Com. v. Sims, A. ( 2015 )

J-S65029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON HENRY SIMS,
Appellant No. 3212 EDA 2014
Appeal from the Judgment of Sentence November 14, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006046-2013
BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 24, 2015
Appellant, Aaron Henry Sims, appeals from the judgment of sentence
entered following his convictions of three counts of driving under the
influence (“DUI”). We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
By way of background, Officer James Gibbas (“Officer
Gibbas”) currently works for the Towamencin Township Police
Department. Officer Gibbas has made over fifty Driving Under
the Influence (“DUI”) arrests during his five year tenure with the
Towamencin Township Police Department. Additionally, Officer
Gibbas has received police training on detecting signs of DUI
driving.
At approximately 2:00 a.m. on Friday, May 17, 2013,
Officer Gibbas was on patrol duty in a fully marked police car at
the intersection of Forty Foot Road and Sumneytown Pike in
Towamencin Township, Montgomery County, Pennsylvania. Due
to the number of bars nearby, that intersection has a history of
DUI arrests. Officer Gibbas was conducting a selective
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enforcement of the intersection for DUI drivers at a time when
the bars were closing.
While monitoring the intersection, Officer Gibbas observed
Appellant driving a blue Ford Explorer, traveling southbound on
Forty Foot Road. Officer Gibbas observed Appellant stop at a red
light on Forty Foot Road and Sumneytown Pike. Officer Gibbas
also observed a second vehicle (“Vehicle 2”) abruptly pull behind
Appellant’s vehicle and stop at the red light. The stop was so
abrupt that Officer Gibbas thought the second vehicle was going
to crash into the rear end of Appellant’s vehicle. Thereafter,
Officer Gibbas observed a third vehicle (“Vehicle 3”) pull up
behind Vehicle 2 and stop at the red light.
Based on Vehicle 2’s abrupt stop, Officer Gibbas decided to
leave this monitoring site and follow the vehicles onto
Sumneytown Pike once the light turned green. While Officer
Gibbas was observing Vehicle 2 for DUI, he witnessed both
Appellant’s vehicle and Vehicle 2 drift across the double yellow
line and then drift back into [their] respective lane. Officer
Gibbas also observed both vehicles cross over the fog line before
returning back into their respective lane of travel.
Officer Gibbas testified that he observed Appellant’s
vehicle drift at least three times within a one mile area. He also
testified that Appellant’s drifting was separate and apart from
the second driver’s drifting. Officer Gibbas admitted that he
made his observations of Appellant’s vehicle about six to seven
car lengths away, with two other vehicles (Vehicle 2 and Vehicle
3) between their vehicles. Lastly, Officer Gibbas testified
Appellant was otherwise compliant with all other traffic laws.
Based on his observations of Appellant’s and Vehicle 2’s
traffic violations, Officer Gibbas turned on his sirens to conduct a
traffic stop of the vehicles. All three vehicles in front of Officer
Gibbas pulled over in response to the sirens. Officer Gibbas
radioed to Sergeant Wainwright and Officer Mahaffey for
assistance with the traffic stop. Vehicle 3 was investigated by
Sergeant Wainwright and Officer Mahaffey and eventually [was]
permitted to leave.
Both parties stipulated at the hearing that Sergeant
Wainwright and Officer Mahaffey assisted Officer Gibbas with the
investigatory detention of both Appellant’s vehicle and Vehicle 2.
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Specifically, both parties stipulated that Sergeant Wainwright
asked Appellant a number of cursory questions, including where
he was coming from. In response, Appellant admitted that he
was coming from Margaritas Restaurant where he consumed two
beers. Sergeant Wainwright conducted filed sobriety tests,
which led to Appellant’s arrest for DUI.
After Appellant was arrested, Officer Mahaffrey conducted
an investigatory search of his car, discovering small zip lock bags
of marijuana in the console that were seized for evidence.
Appellant was taken to Lansdale Hospital, where he submitted to
a chemical blood test.
On September 16, 2014, this court issued an order
denying Appellant’s Motion to Suppress.[1] A bench trial was
held on November 14, 2014, where Appellant was found guilty of
three counts of DUI1[2]. This appeal followed.
1
75 Pa.C.S. § 3802(b), § 3802(a)(1) and §3802(d)(2).
Trial Court Opinion, 2/10/15, at 1-3. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
1. Did the trial court err in denying Appellant’s Motion to
Suppress any and all evidence used against him at trial?
Appellant’s Brief at 6.
Appellant argues that Officer Gibbas failed to articulate with any
specificity facts that would give him reasonable suspicion to stop Appellant.
Appellant’s Brief at 10. Instead, Appellant asserts that the testimony was
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1
Appellant filed a motion to suppress “any and all items of evidence seized
by law enforcement officers.” Motion to Suppress, 1/21/14, at 2.
2
Appellant was sentenced to ninety days to five years of imprisonment, the
costs of prosecution, and a $1,500.00 fine.
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vague and included no evidence as to the severity of the drifting and
uncertainty as to how many times it occurred. Id. Appellant further
maintains that Officer Gibbas made assumptions based on prior DUI vehicle
stops and failed to articulate facts establishing reasonable suspicion. Id. at
13. Thus, it is Appellant’s position that the trial court erred by not granting
Appellant’s motion to suppress any and all evidence used against him at
trial. Id.
“When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the suppression
court’s factual findings and whether the inferences and legal conclusions
drawn by the suppression court from those findings are appropriate.”
Commonwealth v. Foglia, 979 A.2d 357, 360 (Pa. Super. 2009) (en banc).
“Where the Commonwealth prevailed on the suppression motion, we
consider only the evidence of the prosecution and so much of the defense
that remains uncontradicted.” Commonwealth v. Cooper, 994 A.2d 589,
591 (Pa. Super. 2010).
With respect to factual findings, we are mindful that it is the sole
province of the suppression court to weigh the credibility of the
witnesses. Further, the suppression court judge is entitled to
believe all, part or none of the evidence presented.
Commonwealth v. Swartz, 787 A.2d 1021, 1023 (Pa. Super. 2001) (en
banc). To the extent that the suppression court’s factual findings are
supported by the record, “we are bound by those facts and will only reverse
if the legal conclusions are in error.” Cooper, 994 A.2d at 591. As an
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appellate court, it is our duty “to determine if the suppression court properly
applied the law to the facts.” Commonwealth v. Maldonado, 14 A.3d
907, 910 (Pa. Super. 2011). 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, 1086-1087
(Pa. 2013).3
Regarding vehicle stops, the Motor Vehicle Code provides as follows:
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 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. § 6308(b).
“The threshold justification for a vehicle stop is reasonable suspicion.”
Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa. Super. 2007). The
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3
In L.J., our Supreme Court held that our scope of review from a
suppression ruling is limited to the evidentiary record that was created at
the suppression hearing. L.J., 79 A.3d at 1087. Prior to L.J., this Court
routinely held that, when reviewing a suppression court’s ruling, our scope of
review included “the evidence presented both at the suppression hearing
and at trial.” Commonwealth v. Charleston, 16 A.3d 505, 516 (Pa.
Super. 2011) (quoting Commonwealth v. Chacko, 459 A.2d 311 (Pa.
1983)). L.J. thus narrowed our scope of review of suppression court rulings
to the evidence presented at the suppression hearing. In this case,
Appellant’s suppression hearing was held after L.J. was decided. Therefore,
the procedural rule announced in L.J. applies to the case at bar.
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police may stop a motorist on reasonable suspicion of DUI. 75 Pa.C.S.
§ 6308(b); Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008)
(“Extensive case law supports the conclusion [that] a vehicle stop for DUI
may be based on reasonable suspicion, as a post-stop investigation is
normally feasible.”); Commonwealth v. Sands, 887 A.2d 261, 270 (Pa.
Super. 2005) (“[A] suspected violation for DUI is in fact a scenario where
further investigation almost invariably leads to the most incriminating type
of evidence . . . This type of evidence can only be obtained by a stop and
investigation”). “In order to determine whether the police officer had
reasonable suspicion, the totality of the circumstances must be considered.
In making this determination, [a court] must give due weight . . . to the
specific reasonable inferences [the police officer] is entitled to draw from the
facts in light of his experience.” Commonwealth v. Hilliar, 943 A.2d 984,
990 (Pa. Super. 2008). “[T]he totality of the circumstances test does not
limit [an] inquiry to an examination of only those facts that clearly indicate
criminal conduct. Rather, even a combination of innocent facts, when taken
together, may warrant further investigation by the police officer.” Id.Further, our Supreme Court has stated, “[W]hen the existence of reasonable
suspicion combines with the expectation that the stop will allow light to be
shed on the relevant matters, the stop is not unconstitutional.” Chase, 960
A.2d at 115.
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This Court has ruled that erratic driving alone can impart a reasonable
suspicion of DUI. See Commonwealth v. Hughes, 908 A.2d 924, 926 (Pa.
Super. 2006) (reasonable suspicion to stop vehicle for DUI existed where, in
early morning hours, police observed vehicle swerving between left and right
lanes); Sands, 887 A.2d at 270 (reasonable suspicion to stop vehicle for
DUI existed where, in the early morning hours, police observed vehicle drift
across a roadway fog line and then slowly drift back into lane).
The provisions of the DUI statutes with which Appellant was charged
and convicted provide as follows:
§ 3802. Driving under influence of alcohol or controlled
substance
(a) General impairment.—
(1) An individual may not drive, operate or be in
actual physical control of the movement of a vehicle
after imbibing a sufficient amount of alcohol such
that the individual is rendered incapable of safely
driving, operating or being in actual physical control
of the movement of the vehicle.
* * *
(b) High rate of alcohol.--An individual may not drive, operate
or be in actual physical control of the movement of a vehicle
after imbibing a sufficient amount of alcohol such that the
alcohol concentration in the individual’s blood or breath is at
least 0.10% but less than 0.16% within two hours after the
individual has driven, operated or been in actual physical control
of the movement of the vehicle.
* * *
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(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
* * *
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the
individual’s ability to safely drive, operate or be in
actual physical control of the movement of the
vehicle.
75 Pa.C.S § 3802 (a)(1), (b), (d)(2).
In addressing Appellant’s issue, the trial court provided the following
analysis and conclusion:
In [the] instant case, Officer Gibbas testified to specific
and articulable facts that taken together create a reasonable
suspicion that [Appellant] was DUI. . . . [I]t [was] two o’clock in
the morning on a Friday, the time when bars close.
Officer Gibbas was conducting a selective enforcement at the
intersection of Forty Foot Road and Sumneytown Pike for
possible DUI drivers. The intersection is an area where Officer
Gibbas, as an experienced officer, knows its history of DUI
arrests. While monitoring the intersection, Officer Gibbas
observed three vehicles stop behind each other at a red light.
Vehicle 2’s stop was so abrupt that Officer Gibbas thought
Vehicle 2 was going to crash into [Appellant’s] vehicle. Based on
the second driver’s abrupt stop, Officer Gibbas followed the three
vehicles, whereby he witnessed [Appellant’s] vehicle drift across
the double yellow line as well as the fog line at least three times
in one mile.
Based on the totality of circumstances in this case,
[Appellant’s] drifting heightened the implication that he could be
DUI. . . . Officer Gibbas conducted a traffic stop of [Appellant’s]
vehicle for investigatory purposes. This Court concludes that
Officer Gibbas possessed reasonable suspicion based on his
experience with DUI arrests, his training with detecting DUI
signs and his specific articulable observations that [Appellant]
committed violations of the Motor Vehicle Code. Thus, the stop
of [Appellant’s] vehicle was lawful.
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Trial Court Opinion, 2/10/15, at 7-8.
The trial court’s summation of evidence is supported by the record.
Officer Gibbas was patrolling in the early morning hours at an intersection
known for its history of DUI arrests. N.T., 7/21/14, at 8-9. Officer Gibbas
provided the following testimony regarding Appellant’s erratic driving:
[Officer Gibbas]: I was focused on – initially focused on the
second vehicle that was in line. He is the one that made the
abrupt stop. While watching that vehicle I also noticed that both
that one and [Appellant’s vehicle] in front of it were drifting over
the double yellow line. I saw them drift over the line and then
back into the respective lane and then also cross over the fog
line before returning back to their lane of travel.
[Counsel]: And how many times specifically did you see
[Appellant’s] vehicle drift?
[Officer Gibbas]: I do not recall exactly, but between Forty Foot
Road and Troxel Road I would say it was approximately three
times just on my own personal – the way that I work I don’t stop
vehicles unless I see them, you know, cross lines at least three
times.
[Counsel]: And how far is that between these two areas?
[Officer Gibbas]: Approximately one mile.
Id. at 10-11. Officer Gibbas clarified that the two vehicles in front of him
did not drift in tandem, but drifted across the lines independently of one
another. Id. at 16-17. Officer Gibbas had a clear view of the two drifting
vehicles, including Appellant’s, that were in front of him. Id. at 19.
Given the totality of circumstances, Officer Gibbas had reasonable
suspicion that Appellant was driving under the influence. As a result, the
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stop of Appellant’s vehicle was lawful. Accordingly, the trial court did not err
in denying Appellant’s motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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