified that the dash camera automatically starts recording
when the patrol car’s emergency lights are activated, and includes
approximately 40-45 seconds of footage prior to activation. See N.T.,
8/31/18, at 12.
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he left his lane of travel while making the turn behind Barry’s vehicle), 23
(wherein Trooper Pifer agreed that the turn would be difficult to navigate in a
larger vehicle); see also id. at 23 (wherein Trooper Pifer testified that there
were no vehicles, pedestrians or cyclists in the opposing lane of travel when
Barry made the turn); Commonwealth v. Cook, 865 A.2d 869, 874 (Pa.
Super. 2004) (stating that “[w]hether an officer possesses probable cause to
stop a vehicle for a violation of [] section [3309(1)] depends largely upon []
whether a driver’s movement from his lane is done safely.”).
Additionally, regarding the third alleged violation, our review confirms
that Barry’s left tires crossed the center line on North Allegheny Street prior
to reaching a turn in the road. See N.T. 8/31/18, at 8-9 (wherein Trooper
Pifer testified that Barry’s tires crossed the center line “in close proximity to
the turn”), 25 (stating that Barry was approximately 50 to 100 feet away from
the curve when he crossed the center line). However, like the other alleged
violations, there is no indication in the record that Barry created a safety risk.
See id. at 25 (wherein Trooper Pifer acknowledged that there were no
vehicles, pedestrians or cyclists in the opposing lane of travel); see also
Cook, supra.
Based upon the foregoing, we conclude that the trial court’s findings are
supported by the record, and its conclusions are sound. See Korn, supra.
Here, Barry crossed the fog and center lines only briefly. See
Commonwealth v. Enick, 70 A.3d 843, 847 (Pa. Super. 2013) (stating that
the statutory language of section 3309(1), which requires motorists to
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maintain a single lane “as nearly as practicable,” “does not foreclose minor
deviations.”). Additionally, the record confirms that Barry’s actions did not
pose a safety risk to other motorists, and nothing in the record suggests that
he was otherwise driving erratically. See Cook, supra; cf. id. at 374-75
(concluding that officer had probable cause to stop defendant for a violation
of section 3309(1), where an officer observed defendant “drive over the right
fog line to the extent of half the vehicle width, three times, and then rapidly
jerk back into his lane of travel[,]” over the distance of one mile, and another
officer had previously observed defendant driving erratically); Cephus, 208
A.3d at 1099-1100 (concluding that, where officer observed defendant’s
vehicle at least once before activating his dash camera, and the camera
showed defendant’s vehicle “drift over the center line three times in a twenty-
five second period” and remain consistently over the line, probable cause
existed to stop defendant for a section 3309(1) violation).
Based upon the foregoing, we conclude that the suppression court
properly concluded that Trooper Pifer lacked probable cause to stop Barry’s
vehicle for a violation of section 3309(1). We therefore affirm the Order
granting Barry’s Motion to Suppress.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2019
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