J-A13033-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE EDWARD KEKOA FUCHIGAMI :
:
Appellant : No. 1124 MDA 2022
Appeal from the Judgment of Sentence Entered July 14, 2022
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000603-2021
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 7, 2023
Lee Edward Kekoa Fuchigami appeals from the July 14, 2022 aggregate
judgment of sentence of 24 to 84 months’ imprisonment imposed after a jury
found him guilty of driving under the influence of alcohol – highest rate of
alcohol (“DUI”) and driving while operating privilege is suspended or revoked.1
After careful review, we affirm the judgment of sentence.
The suppression court summarized the relevant facts of this case as
follows:
1. Trooper Logan Howell is employed with the
Pennsylvania State Police. Trooper Howell has
been employed with the State Police for two
years.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(c), 1543(a), and (b)(1.1)(i), respectively.
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2. Trooper Howell has undergone Driving Under
the Influence (DUI) training at the Pennsylvania
State Police Academy. Trooper Howell has been
involved in approximately 50 DUI motor vehicle
stops.
3. On December 5, 2020, at approximately 1:28
AM, Trooper Howell came upon a vehicle
traveling directly in front of him on Centennial
Road, Conewago Township, Adams County.
4. As the vehicle came upon a slight bend to the
left in the roadway, Trooper Howell observed it
drift toward the outside of the lane of travel,
then drift back to the inside of the lane, crossing
onto the yellow middle line. The vehicle then
immediately drifted back to the outside of the
lane, with the passenger-side tires of the vehicle
crossing completely over the white fog line.
5. Trooper Howell initiated a traffic stop and
identified [Appellant] as the driver of the
vehicle.
6. Trooper Howell’s testimony of the above-
described driving behavior and subsequent
traffic stop were recorded and corroborated by
[Motor Vehicle Recording “(MVR”)] dash-cam
video.
Suppression court opinion, 8/31/21 at 1-2.
Upon stopping the vehicle, Trooper Howell indicated that he observed
Appellant demonstrate multiple signs of intoxication, including blood shot and
glassy eyes and the strong odor of alcohol emanating from the vehicle and his
person. Following the administration of field sobriety tests, Appellant
underwent a BAC test which revealed that his blood alcohol content was .19%
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at 2:23 am. See Criminal Complaint – Affidavit of Probable Cause, 1/5/21 at
1. Appellant was subsequently arrested and charged with DUI and related
offenses.
On June 23, 2021, Appellant filed an omnibus pretrial suppression
motion challenging, inter alia, the legality of the traffic stop. See “Omnibus
Pre-Trial Motion,” 6/23/21 at ¶¶ 13-33. On August 19, 2021, the suppression
court conducted a hearing on Appellant’s suppression motion, at which time
Trooper Howell testified. Notes of testimony, 8/19/21 at 4-10. Following the
hearing, the suppression court denied Appellant’s suppression motion on
August 31, 2021. Thereafter, Appellant proceeded to a jury trial on February
3, 2022 and was found guilty of the aforementioned offenses. As noted, trial
court sentenced Appellant to an aggregate term of 24 to 84 months’
imprisonment on July 14, 2022. This timely appeal followed on August 3,
2022.
On August 5, 2022, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on August
17, 2022. On August 22, 2022, the trial court filed a statement in lieu of a
Rule 1925(a) opinion, indicating that it was relying on the reasoning set forth
in its prior August 31, 2021 opinion.
Appellant raises the following issues for our review:
1. Whether the [suppression] court judge applied
the wrong quantum of cause requiring the
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officer to have only reasonable suspicion,
instead of probable cause, that [Appellant] was
violating the Motor Vehicle Code?
2. Whether the Trooper lacked probable cause to
stop Appellant’s vehicle?
3. In the alternative, whether the Honorable
[suppression] court lacked reasonable suspicion
to stop [Appellant’s] vehicle[?]
Appellant’s brief at 5 (extraneous capitalization and headings omitted).
Our standard of review in addressing a challenge to a denial of a
suppression motion is well settled.
[Our] 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.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
“Both the Fourth Amendment of the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution guarantee an individual’s
freedom from unreasonable searches and seizures.” Commonwealth v.
Bostick, 958 A.2d 543, 550 (Pa.Super. 2008) (citation and internal quotation
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marks omitted), appeal denied, 987 A.2d 158 (Pa. 2009). “To secure the
right of citizens to be free from such intrusions, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of suspicion to
justify their interactions with citizens to the extent those interactions
compromise individual liberty.” Commonwealth v. Reppert, 814 A.2d 1196,
1201 (Pa.Super. 2002) (citation omitted).
This court has recognized three types of interactions between members
of the public and the police:
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative
detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention”
must be supported by probable cause.
Commonwealth v. Way, 238 A.3d 515, 518 (Pa.Super. 2020) (citation
omitted). Thus, pursuant to the Fourth Amendment, a person may not be
lawfully seized, either by means of an investigative detention or a custodial
detention, unless the police possess the requisite level of suspicion.
The level of suspicion that a police officer must possess before initiating
a traffic stop is codified in 75 Pa.C.S.A. § 6308(b), which provides as follows:
(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
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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).
This Court has recognized that,
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.
Commonwealth v. Smith, 177 A.3d 915, 919 (Pa.Super. 2017) (citation
omitted).
Thus, “mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant to the
suspected violation.” Commonwealth v. Feczko, 10 A.3d 1285, 1291
(Pa.Super. 2010) (en banc) (citation omitted), appeal denied, 25 A.3d 327
(Pa. 2011). Rather, police officers are required to possess probable cause to
stop a vehicle based on observed violation of the Motor Vehicle Code (“MVC”)
or otherwise non-investigable offense. Id.
“Pennsylvania law makes clear that a police officer has probable cause
to stop a motor vehicle if the officer observes a traffic code violation, even if
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it is a minor offense.” Commonwealth v. Harris, 176 A.3d 1009, 1019
(Pa.Super. 2017) (citation omitted).
Probable cause is made out when 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.
The question we ask is not whether the officer’s belief
was correct or more likely true than false. Rather, we
require only a probability, and not a prima facie
showing, of criminal activity. In determining whether
probable cause exists, we apply a totality of the
circumstances test.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal
quotation marks and citations omitted).
Instantly, our review of the record in this matter establishes that
Trooper Howell possessed the requisite probable cause to stop Appellant’s
vehicle for violations of the MVC, namely 75 Pa.C.S.A. §§ 3301(a) and
3309(1).
Section 3301, Driving on right side of roadway, provides, in relevant
part, as follows:
(a) General rule. -- Upon all roadways of sufficient
width, a vehicle shall be driven upon the right half of
the roadway except as follows:
(1) When overtaking and passing another vehicle
proceeding in the same direction where
permitted by the rules governing such
movement.
(2) When an obstruction exists making it necessary
to drive to the left of the center of the roadway,
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provided the driver yields the right-of-way to all
vehicles traveling in the proper direction upon
the unobstructed portion of the roadway within
such distance as to constitute a hazard.
(3) When and where official traffic-control devices
are in place designating a lane or lanes to the
left side of the center of the roadway for the
movement indicated by the devices.
(4) Upon a roadway restricted to one-way traffic.
(5) When making a left turn as provided in sections
3322 (relating to vehicle turning left) and 3331
(relating to required position and method of
turning).
(6) In accordance with section 3303(a)(3) (relating
to overtaking vehicle on the left).
75 Pa.C.S.A. § 3301(a).
Section 3309, Driving on roadways laned for traffic, provides, in
relevant part, as follows:
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).
Instantly, Trooper Howell testified that in the early morning hours of
December 5, 2020, he was on patrol on Centennial Road in Conewago
Township, Adams County, Pennsylvania when he observed “[t]he poor driving
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of [Appellant’s] vehicle on the roadway.” Notes of testimony, 8/19/21 at 5.
Specifically, Trooper Howell testified that he was following Appellant’s vehicle
from behind when observed it drift to the outside of his lane toward the white
fog line as he entered a slight left bend in the roadway. Id. at 7. Trooper
Howell then observed Appellant’s vehicle drift back toward the center of the
roadway and onto the double-yellow line, before drifting back to the shoulder
of the road, with the passenger-side tires of the vehicle completely crossing
over the white fog line. Id. at 7-8. At this point, Trooper Howell activated
his lights and sirens to conduct a traffic stop based upon these traffic
violations. Id. at 9-10.
Trooper Howell further testified that he has undergone DUI training
during his two-year employment with the Pennsylvania State Police and has
participated in approximately 50 DUI-related traffic stops. Id. at 4-5. The
suppression court found that the MVR footage from Trooper Howell’s patrol
vehicle that was submitted into evidence corroborates his testimony. Id. at
6; see also suppression court opinion, 8/31/21 at 4.
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Based on the foregoing, we conclude that Trooper Howell possessed the
requisite probable cause to stop Appellant’s vehicle for a violation of Sections
3301(a) and 3309(1). Accordingly, we discern no error on the part of the
suppression court in denying Appellant’s suppression motion and affirm his
July 14, 2022 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2023
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