Commonwealth v. Wituszynski

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered November 2, 1998, in the Court of Common Pleas of Allegheny County after Appellant’s conviction for Driving Under the Influence of Alcohol or Controlled Substance, (“DUI”), 75 Pa.C.S. §§ 3731(a)(1) and 3731(a)(4), and for Overtaking a Vehicle on the Right, (“OVR”), 75 Pa.C.S. § 3304. On appeal, Appellant contends that the suppression court erred in failing to suppress the physical evidence obtained by police. We affirm.

¶ 2 The standard of review applied to a claim of suppression court error is well established:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontra-dicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 178-179 (1992) (citation omitted).

¶ 3 The relevant facts and procedural history are as follows: On October 11, 1997, at approximately 6:30 p.m., Appellant was driving his vehicle west along Pearce Mill Road in North Park when he approached a fine of between five and eight cars stopped ahead of him. N.T. 10/13/98 at 13. Sergeant Richard Traeger of the Allegheny County Police Department had ordered the cars to stop while he ushered a flock of geese from the middle of the roadway onto an adjacent parking lot. N.T. at 5. Off the road and seemingly out of danger, the geese appeared to need Sergeant Traeger’s assistance no longer as they began across the relatively empty parking lot toward a natural setting. Sergeant Traeger, therefore, made his way back to Pearce Mill Road where he had parked his patrol car. Id.

¶ 4 Just then, Appellant drove his pickup truck off Pearce Mill Road and continued west through the parking lot for approximately four hundred feet, thereby passing to the right of the stopped traffic. N.T. at 5, 7, 12-13. According to Sergeant Trae-ger, Appellant nearly struck the geese as he quickly trekked through the lot in an *351apparent attempt to reenter Pearce Mill Road ahead of the traffic that had since resumed travel. N.T. at 5. Sergeant Traeger believed Appellant had thus created an accident risk by dangerously passing on the right in violation of Section 3304.1 Sergeant Traeger responded by intercepting Appellant in the parking lot before Appellant could merge back onto Pearce Mill Road. N.T. at 5, 6.

¶ 5 Sergeant Traeger alighted from his patrol car and walked to the pickup, where he questioned Appellant through the open driver-side window. During the interview, a moderate smell of alcohol emanated from Appellant, and Sergeant Traeger additionally noticed Appellant’s blood shot eyes, slurred speech, and weaving torso as he sat in his truck. Appellant failed the sobriety test that followed, and his blood alcohol content (“BAC”) was ultimately determined to be .28 percent. N.T. 11/2/98 at 7.

¶ 6 The Commonwealth charged Appellant with two counts of DUI and one count of OVR, as noted supra. At his suppression hearing, Appellant advanced alternate theories for the suppression of the BAC evidence against him. First, Appellant contended that Sergeant Traeger could not properly base the stop on a Section 3304 violation since Pearce Mill Road and the parking lot form a continuous roadway with no obstructions between them such that Appellant could not have driven “off the roadway” as prohibited under the statute. In the alternative, Appellant argued that he was driving on a trafficway separate from Pearce Mill Road when he was pulled over and that, therefore, he could not have overtaken cars on the right as contemplated in Section 3304.

¶ 7 The Commonwealth countered that the parking lot was obviously separate from the roadway, even if Pearce Mill Road and the parking lot formed a continuous span of asphalt, as a solid white line on the right edge of the road demarcated the boundary between the road and the lot. Denying Appellant’s alternate theory, the Commonwealth argued that the totality of the unusual circumstances involved with Appellant’s maneuver gave Sergeant Traeger reasonable and articulable grounds to believe that Appellant had violated Section 3304 so as to justify executing the stop.

¶ 8 The suppression court held that reasonable and articulable grounds existed to support Sergeant Traeger’s belief that Appellant violated Section 3304 with his attempt to circumvent traffic by driving through the parking lot. Citing Commonwealth v. Benton, 440 Pa.Super. 441, 655 A.2d 1030 (1995), the court reasoned that that the Sergeant’s reasonable belief alone — even if it was mistaken — that a motor vehicle violation occurred sufficed to allow him to stop Appellant’s pickup. Accordingly, the court denied Appellant’s suppression motion and scheduled the case for trial.

¶ 9 On November 2,1998, Appellant proceeded to a bench trial where he was found guilty of the above charges. The court sentenced Appellant to serve forty-eight hours imprisonment with two years’ probation to run concurrent, to undergo alcohol evaluation and attend alcohol safe driving school, and to pay a three hundred dollar ($300.00) fine and additional court costs.

¶ 10 This timely appeal followed. Appellant has filed a concise statement of mat*352ters complained of on appeal pursuant to Pa.R.A.P.1925(b), to which the court has responded with its opinion pursuant to Pa. R.A.P.1925(a). Herein, Appellant claims that the suppression court erred in holding that Sergeant Traeger had reasonable and articulable grounds for stopping his truck when Appellant legally passed stopped traffic by driving through the parking lot. With no obstruction in his way, Appellant argues, it was legal for him to pull out of his lane, enter the lot, drive across it, and return to the road. Appellant contests that the resultant stop, therefore, was unlawful. We disagree.

¶ 11 While an actual violation of the Motor Vehicle Code need not ultimately be established to validate a vehicle stop, a police officer must have a reasonable and articulable belief that a vehicle or driver is in violation of the Motor Vehicle Code in order to lawfully stop the vehicle. 75 Pa. C.S.A. § 6308(b); Commonwealth v. Benton, supra. The plain language of Section 3304 clearly prohibits a driver from passing on the right unless, inter alia, the movement can be made in safety. 75 Pa. C.S.A. § 3304(b).

¶ 12 The evidence established that it was not unreasonable for Sergeant Traeger to consider Appellant’s vehicle as part of the flow of traffic on Pearce Mill Road rather than as part of a separate traffic pattern in the parking lot. Appellant simply swung his truck wide of the road and onto the adjacent lot in an obvious attempt to improve his position on Pearce Mill Road. Appellant drove parallel to, and in constant proximity to, Pearce Mill Road during his approximately 400 foot trip through the parking lot, and he attempted to return to the road once he had passed the traffic. Thus, although it had entered a separate trafficway, the orientation of Appellant’s vehicle remained at all times with the flow of traffic on Pearce Mill Road such that it was reasonable to conclude that Appellant was overtaking and passing upon the right of other vehicles as contemplated in § 3304.2

¶ 13 'Moreover, the facts support Sergeant Traeger’s belief that Appellant failed to execute his pass in safety, as Appellant’s detour was clearly done in disregard of a potential traffic hazard that had prompted the other drivers to stop. Indeed, Appellant nearly struck the geese over in his attempt to pass the cars that were resuming travel on Pearce Mill road. Sergeant Traeger’s observations, therefore, reasonably led to his belief that Appellant had executed an unsafe and unlawful pass on the right of traffic and warranted his ultimate stop of Appellant.

¶ 14 In sum, Sergeant Traeger exercised his discretion in stopping Appellant not on pretext but on a reasonable and articulable basis legislatively recognized as important to keep roadways safe and accidents to a minimum. The investigation into Appellant’s manner of driving was, thus, lawful, and was not grounds for the suppression of physical evidence used to convict Appellant. Accordingly, we find Appellant’s claim to be without merit.

¶ 15 Affirmed.

¶ 16 Dissenting opinion by CERCONE, President Judge Emeritus.

. Section 3304 provides:

(a) General rule. — the driver of a vehicle may overtake and pass upon the right of another vehicle only under one of the following conditions:
(1) When the vehicle overtaken is making or about to make a left turn, except that such movement shall not be made by driving off the berm or shoulder of the highway.
(2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaken vehicle, except that such movement shall not be made by driving off the roadway.
(b) Limitation. — No passing movement under this section shall be made unless the movement can be made in safety.

. While § 3304 limits to two the conditions under which a driver may lawfully pass upon the right of another vehicle, it does not limit the possible unlawful means of passing on the right. Indeed, any pass upon the right made in the absence of both conditions enumerated in § 3304 is unlawful. The dissent's suggestion, therefore, that only § 3304(a)(2) is potentially applicable to the within case is without merit. The critical question here is whether reason allowed Sergeant Traeger to conclude that Appellant was overtaking and passing vehicles for purposes of § 3304 when Appellant was traveling in a trafficway legally distinct from, albeit adjacent to, Pearce Mill Road. Where the evidence is undisputed that Appellant drove his vehicle off of a roadway and onto a contiguous, unpartitioned lot, remained proximate to the roadway at all times, and made an obvious attempt to advance beyond the traffic so as to reenter the open roadway ahead, we cannot hold as unreasonable Sergeant Traeger’s belief that Appellant essentially remained as part of the roadway's traffic pattern so as to bring his pass under the ambit of § 3304.