Com. v. Hollowell, S. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SUSAN LYNNE HOLLOWELL, :
:
Appellant : No. 740 WDA 2014
Appeal from the Judgment of Sentence April 8, 2014,
Court of Common Pleas, Mercer County,
Criminal Division at No. CP-43-CR-0001316-2013
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 18, 2015
Susan Lynne Hollowell (“Hollowell”) appeals from the judgment of
sentence entered on April 8, 2014 by the Court of Common Pleas of Mercer
County, Criminal Division, following her conviction of driving under the
influence of alcohol (“DUI”), highest rate of alcohol.1 For the reasons that
follow, we affirm.
The relevant facts and procedural history of this case are summarized
as follows. On July 19, 2013, at approximately 12:23 a.m., Officer Andreu
Foriska (“Officer Foriska”) of the Southwest Mercer County Regional Police
Department was on a patrol when he observed Hollowell’s vehicle, a dark
Pontiac Sunfire, traveling eastbound on Broadway Avenue in Shenango
Township. At the intersection of Broadway Avenue and New Castle Road,
1
75 Pa.C.S.A. § 3802(c).
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Officer Foriska observed Hollowell activate her right turn signal prior to
making a right-hand turn onto the southbound on-ramp to New Castle Road.
Officer Foriska testified that the right rear turn signal was flashing faster
than a normal operating turn signal. Although he did not know the exact
rate at which Hollowell’s right rear turn signal was flashing, Officer Foriska
estimated that it was flashing at a rate of 120 times per minute. Officer
Foriska stated that while he did not observe Hollowell’s right front turn
signal, in his experience, a rear turn signal flashing that rapidly indicated
that the corresponding front turn signal had burned out. When Officer
Foriska observed Hollowell activate her left turn signal prior to turning into a
gas station parking lot, he noticed that the left rear turn signal was flashing
at a normal rate. Officer Foriska therefore decided to stop Hollowell’s
vehicle.2
After Officer Foriska approached Hollowell’s vehicle and made contact
with her, he stated that he could smell the aroma of an alcoholic beverage
coming from inside her vehicle. Officer Foriska asked Hollowell how much
2
Malfunctioning turn signals are a violation of section 4303(c) of the Motor
Vehicle Code. Section 4303(c) provides, in pertinent part, that “[e]very
motor vehicle … operated on a highway shall be equipped with a system of
turn signal lights and hazard warning lights in conformance with regulations
of the department.” 75 Pa.C.S.A. § 4303(c). Section 175.66(f) of the
Pennsylvania Code states that vehicles “shall be equipped with … turn signal
lamps … which under normal atmospheric conditions shall be capable of
being seen and distinguished during nighttime operation at a distance of 500
feet.” 67 Pa. Code § 175.66(f) (citing 75 Pa.C.S.A. § 4303(c)). Section
175.66(f)(4) further provides that “turn signals shall have a frequency of
flash between 60--120 flashes per minute.” 67 Pa. Code § 175.66(f)(4).
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she had to drink and she replied that she had consumed four alcoholic
beverages after 10:00 p.m. that evening. After putting Hollowell through a
series of sobriety tests, each of which she failed, Officer Foriska placed
Hollowell under arrest. Hollowell’s blood alcohol content (“BAC”) test
revealed that her BAC was .277%.
Hollowell was charged with DUI, highest rate of alcohol. On December
13, 2013, Hollowell filed a motion to suppress the evidence obtained as a
result of Officer Foriska stopping her vehicle. See Omnibus Motion for Pre-
Trial Relief, 12/13/13, at 1-2. On January 8, 2014, the trial court held a
hearing on Hollowell’s motion to suppress and subsequently denied the
motion the next day. See Trial Court Order, 1/9/14. On March 25, 2014,
following a stipulated, nonjury trial, the trial court found Hollowell guilty of
DUI, highest rate of alcohol, her second DUI-related offense. On April 8,
2014, the trial court sentenced Hollowell to ninety days to five years of
house arrest with electronic monitoring and ordered her to pay fines, costs,
and fees.
On May 2, 2014, Hollowell filed a timely notice of appeal. On May 8,
2014, the trial court ordered Hollowell to file a concise statement of the
errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure. On May 21, 2014, Hollowell filed a timely Rule
1925(b) statement.
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On appeal, Hollowell raises the following issue for our review: “Did the
[trial] court err in denying [Hollowell]’s motion to suppress and specifically in
holding that the arresting officer’s observation of [Hollowell]’s turn signal
rose to the level of probable cause for the officer to make a traffic stop[?]”
Hollowell’s Brief at 4. We review the trial court’s denial of a motion to
suppress to determine whether the record supports the trial court’s factual
findings and whether it reached its legal conclusions in error.
Commonwealth v. Enick, 70 A.3d 843, 845 (Pa. Super. 2013), appeal
denied, 85 A.3d 482 (Pa. 2014). “If the record supports the trial court’s
findings of fact, we will reverse only if the trial court’s legal conclusions are
incorrect.” Id. (citation omitted).
Hollowell’s question concerns the quantum of cause required in order
for a law enforcement officer to stop a vehicle for an alleged violation of the
Motor Vehicle Code. The relevant statutory authority is section 6308(b) of
the Motor Vehicle Code, which provides:
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.A. § 6308(b).
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Thus, section 6308(b) requires only reasonable suspicion in support of
a vehicle stop for gathering information necessary to enforce the Vehicle
Code violation. However, a police officer must have probable cause to
support a vehicle stop where the officer’s investigation following the stop
serves no “investigatory purpose relevant to the suspected [Vehicle Code]
violation.” Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super.
2010) (en banc), appeal denied, 25 A.3d 397 (Pa. 2011). Our Supreme
Court has explained:
Indeed, the language of § 6308 reflects this very
intent. Stops based on reasonable suspicion are
allowed for a stated investigatory purpose: “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). This
is conceptually equivalent to the purpose of a
Terry[3] stop. It does not allow all stops to be
based on the lower quantum—it merely allows this
for investigatory stops, consistent with the
requirements of both federal and state constitutions.
We interpret the legislature’s modification of § 6308
as merely eliminating the statutory requirement of a
greater level of information for a stop under the
Vehicle Code than is constitutionally required for all
other stops.
Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008). “[I]f the officer
has a legitimate expectation of investigatory results, the existence of
reasonable suspicion will allow the stop—if the officer has no such
expectations of learning additional relevant information concerning the
3
Terry v. Ohio, 392 U.S. 1 (1968).
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suspected criminal activity, the stop cannot be constitutionally permitted on
the basis of mere suspicion.” Id. at 115. Therefore, “when 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.”
Id.Here, Hollowell argues that this is a case where Officer Foriska had
nothing further to investigate after stopping her vehicle for the alleged turn
signal infractions, and thus reasonable suspicion could not support the stop.
See Hollowell’s Brief at 11. Rather, Hollowell contends that probable cause
was necessary to support Officer Foriska’s stop of her vehicle. See id. at 9-
11. Hollowell asserts that Officer Foriska’s mere estimation of the number of
times her right rear turn signal was flashing per minute was insufficient to
support the trial court’s determination that Officer Foriska had probable
cause to believe that she was in violation of the Vehicle Code. Id.Accordingly, in this case, we must first determine whether reasonable
suspicion or probable cause was necessary to support the stop of Hollowell’s
vehicle. Officer Foriska stopped Hollowell’s vehicle because in his
estimation, her right rear turn signal was flashing much faster than a normal
turn signal, which in his experience indicated that Hollowell’s right front turn
signal had burned out. See N.T., 1/8/14, at 5-6. These observations gave
rise to a suspected violation of the Motor Vehicle Code provision requiring
that vehicles have properly functioning turn signals. See 75 Pa.C.S.A.
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§ 4303(c); 67 Pa. Code § 175.66(f)(4); supra, n.2. Officer Foriska also
testified, however, that he did not time the exact rate at which Hollowell’s
right rear turn signal was flashing and that he was unable to observe that
her right front turn signal was out prior to conducting the stop. N.T.,
1/8/14, at 5, 7. Therefore, in this case, stopping Hollowell’s vehicle for
further investigation was necessary to determine whether she was in
violation of section 4403(c) of the Motor Vehicle Code because Officer
Foriska could not see whether Hollowell’s front right turn signal was
operational, having only observed her vehicle from behind. Because further
investigation was necessary to determine whether Hollowell had violated the
Motor Vehicle Code, Officer Foriska needed only reasonable suspicion to
support his stop of Hollowell’s vehicle. See Chase, 960 A.2d at 115-16.
Our Court has defined reasonable suspicion as follows:
Reasonable suspicion is a less stringent standard
than probable cause necessary to effectuate a
warrantless arrest, and depends on the information
possessed by police and its degree of reliability in
the totality of the circumstances. In order to justify
the seizure, a police officer must be able to point to
specific and articulable facts leading him to suspect
criminal activity is afoot. In assessing the totality of
the circumstances, courts must also afford due
weight to the specific, reasonable inferences drawn
from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered
collectively, may permit the investigative detention.
Thus, under the present version of Section 6308(b),
in order to establish reasonable suspicion, an officer
must be able to point to specific and articulable facts
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which led him to reasonably suspect a violation of
the Motor Vehicle Code[.]
Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (quotation
marks, citations, and footnote omitted; emphasis in the original).
We agree with the trial court’s decision not to suppress the evidence
obtained from Hollowell’s vehicle stop as the record supports a
determination that Officer Foriska had reasonable suspicion to believe that
Hollowell had violated the Motor Vehicle Code.4 The certified record on
appeal reveals that Officer Foriska was able to point to specific and
articulable facts that led him to reasonably suspect that Hollowell committed
a violation of the Motor Vehicle Code. Officer Foriska observed Hollowell’s
right rear turn signal flashing, at his estimation, at a rate at the end of the
range permitted by 67 Pa. Code § 175.66(f)(4). N.T., 1/8/14, at 5, 7.
Officer Foriska also observed Hollowell’s left rear turn signal, which was
flashing at a normal, much slower rate than her right rear turn signal. Id. at
6. Officer Foriska thus had reason to believe that Hollowell’s right rear turn
signal was not functioning properly, and based on his experience, that her
front right turn signal had burned out because her right rear turn signal was
flashing so rapidly. Id. at 5-6. Therefore, Officer Foriska had reasonable
suspicion to believe that Hollowell’s turn signals were not operating properly
and that she was in violation of section 4403(c) of the Motor Vehicle Code,
4
Notably, Hollowell does not argue that Officer Foriska lacked reasonable
suspicion to support a stop of her vehicle.
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thereby justifying the stop of her vehicle. Accordingly, the trial court did not
err by failing to suppress the evidence obtained through the stop of
Hollowell’s vehicle.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2015
5
We note that the manner in which we reach our decision differs from that
of the trial court. See Trial Court Opinion, 6/27/14, at 2-3. “We can affirm
the [trial] court’s decision if there is any basis to support it, even if we rely
on different grounds to affirm.” Commonwealth v. Lewis, 39 A.3d 341,
345 (Pa. Super. 2012).
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